and Operator Isaias Ervas, was suddenly boarded, with the use
THIRD DIVISION of an aluminum ladder, by seven fully armed pirates led by
[G.R. No. 111709. August 30, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. ROGER P. TULIN, VIRGILIO
I. LOYOLA, CECILIO O. CHANGCO,
ANDRES C. INFANTE, CHEONG SAN
HIONG, and JOHN DOES, accused-
appellants.
DECISION
MELO, J.:
This is one of the older cases which unfortunately has
remained in docket of the Court for sometime. It was
reassigned, together with other similar cases, to
undersigned ponente in pursuance of A.M. No. 00-9-03-SC
dated February 27, 2001.
In the evening of March 2, 1991, M/T Tabangao, a cargo
vessel owned by the PNOC Shipping and Transport
Corporation, loaded with 2,000 barrels of kerosene, 2,600
barrels of regular gasoline, and 40,000 barrels of diesel oil,
with a total value of P40,426,793,87. was sailing off the coast
of Mindoro near Silonay Island.
The vessel, manned by 21 crew members, including
Captain Edilberto Libo-on, Second Mate Christian Torralba,
Emilio Changco, older brother of accused-appellant Cecilio
Changco. The pirates, including accused-appellants Tulin,
Loyola, and Infante, Jr. were armed with M-16 rifles, .45 and
.38 caliber handguns, and bolos. They detained the crew and
took complete control of the vessel. Thereafter, accused-
appellant Loyola ordered three crew members to paint over,
using black paint, the name "M/T Tabangao" on the front and
rear portions of the vessel, as well as the PNOC logo on the
chimney of the vessel. The vessel was then painted with the
name "Galilee," with registry at San Lorenzo, Honduras. The
crew was forced to sail to Singapore, all the while sending
misleading radio messages to PNOC that the ship was
undergoing repairs.
PNOC, after losing radio contact with the vessel, reported
the disappearance of the vessel to the Philippine Coast Guard
and secured the assistance of the Philippine Air Force and the
Philippine Navy. However, search and rescue operations
yielded negative results. On March 9, 1991, the ship arrived in
the vicinity of Singapore and cruised around the area
presumably to await another vessel which, however, failed to
arrive. The pirates were thus forced to return to the Philippines
on March 14, 1991, arriving at Calatagan, Batangas on March
20, 1991 where it remained at sea.
On March 28, 1991, the "M/T Tabangao" again sailed to
and anchored about 10 to 18 nautical miles from Singapore's
shoreline where another vessel called "Navi Pride" anchored
beside it. Emilio Changco ordered the crew of "M/T Tabangao"
to transfer the vessel's cargo to the hold of "Navi Pride".
Accused-appellant Cheong San Hiong supervised the crew of
"Navi Pride" in receiving the cargo. The transfer, after an
interruption, with both vessels leaving the area, was completed
on March 30,1991.
On March 30, 1991, "M/T Tabangao" returned to the same
area and completed the transfer of cargo to "Navi Pride."
On April 8, 1991, "M/T Tabangao" arrived at Calatagan,
Batangas, but the vessel remained at sea. On April 10, 1991,
the members of the crew were released in three batches with
the stern warning not to report the incident to government
authorities for a period of two days or until April 12, 1991,
otherwise they would be killed. The first batch was fetched
from the shoreline by a newly painted passenger jeep driven by
accused-appellant Cecilio Changco, brother of Emilio
Changco, who brought them to Imus, Cavite and gave
P20,000.00 to Captain Libo-on for fare of the crew in
proceeding to their respective homes. The second batch was
fetched by accused-appellant Changco at midnight of April 10,
1991 and were brought to different places in Metro Manila.
On April 12, 1991, the Chief Engineer, accompanied by
the members of the crew, called the PNOC Shipping and
Transport Corporation office to report the incident. The crew
members were brought to the Coast Guard Office for
investigation. The incident was also reported to the National
Bureau of Investigation where the officers and members of the
crew executed sworn statements regarding the incident.
A series of arrests was thereafter effected as follows:
a. On May 19, 1991, the NBI received verified information
that the pirates were present at U.K. Beach, Balibago,
Calatagan, Batangas. After three days of surveillance, accused-
appellant Tulin was arrested and brought to the NBI
headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola were
arrested by chance at Aguinaldo Hi-way by NBI agents as the
latter were pursuing the mastermind, who managed to evade
arrest.
c. On May 20, 1991, accused-appellants Hiong and
Changco were arrested at the lobby of Alpha Hotel in Batangas
City.
On October 24 1991, an Information charging qualified
piracy or violation of Presidential Decree No. 532 (piracy in
Philippine Waters) was filed against accused-appellants, as
follows:
The undersigned State Prosecutor accuses ROGER P.
TULIN, VIRGILIO I. LOYOLA, CECILIO O.
CHANGCO, ANDRES C. INFANTE, and CHEONG
SAN HIONG, and nine (9) other JOHN DOES of
qualified piracy (Violation of P.D. No. 532), committed
as follows:
That on or about and during the period from March 2 to
April 10, 1991, both dates inclusive, and for sometime
prior and subsequent thereto, and within the jurisdiction
of this Honorable Court, the said accused, then manning
a motor launch and armed with high powered guns,
conspiring and confederating together and mutually
helping one another, did then and there, wilfully,
unlawfully and feloniously fire upon, board and seize
while in the Philippine waters M/T PNOC
TABANGCO loaded with petroleum products, together
with the complement and crew members, employing
violence against or intimidation of persons or force
upon things, then direct the vessel to proceed to
Singapore where the cargoes were unloaded and
thereafter returned to the Philippines on April 10, 1991,
in violation of the aforesaid law.
CONTRARY TO
LAW.
(pp.
119-20, Rollo.)
This was docketed as Criminal Case No. 91-94896 before
Branch 49 of the Regional Trial Court of the National Capital
Judicial Region stationed in Manila. Upon arraignment,
accused-appellants pleaded not guilty to the charge. Trial
thereupon ensued.
Accused-appellants Tulin, Infante, Jr., and Loyola,
notwithstanding some inconsistencies in their testimony as to
where they were on March 1, 1991, maintained the defense of
denial, and disputed the charge, as well as the transfer of any
cargo from "M/T Tabangao" to the "Navi Pride." All of them
claimed having their own respective sources of
livelihood. Their story is to the effect that on March 2, 1991,
while they were conversing by the beach, a red speedboat with
Captain Edilberto Liboon and Second Mate Christian Torralba
on board, approached the seashore. Captain Liboon inquired
from the three if they wanted to work in a vessel. They were
told that the work was light and that each worker was to be
paid P3,000.00 a month with additional compensation if they
worked beyond that period. They agreed even though they had
no sea-going experience. On board, they cooked, cleaned the
vessel, prepared coffee, and ran errands for the officers. They
denied having gone to Singapore, claiming that the vessel only
went to Batangas. Upon arrival thereat in the morning of
March 21, 1991, they were paid P1,000.00 each as salary for
nineteen days of work, and were told that the balance would be
remitted to their addresses. There was neither receipt nor
contracts of employment signed by the parties.
Accused-appellant Changco categorically denied the
charge, averring that he was at home sleeping on April 10,
1991. He testified that he is the younger brother of Emilio
Changco, Jr.
Accused-appellant Cheong San Hiong, also known as
Ramzan Ali, adduced evidence that he studied in Sydney,
Australia, obtaining the "Certificate" as Chief Officer, and later
completed the course as a "Master" of a vessel, working as
such for two years on board a vessel. He was employed at Navi
Marine Services, Pte., Ltd. as Port Captain. The company was
engaged in the business of trading petroleum, including shipoil,
bunker lube oil, and petroleum to domestic and international
markets. It owned four vessels, one of which was "Navi Pride."
On March 2, 1991, the day before "M/T Tabangao" was
seized by Emilio Changco and his cohorts, Hiong's name was
listed in the company's letter to the Mercantile Section of the
Maritime Department of the Singapore government as the radio
telephone operator on board the vessel "Ching Ma."
The company was then dealing for the first time with Paul
Gan, a Singaporean broker, who offered to sell to the former
bunker oil for the amount of 300,000.00 Singapore dollars.
After the company paid over one-half of the aforesaid amount
to Paul Gan, the latter, together with Joseph Ng, Operations
Superintendent of the firm, proceeded to the high seas on board
"Navi Pride" but failed to locate the contact vessel.
