LEGAL MEMORANDUM

TO: FROM:

Atty. Riza Racho-Baldovino Michelle Mae Andoy Hannah Chloe Cano Al Philip Geli Kristine Javier I LLB Manresa

DATE: RE:

September 17, 2012 SPO2 Rod Salva case Admissibility of the counter-affidavit as an admission or extra-judicial confession

Questions Presented Is a retired assistant prosecutor authorized to administer a preliminary investigation? Is the counter-affidavit obtained under such circumstance valid? Are the statements in the said affidavit be admissible in court as evidence as an admission or an extra-judicial confession?

Short Answers The counter-affidavit administered by a retired assistant prosecutor was admitted as evidence in the case of Ladiana vs. People, G. R. No. 144293. Rule 112, Section 2 (d) of the Rules of Court includes prosecutors, their assistants, judges of Municipal Trial Courts and other officers who might be authorized by law to conduct preliminary investigations. Admissions and extra-judicial confessions are generally not admissible as evidence against the accused as mandated in the Constitution. The Court, however, maintains in the case of Ladiana vs. People, G. R. 144293 that this only applies in admissions and confessions obtained in custodial interrogation. The counter-affidavit in question then is therefore admissible since it was obtained in a preliminary investigation. People vs. Buntag, G.R. No. 123970 and People vs. Lorenzo, G.R. No. 110107 provides for the difference between admission and extra-judicial confession.

Statement of Facts The accused, Senior Police Officer II Rod Salva, was charged with consummated murder. During the preliminary investigation, he executed a sworn counter-affidavit subscribed before retired Assistant Prosecutor Guzman. In his affidavit, SPO2 Salva allegedly admitted to shooting the victim in the head, which lead to the victims death. However, he claims that he only did it for self-defense.

Discussion A preliminary investigation is a vital requirement for an accused to comply. It is part of the procedure in criminal cases. It is defined in the first paragraph of Section 1, Rule 112, of the 2000 Revised Rules of Criminal Procedure as Amended, and repeated in the case of Ladiana vs. People, to wit:
Section 1. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

It is conducted primarily for two reasons. The first one is stated in the case of Salonga vs. Cruz Pao:
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial xxx It is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused.

The second reason is for the State in general. These two reasons are again mentioned in the case of Tandoc vs. Resultan to which the Court said:
The rationale of preliminary investigation is to protect the accused from the inconvenience, expense and burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer. It is also intended to protect the state from having to conduct useless and expensive trials.

As a matter of course, without having preliminary investigations, trials can progress just because people can file it even without probable cause. If that is the case, the already clogged dockets of courts will even get worse. A preliminary investigation is totally different from the trial or hearing of the case itself. The court said in Ang-Abaya vs. Ang:
A preliminary investigation is in effect a realistic judicial appraisal of the merits of the case; sufficient proof of the guilt of the criminal respondent must be adduced so that when the case is tried, the trial court may not be bound, as a matter of law, to order an acquittal. Although a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair; the officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused.

A preliminary investigation only needs to determine whether there is sufficient ground or probable cause to believe that a crime really happened, and that the accused therein is possibly guilty of such crime. It does not need to determine whether he or she is actually guilty or not, as that is proven in trial.

Preliminary investigation is required before a complaint or information is filed. The period required is stated in Rule 112, of the 2000 Revised Rules of Criminal Procedure as Amended.
Section 1. Except as provided in Sec. 7 of this Rule, as preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to a fine. (1a)

Section 7 as mentioned in this provision refers to warrantless arrests. In the case at bar, SPO2 Salva was charged with murder. Murder as defined in Art. 48 of the Revised Penal Code have the prescribed penalty of reclusion temporal in its maximum period (from 17 years, 4 months and 1 day to 20 years) to death. Therefore, it is within the requirement of at least four (4) years, two (2) months and one (1) day without regard to a fine. Thus, the circumstance requires a preliminary investigation. It is administered by the following officials as stated in Rule 112, of the 2000 Revised Rules of Criminal Procedure as amended:
Section 2. The following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (c) National and Regional State Prosecutors; and (d) Other officers as may be authorized by law. Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. (2a)