The transaction with Paul Gan finally pushed through on
March 27, 1991. Hiong, upon his return on board the vessel
"Ching Ma," was assigned to supervise a ship-to-ship transfer
of diesel oil off the port of Singapore, the contact vessel to be
designated by Paul Gan. Hiong was ordered to ascertain the
quantity and quality of the oil and was given the amount of
300,000.00 Singapore Dollars for the purchase. Hiong, together
with Paul Gan, and the surveyor William Yao, on board "Navi
Pride" sailed toward a vessel called "M/T Galilee". Hiong was
told that "M/T Galilee" would be making the transfer.
Although no inspection of "Navi Pride" was made by the port
authorities before departure, Navi Marine Services, Pte., Ltd.
was able to procure a port clearance upon submission of
General Declaration and crew list. Hiong, Paul Gan, and the
brokers were not in the crew list submitted and did not pass
through the immigration. The General Declaration falsely
reflected that the vessel carried 11,900 tons.
On March 28, 1991, "Navi Pride" reached the location of
"M/T Galilee". The brokers then told the Captain of the vessel
to ship-side with "M/T Galilee" and then transfer of the oil
transpired. Hiong and the surveyor William Yao met the
Captain of "M/T Galilee," called "Captain Bobby" (who later
turned out to be Emilio Changco). Hiong claimed that he did
not ask for the full name of Changco nor did he ask for the
latter's personal card.
Upon completion of the transfer, Hiong took the soundings
of the tanks in the "Navi Pride" and took samples of the cargo.
The surveyor prepared the survey report which "Captain
Bobby" signed under the name "Roberto Castillo." Hiong then
handed the payment to Paul Gan and William Yao. Upon
arrival at Singapore in the morning of March 29, 1991, Hiong
reported the quantity and quality of the cargo to the company.
Thereafter, Hiong was again asked to supervise another
transfer of oil purchased by the firm " from "M/T Galilee" to
"Navi Pride." The same procedure as in the first transfer was
observed. This time, Hiong was told that that there were food
and drinks, including beer, purchased by the company for the
crew of "M/T Galilee. The transfer took ten hours and was
completed on March 30, 1991. Paul Gan was paid in full for
the transfer.
On April 29 or 30, 1991, Emilio Changco intimated to
Hiong that he had four vessels and wanted to offer its cargo to
cargo operators. Hiong was asked to act as a broker or ship
agent for the sale of the cargo in Singapore. Hiong went to the
Philippines to discuss the matter with Emilio Changco, who
laid out the details of the new transfer, this time with "M/T
Polaris" as contact vessel. Hiong was told that the vessel was
scheduled to arrive at the port of Batangas that weekend. After
being billeted at Alpha Hotel in Batangas City, where Hiong
checked in under the name "SONNY CSH." A person by the
name of "KEVIN OCAMPO," who later turned out to be
Emilio Changco himself, also checked in at Alpha Hotel. From
accused-appellant Cecilio Changco, Hiong found out that the
vessel was not arriving. Hiong was thereafter arrested by NBI
agents.
After trial, a 95-page decision was rendered convicting
accused-appellants of the crime charged. The dispositive
portion of said decision reads:
WHEREFORE, in the light of the foregoing
considerations, judgment is hereby rendered by this
Court finding the accused Roger Tulin, Virgilio Loyola,
Andres Infante, Jr. and Cecilio Changco guilty beyond
reasonable doubt, as principals, of the crime of piracy in
Philippine Waters defined in Section 2(d) of
Presidential Decree No. 532 and the accused Cheong
San Hiong, as accomplice, to said crime. Under Section
3(a) of the said law, the penalty for the principals of said
crime is mandatory death. However, considering that,
under the 1987 Constitution, the Court cannot impose
the death penalty, the accused Roger Tulin, Virgilio
Loyola, Andres Infante, ]r., and Cecilio Changco are
hereby each meted the penalty of RECLUSION
PERPETUA, with all the accessory penalties of the law.
The accused Cheong San Hiong is hereby meted the
penalty of RECLUSION PERPETUA, pursuant to
Article 52 of the Revised Penal Code in relation to
Section 5 of PD 532. The accused Roger Tulin, Virgilio
Loyola, Andres Infante, Jr. and Cecilio Changco are
hereby ordered to return to the PNOC Shipping and
Transport Corporation the "M/T Tabangao" or if the
accused can no longer return the same, the said accused
are hereby ordered to remit, jointly and severally, to
said corporation the value thereof in the amount of
P11,240,000.00 Philippine Currency, with interests
thereon, at the rate of 6% per annum from March 2,
1991 until the said amount is paid in full. All the
accused including Cheong San Hiong are hereby
ordered to return to the Caltex Philippines, Inc. the
cargo of the "M/T Tabangao", or if the accused can no
longer return the said cargo to said corporation, all the
accused are hereby condemned to pay, jointly and
severally, to the Caltex Refinery, Inc., the value of said
cargo in the amount of P40,426,793.87, Philippine
Currency plus interests until said amount is paid in full.
After the accused Cheong San Hiong has served his
sentence, he shall be deported to Singapore.
All the accused shall be credited for the full period of
their detention at the National Bureau of Investigation
and the City Jail of Manila during the pendency of this
case provided that they agreed in writing to abide by
and comply strictly with the rules and regulations of the
City Jail of Manila and the National Bureau of
Investigation. With costs against all the accused.
SO ORDERED.
(pp. 149-150, Rollo.)
The matter was then elevated to this Court. The arguments
of accused-appellants may be summarized as follows:
Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and
Cecilio O. Changco
Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio
Changco assert that the trial court erred in allowing them to
adopt the proceedings taken during the time they were being
represented by Mr. Tomas Posadas, a non-lawyer, thereby
depriving them of their constitutional right to procedural due
process.
In this regard, said accused-appellants narrate that Mr.
Posadas entered his appearance as counsel for all of them.
However, in the course of the proceedings, or on February 11,
1992, the trial court discovered that Mr. Posadas was not a
member of the Philippine Bar. This was after Mr. Posadas had
presented and examined seven witnesses for the accused.
Further, accused-appellants Tulin, Loyola, Infante,
Cecilio, Changco uniformly contend that during the custodial
investigation, they were subjected to physical violence; were
forced to sign statements without being given the opportunity
to read the contents of the same; were denied assistance of
counsel, and were not informed of their rights, in violation of
their constitutional rights,
Said accused-appellants also argue that the trial court erred
in finding that the prosecution proved beyond reasonable doubt
that they committed the crime of qualified piracy. They allege
that the pirates were outnumbered by the crew who totaled 22
and who were not guarded at all times. The crew, so these
accused-appellants conclude, could have overpowered the
alleged pirates.
Cheong San Hiong
In his brief, Cheong argues that: (1) Republic Act No.
7659 in effect obliterated the crime committed by him; (2) the
trial court erred in declaring that the burden is lodged on him to
prove by clear and convincing evidence that he had no
knowledge that Emilio Changco and his cohorts attacked and
seized the "M/T Tabangao" and/or that the cargo of the vessel
was stolen or the subject of theft or robbery or piracy; (3) the
trial court erred in finding him guilty as an accomplice to the
crime of qualified piracy under Section 4 of Presidential
Decree No. 532 (Anti-Piracy and Anti-Robbery Law of 1974);
(4) the trial court erred in convicting and punishing him as an
accomplice when the acts allegedly committed by him were
done or executed outside of Philippine waters and territory,
stripping the Philippine courts of jurisdiction to hold him for
trial, to convict, and sentence; (5) the trial court erred in
making factual conclusions without evidence on record to
prove the same and which in fact are contrary to the evidence
adduced during trial; (6) the trial court erred in convicting him
as an accomplice under Section 4 of Presidential Decree No.
532 when he was charged as a principal by direct participation
under said decree, thus violating his constitutional right to be
informed of the nature and cause of the accusation against him.
Cheong also posits that the evidence against the other
accused-appellants do not prove any participation on his part in
the commission of the crime of qualified piracy. He further
argues that he had not in any way participated in the seajacking
of "M/T Tabangao" and in committing the crime of qualified
piracy, and that he was not aware that the vessel and its cargo
were pirated.
As legal basis for his appeal, he explains that he was
charged under the information with qualified piracy as
principal under Section 2 of Presidential Decree No. 532 which
refers to Philippine waters. In the case at bar, he argues that he
was convicted for acts done outside Philippine waters or
territory. For the State to have criminal jurisdiction, the act
must have been committed within its territory.
We affirm the conviction of all the accused-appellants.