In the present case, it was a retired assistant prosecutor Guzman who attended to Salvas case. Being an Assistant Prosecutor, Mr. Guzman is authorized under Section 2 (a) to conduct such preliminary investigation. Although cases of felony normally fall under the prosecutor, some Assistant Prosecutors are permitted to handle such cases. The Court in the case of Ladiana vs. People accepted the retired Assistant Prosecutor of Laguna, Mario Talavera Cortez as an authorized person to conduct such procedure. He was one of the witnesses presented by the prosecution. Therefore, in the instant case, Mr. Guzman is allowed to do so even though he is already retired. According to Section 3 of Rule 112 of the 2000 Revised Rules of Court, after the filing of a complaint affidavit subscribed and sworn to by the complainant, the investigating prosecutor shall issue a subpoena to the respondent. Attached to it is a copy of the complaint and the supporting affidavits and documents. It is by then that the respondent, herein accused SPO2 Rod Salva submitted his counter-affidavit. A counter-affidavit is one made and presented in contradiction or opposition to an affidavit which is made the basis or support of a motion or application, as defined in Blacks Legal Dictionary. The main issue is whether or not a counter-affidavit of the accused is admissible as his admission or confession. Section III of the 1987 Constitution says:
Section 2 (3). Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

However, the Court explained in the case of Ladiana vs. People that this provision applies only to admissions and extra-judicial confessions obtained during custodial investigations or in-custody interrogations. It is due to the possibility that they might be taken under duress or coercion. If the admission or confession contained in an affidavit was obtained from custodial interrogation or questioning, then it cannot be used against him as it violates Section 2 paragraph 3 of the Bill of Rights. However, the Court in the said case explained further:
Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be considered as being under custodial investigation. In fact, this Court has unequivocally declared that a defendant on trial or under preliminary investigation is not under custodial interrogation.

Thus, admissions and confessions under a preliminary investigation, which cannot, by any means, be considered as a custodial investigation, are admissible as evidence. Additionally, such confessions made outside the court, specifically termed as extra-judicial confessions, are admissible in evidence under Section 21, Rules of Evidence of the Rules of Court as long as it is proven by witnesses who had heard the speakers words constituting the confession. In the case at bar, however, the counter-affidavit produced from the preliminary investigation is only an admission and not an extra-judicial confession. Rule 130 of the Revised Rules on Evidence provides for the definition of both as follows:
Section 26. Admission of a party. The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. Section 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him.

In the present case, the accused SPO2 Rod Salva stated in his counter-affidavit that he shot the victim in the head, thereby admitting the act of shooting which eventually lead to the victims death. Conjointly, he claimed that this was due to self-defense, thus excluding confession of guilt. The Supreme Court maintains the difference between the two in the more recent case of People vs. Buntag to wit:
In criminal cases, an admission is something less than a confession. It is but a statement of facts by the accused, direct or implied, which do not directly involve an acknowledgement of his guilt or of his criminal intent to commit the offense with which he is bound, against his interests, of the evidence or truths charged. It is an acknowledgement of some facts or circumstances which in itself, is sufficient to authorize a conviction and which tends only to establish the ultimate facts of guilt. A confession on the other hand, is an acknowledgement, in express terms, of his guilt of the crime charged.

In the case of People vs. Lorenzo, a number of books on criminal evidence were cited including Harry Clay Underhill, who further distinguishes confession from admission. He said that the former is an acknowledgement of all the facts, which constitute the crime or of the guilt of the crime charged. On the other hand, the latter is only an acknowledged fact, which needs other facts to raise an inference of guilt. Nevertheless, whether such statements in the counter-affidavit are classified under admission or extra-judicial confession, it is admissible as evidence against him. Having admitted that he had killed the victim, SPO2 Rod Salva, now has the burden of proving that the killing was justified and no criminal liability was incurred. Admission in a counter-affidavit, which is made under oath, as in this case, is an evidence of great weight against the affiant himself.

Conclusion First, the fact that it was administered by a retired assistant prosecutor does not make a fatal irregularity on the sworn statements in the counter-affidavit executed by the accused SPO2 Salva. Second, his counter-affidavit was obtained in a preliminary investigation and not in a custodial investigation. This makes it as an admissible evidence against him, due to admission of guilt.