 The issues of the instant case may be summarized as
follows: (1) what are the legal effects and implications of the
fact that a non-lawyer represented accused-appellants during
the trial?; (2) what are the legal effects and implications of the
absence of counsel during the custodial investigation?; (3) did
the trial court err in finding that the prosecution was able to
prove beyond reasonable doubt that accused-appellants
committed the crime of qualified piracy?; (4) did Republic Act
No. 7659 obliterate the crime committed by accused-appellant
Cheong?; and (5) can accused-appellant Cheong be convicted
as accomplice when he was not charged as such and when the
acts allegedly committed by him were done or executed outside
Philippine waters and territory?
On the first issue, the record reveals that a manifestation
(Exhibit "20", Record) was executed by accused-appellants
Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991,
stating that they were adopting the evidence adduced when
they were represented by a non-lawyer. Such waiver of the
right to sufficient representation during the trial as covered by
the due process clause shall only be valid if made with the full
assistance of a bona fide lawyer. During the trial, accused-
appellants, as represented by Atty. Abdul Basar, made a
categorical manifestation that said accused-appellants were
apprised of the nature and legal consequences of the subject
manifestation, and that they voluntarily and intelligently
executed the same. They also affirmed the truthfulness of its
contents when asked in open court (tsn, February 11, 1992, pp.
7-59). It is true that an accused person shall be entitled to be
present and to defend himself in person and by counsel at every
stage of the proceedings, from arraignment to promulgation of
judgment (Section 1, Rule 115, Revised Rules of Criminal
Procedure). This is hinged on the fact that a layman is not
versed on the technicalities of trial. However, it is also
provided by law that "[r]ights may be waived, unless the
waiver is contrary to law, public order, public policy, morals,
or good customs or prejudicial to a third person with right
recognized by law." (Article 6, Civil Code of the Philippines).
Thus, the same section of Rule 115 adds that "[u]pon motion,
the accused may be allowed to defend himself in person when
it sufficiently appears to the court that he can properly protect
his rights without the assistance of counsel." By analogy , but
without prejudice to the sanctions imposed by law for the
illegal practice of law, it is amply shown that the rights of
accused-appellants were sufficiently and properly protected by
the appearance of Mr. Tomas Posadas. An examination of the
record will show that he knew the technical rules of procedure.
Hence, we rule that there was a valid waiver of the right to
sufficient representation during the trial, considering that it was
unequivocally, knowingly, and intelligently made and with the
full assistance of a bona fide lawyer, Atty. Abdul Basar.
Accordingly, denial of due process cannot be successfully
invoked where a valid waiver of rights has been made (People
vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166
SCRA 680 [1988]).
However, we must quickly add that the right to counsel
during custodial investigation may not be waived except in
writing and in the presence of counsel.
Section 12, Article III of the Constitution reads:
SEC. 12. (1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of his
own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence
of counsel.
(2) No torture, force, violence, threat, intimidation, or
any other means which vitiate the free will shall be used
against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are
prohibited.
(3) Any confession or admission obtained in violation of
this or Section 17 hereof shall be inadmissible in
evidence against him.
(4) The law shall provide for penal and civil sanctions
for violations of this section as well as compensation to
and rehabilitation of victims of torture or similar
practices, and their families.
Such rights originated from Miranda v. Arizona (384 U. S.
436 [1966]) which gave birth to the so-called Miranda doctrine
which is to the effect that prior to any questioning during
custodial investigation, the person must be warned that he has a
right to remain silent, that any statement he gives may be used
as evidence against him, and that he has the right to the
presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly, and intelligently. The
Constitution even adds the more stringent requirement that the
waiver must be in writing and made in the presence of counsel.
Saliently, the absence of counsel during the execution of
the so-called confessions of the accused-appellants make them
invalid. In fact, the very basic reading of the Miranda rights
was not even shown in the case at bar. Paragraph [3] of the
aforestated Section 12 sets forth the so-called "fruit from the
poisonous tree doctrine," a phrase minted by Mr. Justice Felix
Frankfurter in the celebrated case of Nardone vs. United States
(308 U.S. 388 [1939]). According to this rule, once the primary
source (the "tree") is shown to have been unlawfully obtained,
any secondary or derivative evidence (the "fruit") derived from
it is also inadmissible. The rule is based on the principle that
evidence illegally obtained by the State should not be used to
gain other evidence because the originally illegally obtained
evidence taints all evidence subsequently obtained (People vs.
Alicando, 251 SCRA 293 [1995]). Thus, in this case, the
uncounselled extrajudicial confessions of accused-appellants,
without a valid waiver of the right to counsel, are inadmissible
and whatever information is derived therefrom shall be
regarded as likewise inadmissible in evidence against them.
However, regardless of the inadmissibility of the subject
confessions, there is sufficient evidence to convict accused-
appellants with moral certainty. We agree with the sound
deduction of the trial court that indeed, Emilio Changco
(Exhibits "U" and "UU") and accused-appellants Tulin, Loyola,
.and Infante, Jr. did conspire and confederate to commit the
crime charged. In the words of then trial judge, now Justice
Romeo J. Callejo of the Court of Appeals -
...The Prosecution presented to the Court an array of
witnesses, officers and members of the crew of the
"M/T Tabangao" no less, who identified and pointed to
the said Accused as among those who attacked and
seized, the "M/T Tabangao" on March 2, 1991, at about
6:30 o'clock in the afternoon, off Lubang Island,
Mindoro, with its cargo, and brought the said vessel,
with its cargo, and the officers and crew of the vessel, in
the vicinity of Horsebough Lighthouse, about sixty-six
nautical miles off the shoreline of Singapore and sold its
cargo to the Accused Cheong San Hiong upon which
the cargo was discharged from the "M/T Tabangao" to
the "Navi Pride" for the price of about $500,000.00
(American Dollars) on March 29, and 30, 1991...
xxx
xxx
xxx
The Master, the officers and members of the crew of the
"M/T Tabangao" were on board the vessel with the
Accused and their cohorts from March 2, 1991 up to
April 10, 1991 or for more than one (1) month. There
can be no scintilla of doubt in the mind of the Court that
the officers and crew of the vessel could and did see and
identify the seajackers and their leader. In fact,
immediately after the Accused were taken into custody
by the operatives of the National Bureau of
Investigation, Benjamin Suyo, Norberto Senosa,
Christian Torralba and Isaias Wervas executed their
"Joint Affidavit" (Exhibit "B") and pointed to and
identified the said Accused as some of the pirates.
xxx
xxx
xxx
Indeed, when they testified before this Court on their
defense, the three (3) Accused admitted to the Court that
they, in fact, boarded the said vessel in the evening of
March 2 1991 and remained on board when the vessel
sailed to its, destination, which turned out to be off the
port of Singapore.
(pp. 106-112, Rollo.)
We also agree with the trial court's finding that accused-
appellants' defense of denial is not supported by any hard
evidence but their bare testimony. Greater weight is given to
the categorical identification of the accused by the prosecution
witnesses than to the accused's plain denial of participation in
the commission of the crime (People v. Baccay, 284 SCRA 296
[1998]). Instead, accused-appellants Tulin, Loyola, and Infante,
Jr. narrated a patently desperate tale that they were hired by
three complete strangers (allegedly Captain Edilberto Liboon,
Second Mate Christian Torralba, and their companion) while
said accused-appellants were conversing with one another
along the seashore at Apkaya, Balibago, Calatagan, Batangas,
to work on board the "M/T Tabangao" which was then
anchored off-shore. And readily, said accused-appellants
agreed to work as cooks and handymen for an indefinite period
of time without even saying goodbye to their families, without
even knowing their destination or the details of their voyage,
without the personal effects needed for a long voyage at
sea. Such evidence is incredible and clearly not in accord with
human experience. As pointed out by the trial court, it is
incredible that Captain Liboon, Second Mate Torralba, and
their companion "had to leave the vessel at 9:30 o'clock in the
evening and venture in a completely unfamiliar place merely to
recruit five (5) cooks or handymen (p. 113, Rollo)."
Anent accused-appellant Changco's defense of denial with
the alibi that on May 14 and 17, he was at his place of work
and that on April 10, 1991, he was in his house in Bacoor,
Cavite, sleeping, suffice it to state that alibi is fundamentally
and inherently a weak defense, much more so when
uncorroborated by other witnesses (People v. Adora, 275
SCRA 441 [1997]) considering that it is easy to fabricate and
concoct, and difficult to disprove. Accused-appellant must
adduce clear and convincing evidence that, at about midnight
on April 10, 1991, it was physically impossible for him to have
been in Calatagan, Batangas. Changco not only failed to do
this, he was likewise unable to prove that he was in his place of
work on the dates aforestated.
It is doctrinal that the trial court's evaluation of the
credibility of a testimony is accorded the highest respect, for
trial courts have an untrammeled opportunity to observe
directly the demeanor of witnesses and, thus, to determine
whether a certain witness is telling the truth (People v. Obello,
284 SCRA 79 [1998]).
We likewise uphold the trial court's finding of
conspiracy. A conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony
and decide to commit it (Article 8, Revised Penal Code). To be
a conspirator, one need not participate in every detail of
execution; he need not even take part in every act or need not
even know the exact part to be performed by the others in the
execution of the conspiracy. As noted by the trial court, there
are times when conspirators are assigned separate and different
tasks which may appear unrelated to one another, but in fact,
constitute a whole and collective effort to achieve a common
criminal design.
We affirm the trial court's finding that Emilio Changco,
accused- appellants Tulin, Loyola, and Infante, Jr. and others,
were the ones assigned to attack and seize the "M/T Tabangao"
off Lubang, Mindoro, while accused-appellant Cecilio
Changco was to fetch the master and the members of the crew
from the shoreline of Calatagan, Batangas after the transfer,
and bring them to Imus, Cavite, and to provide the crew and
the officers of the vessel with money for their fare and food
provisions on their way home. These acts had to be well-
coordinated. Accused-appellant Cecilio Changco need not be
present at the time of the attack and seizure of "M/T Tabangao"
since he performed his task in view of an objective common to
all other accused- appellants.
Of notable importance is the connection of accused-
appellants to one another. Accused-appellant Cecilio Changco
is the younger brother of Emilio Changco (aka Captain
Bobby/Captain Roberto Castillo/Kevin Ocampo), owner of
Phil-Asia Shipping Lines. Cecilio worked for his brother in
said corporation. Their residences are approximately six or
seven kilometers away from each other. Their families are
close. Accused-appellant Tulin, on the other hand, has known
Cecilio since their parents were neighbors in Aplaya, Balibago,
Calatagan, Batangas. Accused-appellant Loyola's wife is a
relative of the Changco brothers by affinity .Besides, Loyola
and Emilio Changco had both been accused in a seajacking
case regarding "M/T Isla Luzon" and its cargo of steel coils
and plates off Cebu and Bohol in 1989. Emilio Changco (aka
Kevin Ocampo) was convicted of the crime while Loyola at
that time remained at large.
As for accused-appellant Hiong, he ratiocinates that he can
no longer be convicted of piracy in Philippine waters as
defined and penalized in Sections 2[d] and 3[a], respectively of
Presidential Decree No. 532 because Republic Act No. 7659
(effective January 1, 1994) which amended Article 122 of the
Revised Penal Code, has impliedly superseded Presidential
Decree No. 532. He reasons out that Presidential Decree No.
532 has been rendered "superfluous or duplicitous" because
both Article 122 of the Revised Penal Code, as amended, and
Presidential Decree No. 532 punish piracy committed in
Philippine waters. He maintains that in order to reconcile the
two laws, the word "any person" mentioned in Section 1 [d] of
Presidential Decree No. 532 must be omitted such that
Presidential Decree No. 532 shall only apply to offenders who
are members of the complement or to passengers of the vessel,
whereas Republic Act No. 7659 shall apply to offenders who
are neither members of the complement or passengers of the
vessel, hence, excluding him from the coverage of the law.
Article 122 of the Revised Penal Code, used to provide:
Article 122. Piracy in general and mutiny on the high
seas. -The penalty of reclusion temporal shall be
inflicted upon any person who, on the high seas, shall
attack or seize a vessel or, not being a member of its
complement nor a passenger, shall seize the whole or
part of the cargo of said vessel, its equipment, or
personal belongings of its complement or passengers.
(
Underscoring supplied.)
Article 122, as amended by Republic Act No. 7659
January 1, 1994), reads:
Article 122. Piracy in general and mutiny on the high
seas or in Philippine waters. -The penalty of reclusion
perpetua shall be inflicted upon any person who, on the
high seas, or in Philippine waters, shall attack or seize a
vessel or, being a member of its complement nor a
passenger, shall seize the whole or part of the cargo of
said vessel, its equipment, or personal belongings of its
complement or passengers.
(Un
derscoring ours)
On the other hand, Section 2 of Presidential Decree No.
532 provides:
SEC. 2. Definition of Terms. - The following shall mean
and be understood, as follows:
d. Piracy. -Any attack upon or seizure of any vessel, or
the taking away of the whole or part thereof or its cargo,
equipment, or the personal belongings of its
complement or passengers, irrespective of the value
thereof, by means of violence against or intimidation of
persons or force upon things, committed by any person.
including a passenger or member of the complement of
said vessel in Philippine waters, shall be considered as
piracy. The offenders shall be considered as pirates and
punished as hereinafter provided (underscoring
supplied).
To summarize, Article 122 of the Revised Penal Code,
before its amendment, provided that piracy must be committed
on the high seas by any person not a member of its complement
nor a passenger thereof. Upon its amendment by Republic Act
No. 7659, the coverage of the pertinent provision was widened
to include offenses committed "in Philippine waters." On the
other hand, under Presidential Decree No. 532 (issued in 1974),
the coverage of the law on piracy embraces any
person including "a passenger or member of the complement
of said vessel in Philippine waters." Hence, passenger or not, a
member of the complement or not, any person is covered by
the law.
Republic Act No. 7659 neither superseded nor amended
the provisions on piracy under Presidential Decree No. 532.
There is no contradiction between the two laws. There is
likewise no ambiguity and hence, there is no need to construe
or interpret the law. All the presidential decree did was to
widen the coverage of the law, in keeping with the intent to
protect the citizenry as well as neighboring states from crimes
against the law of nations. As expressed in one of the
"whereas" clauses of Presidential Decree No. 532, piracy is
"among the highest forms of lawlessness condemned by the
penal statutes of all countries." For this reason, piracy under
the Article 122, as amended, and piracy under Presidential
Decree No. 532 exist harmoniously as separate laws.
As regards the contention that the trial court did not
acquire jurisdiction over the person of accused-appellant Hiong
since the crime was committed outside Philippine waters,
suffice it to state that unquestionably, the attack on and seizure
of "M/T Tabangao" (renamed "M/T Galilee" by the pirates)
and its cargo were committed in Philippine waters, although
the captive vessel was later brought by the pirates to Singapore
where its cargo was off-loaded, transferred, and sold. And such
transfer was done under accused-appellant Hiong's direct
supervision. Although Presidential Decree No. 532 requires
that the attack and seizure of the vessel and its cargo be
committed in Philippine waters, the disposition by the pirates
of the vessel and its cargo is still deemed part of the act of
piracy, hence, the same need not be committed in Philippine
waters.
Moreover, piracy falls under Title One of Book Two of the
Revised Penal Code. As such, it is an exception to the rule on
territoriality in criminal law. The same principle applies even if
Hiong, in the instant case, were charged, not with a violation of
qualified piracy under the penal code but under a special law,
Presidential Decree No. 532 which penalizes piracy in
Philippine waters. Verily, Presidential Decree No. 532 should
be applied with more force here since its purpose is precisely to
discourage and prevent piracy in Philippine waters (People v.
Catantan, 278 SCRA 761 [1997]). It is likewise, well-settled
that regardless of the law penalizing the same, piracy is a
reprehensible crime against the whole world (People v. Lol-lo,
43 Phil. 19 [1922]).
However, does this constitute a violation of accused-
appellant's constitutional right to be informed of the nature and
cause of the accusation against him on the ground that he was
convicted as an accomplice under Section 4 of Presidential
Decree No. 532 even though he was charged as a principal by
direct participation under Section 2 of said law?
 The trial court found that there was insufficiency of
evidence showing:
(a) that accused-appellant Hiong directly participated in
the attack and seizure of "M/T Tabangao" and its cargo; (b)
that he induced Emilio Changco and his group in the attack and
seizure of "M/T Tabangao" and its cargo; ( c) and that his act
was indispensable in the attack on and seizure of "M/T
Tabangao" and its cargo. Nevertheless, the trial court found
that accused-appellant Hiong's participation was indisputably
one which aided or abetted Emilio Changco and his band of
pirates in the disposition of the stolen cargo under Section 4 of
Presidential Decree No. 532 which provides:
SEC. 4. Aiding pirates or highway robbers/brigands or
abetting piracy or highway robbery brigandage. -Any
person who knowingly and in any manner aids or
protects pirates or highway robbers/brigands, such as
giving them information about the movement of police
or other peace officers of the government, or acquires or
receives property taken by such pirates or brigands or in
any manner derives any benefit therefrom; or any
person who directly or indirectly abets the commission
of piracy or highway robbery or brigandage, shall be
considered as an accomplice of the principal officers
and be punished in accordance with Rules prescribed by
the Revised Penal Code.
It shall be presumed that any person who does any of
the acts provided in this Section has performed them
knowingly, unless the contrary is proven.
The ruling of the trial court is Within well-settle
jurisprudence that if there is lack of complete evidence of
conspiracy, the liability is that of an accomplice and not as
principal (People v. Tolentino, 40 SCRA 514 [1971]). Any
doubt as to the participation of an individual in the commission
of the crime is always resolved in favor of lesser responsibility
(People v. Corbes, 270 SCRA 465 [1997]; People vs. Elfano,
Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498
[1971]).
Emphasis must also be placed on the last paragraph of
Section 4 of Presidential Decree No 532 which presumes that
any person who does any of the acts provided in said section
has performed them knowingly, unless the contrary is proven.
In the case at bar, accused-appellant Hiong had failed to
overcome the legal presumption that he knowingly abetted or
aided in the commission of piracy, received property taken by
such pirates and derived benefit therefrom.
The record discloses that accused-appellant Hiong aided
the pirates in disposing of the stolen cargo by personally
directing its transfer from "M/T Galilee" to "M/T Navi
Pride". He profited therefrom by buying the hijacked cargo for
Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-
23). He even tested the quality and verified the quantity of the
petroleum products, connived with Navi Marine Services
personnel in falsifying the General Declarations and Crew List
to ensure that the illegal transfer went through, undetected by
Singapore Port Authorities, and supplied the pirates with food,
beer, and other provisions for their maintenance while in port
(tsn, June 3, 1992, pp. 133-134).
We believe that the falsification of the General Declaration
(Arrival and Departure) and Crew List was accomplished and
utilized by accused-appellant Hiong and Navi Marine Services
personnel in the execution of their scheme to avert detection by CSH", Record), it was made to falsely appear that the "Navi
Singapore Port Authorities. Hence, had accused-appellant Pride" unloaded 1,700 tons of cargo on the high seas during
Hiong not falsified said entries, the Singapore Port Authorities said voyage when in fact it acquired from the "M/T Galilee"
could have easily discovered the illegal activities that took 2,000 metric tons of diesel oil. The second transfer transpired
place and this would have resulted in his arrest and prosecution with the same irregularities as discussed above. It was likewise
in Singapore. Moreover, the transfer of the stolen cargo from supervised by accused- appellant Cheong from his end while
"M/T Galilee" to "Navi Pride" could not have been effected. Emilio Changco supervised the transfer from his end.
We completely uphold the factual findings of the trial Accused-appellant Hiong maintains that he was merely
court showing in detail accused-appellant Hiong's role in the following the orders of his superiors and that he has no
disposition of the pirated goods summarized as follows: that on knowledge of the illegality of the source of the cargo.
March 27, 1991, Hiong with Captain Biddy Santos boarded the
First and foremost, accused-appellant Hiong cannot deny
"Navi Pride," one of the vessels of the Navi Marine, to
knowledge of the source and nature of the cargo since he
rendezvous with the "M/T Galilee"; that the firm submitted the
himself received the same from "M/T Tabangao". Second,
crew list of the vessel (Exhibit "8-CSH", Record) to the port
considering that he is a highly educated mariner, he should
authorities, excluding the name of Hiong; that the "General
have avoided any participation in the cargo transfer given the
Declaration" (for departure) of the "Navi Pride" for its voyage
very suspicious circumstances under which it was acquired. He
off port of Singapore (Exhibits "HH" and "8-A CSH", Record)
failed to show a single piece of deed or bill of sale or even a
falsely stated that the vessel was scheduled to depart at 2200
purchase order or any contract of sale for the purchase by the
(10 o'clock in the evening), that there were no passengers on
firm; he never bothered to ask for and scrutinize the papers and
board, and the purpose of the voyage was for "cargo operation"
documentation relative to the "M/T Galilee"; he did not even
and that the vessel was to unload and transfer 1,900 tons of
verify the identity of Captain Robert Castillo whom he met for
cargo; that after the transfer of the fuel from "M/T Galilee"
the first time nor did he check the source of the cargo; he knew
with' Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto
that the transfer took place 66 nautical miles off Singapore in
Castillo at the helm, the surveyor prepared the "Quantity
the dead of the night which a marine vessel of his firm did not
Certificate" (Exhibit "11-C CSH, Record) stating that the cargo
ordinarily do; it was also the first time Navi Marine transacted
transferred to the "Navi Pride" was 2,406 gross cubic meters;
with Paul Gan involving a large sum of money without any
that although Hiong was not the Master of the vessel, he
receipt issued therefor; he was not even aware if Paul Gan was
affixed his signature on the "Certificate" above the word
a Singaporean national and thus safe to deal with. It should also
"Master" (Exhibit "11-C-2 CSH", Record); that he then paid
be noted that the value of the cargo was P40,426,793.87 or
$150,000.00 but did not require any receipt for the amount; that
roughly more than US$l,000,000.00 (computed at P30.00 to
Emilio Changco also did not issue one; and that in the requisite
$1, the exchange rate at that time). Manifestly, the cargo was
"General Declaration" upon its arrival at Singapore on March
sold for less than one-half of its value. Accused-appellant
29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A
Hiong should have been aware of this irregularity. Nobody in Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-
his right mind would go to far away Singapore, spend much Gutierrez, JJ., concur.
time and money for transportation -only to sell at the
aforestated price if it were legitimate sale involved. This, in
addition to the act of falsifying records, clearly shows that
accused-appellant Hiong was well aware that the cargo that his
firm was acquiring was purloined.
Lastly, it cannot be correctly said that accused-appellant
was "merely following the orders of his superiors." An
individual is justified in performing an act in obedience to an
order issued by a superior if such order, is for some lawful
purpose and that the means used by the subordinate to carry out
said order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981
ed., p. 212). Notably, the alleged order of Hiong's superior
Chua Kim Leng Timothy, is a patent violation not only of
Philippine, but of international law. Such violation was
committed on board a Philippine-operated vessel. Moreover,
the means used by Hiong in carrying out said order was equally
unlawful. He misled port and immigration authorities, falsified
records, using a mere clerk, Frankie Loh, to consummate said
acts. During the trial, Hiong presented himself, and the trial
court was convinced, that he was an intelligent and articulate
Port Captain. These circumstances show that he must have
realized the nature and the implications of the order of Chua
Kim Leng Timothy. Thereafter, he could have refused to
follow orders to conclude the deal and to effect the transfer of
the cargo to the Navi Pride. He did not do so, for which reason,
he must now suffer the consequences of his actions.
WHEREFORE, finding the conviction of accused-
appellants justified by the evidence on record, the Court hereby
AFFIRMS the judgment of the trial court in toto.
SO ORDERED.

EN BANC
January 12, 2016
G.R. No. 174471
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JERRY PEPINO y RUERAS and PRECIOSA GOMEZ y
CAMPOS, Accused-Appellants.
DECISION
BRION, J.:
This is an appeal filed by Jerry Pepino (Pepino) and Preciosa
Gomez (Gomez) assailing the June 16, 2006 decision1 of the
Court of Appeals (CA) in CA-G.R. CR-HC No. 02026.
ANTECEDENTS
The prosecution evidence showed that at 1:00 p.m., on June 28,
1997, two men and a woman entered the office of Edward Tan at
Kilton Motors Corporation in Sucat, Parafiaque City, and
pretended to be customers. When Edward was about to receive
them, one of the men, eventually identified as Pepino pulled out a
gun. Thinking that it was a holdup, Edward told Pepino that the
money was inside the cashier's box. Pepino and the other man
looted the "'cashier's box, handcuffed Edward, and forced him to
go with them.2 From the hallway, Jocelyn Tan (mentioned as
"Joselyn" in some parts of the record), Edward's wife, saw Pepino
take her husband. She went to the adjoining room upon Edward's
instructions.3
Pepino brought Edward to a metallic green Toyota Corolla where
three other men were waiting inside. The woman (later identified
as Gomez) sat on the front passenger seat.4 The abductors then
placed surgical tape over Edward's eyes and made him wear
sunglasses. After travelling for two and a half hours, they arrived
at an apartment in Quezon City. The abductors removed the tape
from Edward's eyes, placed him in a room, and then chained his
legs. Pepino approached Edward and asked for the phone
number of his father so that he could ask for ransom for his
(Edward's) liberty. Edward told Pepino to negotiate with his wife,
but the latter insisted on talking to his father.5
At around 5:00 p.m. of the same day, the kidnappers called
Edward's father and demanded a P40 million ransom for his
release. Edward's father told the kidnappers that he did not have
that amount. The abductors negotiated with Jocelyn who
eventually agreed to a P700,000.00 ransom. The kidnappers told
Jocelyn to pack the money into two packages and to drop these
at a convenience store in front of McDonald's at Mindanao
Avenue. They further demanded that Edward's vehicle be used to
bring the money.6
After four days, or on July 1, 1997, Antonio Gepiga (the family
driver) brought the agreed amount to the 7-Eleven convenience
store at Mindanao A venue as instructed.7 That evening, three
men and Gomez blindfolded Edward, made him board a car, and
drove around for 30 minutes. Upon stopping, they told Edward
that he could remove his blindfold after five minutes. When
Edward removed his blindfold, he found himself inside his own
car parked at the UP Diliman Campus. He drove home and
reported his kidnapping to Teresita Ang See, a known anti-crime
crusader.8
After five months, the National Bureau of
Investigation (NBI!) informed Edward that they had apprehended
some suspects, and invited him to identify them from a lineup
consisting of seven persons: five males and two females. Edward
positively identified Pepino, Gomez, and one Mario
Galgo.9 Jocelyn likewise identified Pepino.10
Pepino and Gomez did not testify for their defense. The defense
instead presented Zeny Pepino, Reynaldo Pepino, NBI Special
Investigator Marcelo Jadloc and P/Sr. Insp. Narciso Quano
(mentioned as "Qano" in some parts of the record).
Zeny testified that she and her husband, Jerry Pepino, were
inside their house in Cebu City on December 7, 1997, when
about 20 heavily armed men entered their house looking for
Jerry. When Jerry asked them if they had a warrant of arrest, one
of the men pointed a gun at him and handcuffed him; the armed
men then hit him with the butt of an armalite and punched him.
The men also took Pepino' s wristwatch and wallet, as well as
Zeny's bag and watch. Some of the armed men searched the
second floor of the house, and found a .45 caliber gun. The
armed men brought Zeny and Pepino outside their house where
Zeny saw Renato Pepino and Larex Pepino already handcuffed.
The armed men brought them to the Cebu City Police
Headquarters before bringing them to the NBI Headquarters in
Manila. The following day, Jerry, Renato, and Larex were brought
to the Department of Justice (DO.I). Zeny, on the other hand, was
released after being detained at the NBI for three (3) days.11
Reynaldo's testimony was summarized by the CA as follows:
x x x On December 6, 1997, he accompanied accused-appellant
Gomez to his brother's sister-in-law who happens to work in a
recruitment agency. While they were inside the latter's house at
Lot 2, Block 15, Marikina Heights, Marikina City, they heard a
noise at the gate. When he peeped through the window, he saw
two (2) motorcycles and two (2) Vannette vans. Shortly thereafter,
someone kicked the back door and several armed men emerged
therefrom and announced their arrest. When he asked them if
they had any warrant, they replied: "Walang warrant, warrant.
Walang search, search." They were then hogtied and made to lie
face down. Five (5) of them then went upstairs and seized his
personal belongings together with his briefcase which contained
P45,000.00, documents of accused-appellant Gomez, and his .45
caliber pistol as well as his license and permit to carry the same.
No receipts were issued for their personal effects which were
confiscated. They were subsequently brought to Camp Crame
and subjected to torture. The following day, they were brought to
the Department of Justice and a case for kidnapping was filed
against him. Upon reinvestigation, however, he was discharged
from the Information and the court dismissed the case against
him.12
SI Jadloc and Police Senior Inspector Quano, Jr. were presented
as hostile witnesses.
Jadloc declared on the witness stand that NBI Assistant Director
Edmundo Arugay dispatched a team to Cebu City to investigate a
kidnap-for-ransom case. The team immediately conducted
surveillance operations when they arrived at Calle Rojo, Lahug,
Cebu City. One of the team members saw Renato and Larex
Pepino with guns tucked in their waists. When the team
approached them, the two men ran inside their house. The team
went after them and on entering the house, they saw Jerry in
possession of a .45 caliber gun. The team arrested Jerry, Renato
and Larex, and then brought them to the NBI Headquarters in
Manila.13
Quano testified that he was designated as the leader of a team
tasked to arrest members of a kidnap-for-ransom group at their
safe house in Lot 2, Block 50, Marikina Heights, Marikina City.
When they arrived there, they introduced themselves as police
officers. The police forcibly opened the door after the occupants
of the house refused to open the ground floor door. During their
search at the second floor, the operatives found an armalite and a
.45 caliber gun. The members of the team handcuffed Gomez
and Reynaldo, and then brought them to Camp Crame.14
The prosecution charged Preciosa Gomez, Jerry Pepino,
Reynaldo Pepino, Jessie Pepino, George Curvera, Boy Lanyujan,
Luisito "Tata" Adulfo, Henriso Batijon (a.k.a. Dodoy Batijon),
Nerio Alameda, and an alias Wilan Tan with kidnapping for
ransom and serious illegal detention before the Regional Trial
Court (RTC), Branch 259, Paranaque City.15 Reynaldo was
subsequently discharged after reinvestigation. Only Pepino,
Gomez, and Batijon were arraigned; their other co-accused
remained at large.
In its May 15, 2000 decision, the RTC convicted Pepino and
Gomez of kidnapping and serious illegal detention under Article
267 of the Revised Penal Code (as amended) and sentenced
them to suffer the death penalty. The RTC also ordered them to
pay Edward P700,000.00 representing the amount extorted from
him; P50,000.00 as moral damages; and P50,000 as exemplary
damages. The trial court acquitted Batijon for insufficiency of
evidence.
The R TC held that Edward positively identified Pepino and
Gomez as two of the persons who forcibly abducted him at
gunpoint inside Kilton Motors, and who consequently detained
him somewhere in Quezon City for four (4) days until he was
released inside the UP Diliman Campus after the payment of
ransom. The RTC added that Jocelyn corroborated Edward's
testimony on material points. It also pointed out that Edward
identified both Pepino and Gomez at the lineup conducted inside
the NBI compound, although Jocelyn only recognized Gomez.
The R TC further ruled that the accused were already estopped
from questioning the validity of their arrest after they entered their
respective pleas.
The case was automatically elevated to this Court in view of the
death penalty that the R TC imposed. We referred the case to the
CA for intermediate review pursuant to our ruling in People v.
Mateo.16
In its decision dated June 16, 2006, the Court of Appeals affirmed
the RTC decision with the modification that the amounts of moral
and exemplary damages were increased from P300,000.00 and
Pl00,000.00, respectively.
The CA held that Pepino and Gomez were deemed to have
waived any objection to the illegality of their arrests when they did
not move to quash the information before entering their plea, and
when they participated at the trial.
The CA further ruled that Pepino and Gomez conspired with each
other to attain a common objective, i.e., to kidnap Edward in
exchange for ransom.
While the case was under review by the Supreme Court, Pepino
filed an urgent motion to withdraw his appeal, which the Court
granted.17 Only Gomez's appeal is now pending before us.
In her brief18 and supplemental brief,19 Gomez maintained that it
was impossible for Edward to have seen her in the front seat of
the getaway car because he (Edward) was blindfolded. She also
alleged that the prosecution failed to prove that she had
conspired with the other accused.
Gomez further claimed that Edward's identification of her during
trial "may have been preconditioned x x x by suggestive
identification"20 made at the police lineup. She further argued that
the death penalty imposed on her is no longer proper due to the
enactment of Republic Act No. 9346.
THE COURT'S ·RULING
We affirm Gomez's conviction, but we modify the penalty
imposed and the awarded indemnities.
Illegality of the Arrest
We point out at the outset that Gomez did not question before
arraignment the legality of her warrantless arrest or the
acquisition of RTC's jurisdiction over her person. Thus, Gomez is
deemed to have waived any objection to her warrantless arrest.
It is settled that [a]ny objection to the procedure followed in the
matter of the acquisition by a court of jurisdiction over the person
of the accused must be opportunely raised before he enters his
plea; otherwise, the objection is deemed waived.21 As we held
in People v. Samson:22
[A ]ppellant is now estopped from questioning any defect in the
manner of his arrest as he failed to move for the quashing of the
information before the trial court. Consequently, any irregularity
attendant to his arrest was cured when he voluntarily submitted
himself to the jurisdiction of the trial court by entering a plea of
"not guilty" and by participating in the trial.23
At any rate, the illegal arrest of an accused is not sufficient cause
for setting aside a valid judgment rendered upon a sufficient
complaint after a trial free from error. Simply put, the illegality of
the warrantless arrest cannot deprive the State of its right to
prosecute the guilty when all other facts on record point to their
culpability. It is much too late in the day to complain about the
warrantless arrest after a valid information had been filed, the
accused had been arraigned, the trial had commenced and had
been completed, and a judgment of conviction had been rendered
against her.24
Sufficiency of the Prosecution Evidence
a. Elements of kidnapping proved
The elements of kidnapping and serious illegal detention under
Article 267 of the Revised Penal Code, as amended, are: (1) the
offender is a private individual; (2) he kidnaps or detains another
or in any other manner deprives the latter of his liberty; (3) the act
of detention or kidnapping must be illegal; and (4) in the
commission of the offense, any of the following circumstances is
present: (a) the kidnapping or detention lasts for more than three
(3) days; or (b) it is committed by simulating public authority; or
(c) serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made; or (d) the
person kidnapped or detained is a minor, female, or a public
officer. If the victim of kidnapping and serious illegal detention is a
minor, the duration of his detention is immaterial. Likewise, if the
victim is kidnapped and illegally detained for the purpose of
extorting ransom, the duration of his detention is also of no
moment and the crime is qualified and becomes punishable by
death even if none of the circumstances mentioned in paragraphs
1 to 4 of Article 267 is present.25
All these elements have been established by the prosecution.
Edward positively identified Gomez and Pepino - both private
individuals - as among the three persons who entered his office
and pretended to be Kilton Motors'customers. He further declared
that Pepino pointed a gun at him, and forcibly took him against
his will. To directly quote from the records:
ATTY. WILLIAM CHUA:
Q: Can you tell us if anything unusual happened to you on June
28, 1997?
EDWARD TAN:
A: I was kidnapped.
xxxx
Q: Can you tell this Court how the kidnapping was initiated?
A: At around 1:00 o'clock in the afternoon, there were three
persons who entered the office of Kilton Motors and pretended to
be customers.
Q: What was the gender of these three persons that you are
referring to?
A: Two men and a woman.
Q: After they pretended to be customers, tell us what happened?
A: · They told me they were going to pay but instead of pulling out
money, they pulled out a gun.
Q: How many people pulled out guns as you said?
A: Only one, sir.
Q: Will you look around this courtroom now and tell us if the
person who pulled out a gun is in court?
A: (WITNESS POINTED TO A PERSON AT THE RIGHT
SECTION, SECOND ROW WHO, WHEN ASKED HIS NAME,
ANSWERED JERRY PEPINO)
Q: Now, you said that there were two men and a woman who
went up the Kilton Motors Office and you pointed to one of the
men as Jerry Pepino, can you look around the courtroom and tell
us if any of the two others are in court?
A: (WITNESS POINTED TO A WOMAN INSIDE THE
COURTROOM WHO, WHEN ASKED HER NAME, ANSWERED
AS PRECIOSA GOMEZ)
xxxx
Q: You said Mr. Pepino pulled out his gun, what happened after
he pulled out his gun?
A: He told me just to be quiet and go with him.
Q: What was your reaction when he pointed a gun to you and he
stated those words?
A: I thought it was only a holdup and so I told him there was
money with the cashier and told him to get it.
Q: What happened after you told him the money was in the
cashier's box?
A: His companion took the money and told me to still go with
them.
Q: When they told you to go with them, what happened next? A: I
told them why should I still go with them and then, I was
handcuffed and was forced to go down.
xxxx
Q: As they were bringing you down, what happened next, Mr.
Witness?
A: When we went down nearing his car, I was boarded on [in] his
car.
xxxx
Q: When they boarded you inside that car, what did they do to
you, Mr. Witness?
A: They put surgical tape on my eyes and also sunglasses.
xxxx
Q: Who was at the passenger's front seat of the car?
A: It was Preciosa Gomez.26
xxxx
Edward further declared on the witness stand that Pepino,
Gomez, and their other co-accused brought him to a safe house
in Quezon City; detained him there for four (4) days;
and demanded ransom from his (Edward's) family.
It is settled that the crime of serious illegal detention consists not
only of placing a person in an enclosure, but also in detaining him
or depriving him of his liberty in any manner. For there to be
kidnapping, it is enough that the victim is restrained from going
home. Its essence is the actual deprivation of the victim's liberty,
coupled with indubitable proof of the intent of the accused to
effect such deprivation.27
Notably, Jocelyn corroborated Edward's testimony on the
following points: Pepino poked a handgun at Edward while they
were on the second floor of Kilton; Pepino and his companion
brought him downstairs and out of the building, and made him
board a car; and the kidnappers demanded ransom in exchange
for Edward's release.
Both the RTC and the CA found the respective testimonies of
Edward and Jocelyn credible and convincing. We affirm the
credibility accorded by the trial court (and affirmed by the CA) to
these prosecution witnesses, in the absence of any showing that
this factual finding had been arbitrarily arrived at. There is nothing
in the records that would put the testimonies of Edward and
Jocelyn under suspicion. We recall that Edward had close
contacts with Pepino at Kilton Motors and at the safe house. He
also saw Gomez (a) seated at the front seat of the getaway
Toyota Corolla vehicle; (b) at the safe house in Quezon City; and
(c) inside the car before the kidnappers released him.
Jocelyn, for her part, stated that she was very near Pepino while
he was taking away her husband.
In People v. Pavillare,28 the Court found the testimonies of the
private complainant Sukhjinder Singh and his cousin, Lakhvir
Singh, to be credible and convincing, and reasoned out as
follows:
Both witnesses had ample opportunity to observe the kidnappers
and to remember their faces. The complainant had close contact
with the kidnappers when he was abducted and beaten up, and
later when the kidnappers haggled on the amount of the ransom
money. His cousin met Pavillare face to face and actually dealt
with him when he paid the ransom money. The two-hour period
that the complainant was in close contact with his abductors was
sufficient for him to have a recollection of their physical
appearance. Complainant admitted in court that he would
recognize his abductors if he sees them again and upon seeing
Pavillare he immediately recognized him as one of the
malefactors as he remembers him as the one who blocked his
way, beat him up, haggled with the complainant's cousin and
received the ransom money. x x x It bears repeating that the
finding of the trial court as to the credibility of witnesses is given
utmost respect and as a rule will not be disturbed on appeal
because it had the opportunity to closely observe the demeanor
of the witness in court.29
b. Admissibility of Identification
We find no merit in Gomez's claim that Edward's identification of
her during trial might have been preconditioned by the
"suggestive identification" made during the police lineup.
In People v. Teehankee, Jr.,30 the Court explained the procedure
for out-of-court identification and the test to determine the
admissibility of such identifications in this manner:
Out-of-court identification is conducted by the police in various
ways. It is done thru show-ups where the suspect alone is
brought face to face with the witness for identification. It is done
thru mug shots where photographs are shown to the witness to
identify the suspect. It is also done thru lineups where a witness
identifies the suspect from a group of persons lined up for the
purpose x x x In resolving the admissibility of and relying on out-
of-court identification of suspects, courts have adopted
the totality of circumstances test where they consider the
following factors, viz: (1) the witness' opportunity to view the
criminal at the time of the crime; (2) the witness' degree of
attention at that time; (3) the accuracy of any prior description
given by the witness; (4) the level of certainty demonstrated by
the witness at the identification; (5) the length of time between the
crime and the identification; and (6) the suggestiveness of the
identification procedure.31
Applying the totality-of-circumstances test, we find Edward's out-
of-court identification to be reliable and thus admissible. To recall,
when the three individuals entered Edward's office, they initially
pretended to be customers,32and even asked about the products
that were for sale.33 The three had told Edward that they were
going to pay, but Pepino "pulled out a gun" instead.34 After Pepino'
s companion had taken the money from the cashier's box, the
malefactors handcuffed Edward and forced him to go down to the
parked car. From this sequence of events, there was thus ample
opportunity for Edward - before and after the gun had been
pointed at him - to view the faces of the three persons who
entered his office. In addition, Edward stated that Pepino had
talked to him "[a]t least once a day"35 during the four days that he
was detained.
Edward also saw Gomez seated at the front seat of the getaway
metallic green Toyota Corolla vehicle. In addition, the abductors
removed the tape from Edward's eyes when they arrived at the
apartment, and among those whom he saw there was Gomez.
According to Edward, he was able to take a good look at the
occupants of the car when he was about to be released.
On the part of Jocelyn, she was firm and unyielding in her
identification of Pepino as the person who pointed a gun at her
husband while going down the stairs, and who brought him
outside the premises of Kilton Motors. She maintained that she
was very near when Pepino was taking away her husband; and
that she could not forget Pepino's face. For accuracy, we quote
from the records:
ATTY. CORONEL:
Q: You stated that you were able to see one of the persons who
kidnapped your husband, if you see this person again, would you
be able to identify him?
JOCELYN SY TAN:
A: Yes, sir.
Q: Can you look around the courtroom and see if the person you
are referring to is here today?
A: Yes, sir.
Q: Can you point to him?
A: (WITNESS POINTED TO A MALE PERSON INSIDE THE
COURTROOM WHO WHEN ASKED HIS NAME ANSWERED
AS JERRY PEPINO).
Q: Ms. Witness, what role did this person whom you identified
and gave his name as Jerry Pepino, what role did he play in the
kidnapping of your husband?
A: Siya po bale 'yang nakayakap sa husband ko tapos nakatutok
ng baril.
xxxx
A TTY. ESTRUCO:
Q: When Jerry Pepino was at Kilton Motors, he embraced your
husband?
JOCELYN SY TAN:
A: Yes, sir. And pointed a gun at my husband.
Q: And he was not blindfolded at that time?
A: No, he was not blindfolded, he was only wearing a cap.
Q: You are very sure that he is Jerry Pepino?
A: Yes, I am very, very sure. I could not forget his face.
Q: You are very sure?
A: Yes, sir. Kahit sa nightmare ko, kasama siya.
xx x x36
We add that no competing event took place to draw Edward's and
Jocelyn's attention from the incident. Nothing in the records
shows the presence of any distraction that could have disrupted
the witnesses' attention at the time of the incident.37
Jurisprudence holds that the natural reaction of victims of criminal
violence is to strive to see the appearance of their assailants and
observe the manner the crime was committed. As the Court held
in People v. Esoy:38
It is known that the most natural reaction of a witness to a crime
is to strive to look at the appearance of the perpetrator and to
observe the manner in which the offense is perpetrated. Most
often the face of the assailant and body movements thereof,
create a lasting impression which cannot be easily erased from a
witness's memory. Experience dictates that precisely because of
the unusual acts of violence committed right before their eyes,
eyewitnesses can remember with a high degree of reliability the
identity of criminals at any given time.39
While this pronouncement should be applied with great caution,
there is no compelling circumstance in this case that would
warrant its non-application.
Contrary to what Gomez claimed, the police lineup conducted at
the NBI was not suggestive. We note that there were seven
people in the lineup; Edward was not compelled to focus his
attention on any specific person or persons. While it might have
been ideal if there had been more women included in the lineup
instead of only two, or if there had been a separate lineup for
Pepino and for Gomez, the fact alone that there were five males
and two females in the lineup did not render the procedure
irregular. There was no evidence that the police had supplied or
even suggested to Edward that the appellants were the
suspected perpetrators.
The following exchanges at the trial during Edward's cross-
examination prove this point:
ATTY. ESTURCO:
Q: When they were lined up at the NBI, where were they placed,
in a certain room?
EDWARD TAN: identified Pepino, the circumstances surrounding this out-of-court
identification showed that the whole identification process at the
A: Yes, sir. NBI was not suggestive. To directly quote from the records:

Q: With a glass window? One way? ATTY. ESTURCO:

A: No, sir. Q: How about the alleged kidnappers, where were they placed
during that time?
Q: You mean to say you were face to face with the alleged
kidnappers? JOCELYN TAN:

A: Yes, sir. A: They were in front of us.

Q: And before you were asked to pinpoint the persons who Q: Without any cover?
allegedly kidnapped you, you conferred with the NBI agents?
A: None, sir.
A: The NBI agents told me not to be afraid.
Q: Without any glass cover?
Q: No, my question is, you conferred with the NBI agents?
A: See-through glass window.
A: Yes, sir.
Q: One-way mirror?
Q: What is the name of the NBI agent?
A: Not one way, see-through.
A: I cannot remember, sir.
Q: And before you were asked to pinpoint the alleged
Q: And how many were lined up? kidnappers, you were already instructed by the NBI what to
do and was told who are the persons to be lined up?
A: Seven, sir.
A: No, sir.
Q: And the NBI agent gave the names of each of the seven?
xxxx
A: No, sir.
40

Q: And between the alleged length of time, you were still very
We also note that Jocelyn's and Edward's out-of-court positive that it was Gerry (sic) Pepino inside the NBI cell?
identifications were made on the same day. While Jocelyn only
A: At first, I did not know that he was Jerry Pepino but we
know his face.
Q: At first, you did not know that it was Jerry Pepino?
A: Yes, sir.
xxxx
Q: It was the NBI officer who told you that the person is Jerry
Pepino, am I correct?
A: They identified that the person we identified was Jerry
Pepino. We first pinpointed na heto ang mukha at saka
sinabi na 'yan si Jerry Pepino.
xx x x41
These exchanges show that the lineup had not been attended by
any suggestiveness on the part of the police or the NBI agents;
there was no evidence that they had supplied or even suggested
to either Edward or Jocelyn that the appellants were the
kidnappers.
We are not unaware that the Court, in several instances, has
acquitted an accused when the out-of-court identification is fatally
flawed. In these cases, however, it had been clearly shown that
the identification procedure was suggestive.
In People v. Pineda,42 the Court acquitted Rolando Pineda
because the police suggested the identity of the accused by
showing only the photographs of Pineda and his co-accused
Celso Sison to witnesses Canilo Ferrer and Jimmy Ramos.
According to the Court, "there was impermissible suggestion
because the photographs were only of appellant and Sison,
focusing attention on the two accused."43
Similarly, the Court in People v. Rodrigo44 acquitted appellant Lee
Rodrigo since only a lone photograph was shown to the witness
at the police station. We thus held that the appellant's in-court
identification proceeded from, and was influenced by,
impermissible suggestions in the earlier photographic
identification.
The lack of a prior description of the kidnappers in the present
case should not lead to a conclusion that witnesses' identification
was erroneous. The lack of a prior description of the kidnappers
was due to the fact that Jocelyn (together with other members of
Edward's family), for reasons not made known in the records,
opted to negotiate with the kidnappers, instead of immediately
seeking police assistance. If members of Edward's family had
refused to cooperate with the police, their refusal could have
been due to their desire not to compromise Edward's safety.45 In
the same manner, Edward, after he was freed, chose to report
the matter to Teresita Ang See, and not to the police.
Given these circumstances, the lack of prior description of the
malefactors in this case should not in any way taint the
identification that Edward and Jocelyn made.
c. The Right to Counsel
The right to counsel is a fundamental right and is intended to
preclude the slightest coercion that would lead the accused to
admit something false. The right to counsel attaches upon the
start of the investigation, i.e., when the investigating officer starts
to ask questions to elicit information and/or confessions or
admissions from the accused.46
Custodial investigation commences when a person is taken into
custody and is singled out as a suspect in the commission of the
crime under investigation.47 As a rule, a police lineup is not part of
the custodial investigation; hence, the right to counsel guaranteed
by the Constitution cannot yet be invoked at this stage. The right
to be assisted by counsel attaches only during custodial
investigation and cannot be claimed by the accused during
identification in a police lineup.
Our ruling on this point in People v. Lara48 is instructive:
x x x The guarantees of Sec. 12(1 ), Art. III of the 1987
Constitution, or the so-called Miranda rights, may be invoked only
by a person while he is under custodial investigation. Custodial
investigation starts when the police investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on
a particular suspect taken into custody by the police who starts
the inte1Togation and propounds questions to the person to elicit
incriminating statements. Police line-up is not part of the custodial
investigation; hence, the right to counsel guaranteed by the
Constitution cannot yet be invoked at this stage.49
Defense witness Reynaldo, however, maintained that Pepino and
Gomez were among those already presented to the media as
kidnapping suspects by the DOJ a day before the police lineup
was made. In this sense, the appellants were already the focus of
the police and were thus deemed to be already under custodial
investigation when the out-of-court identification was conducted.
Nonetheless, the defense did not object to the in-court
identification for having been tainted by an irregular out-of-
court identification in a police lineup. They focused, instead,
on the legality of the appellants' arrests.
Whether Edward and Jocelyn could have seen Pepino and
Gomez in various media fora that reported the presentation of the
kidnapping suspects to the media is not for the Court to speculate
on. The records merely show that when defense counsel, Atty.
Caesar Esturco, asked Jocelyn during cross-examination whether
she was aware that there were several kidnap-for-ransom
incidents in Metro Manila, the latter answered that she "can read
in the newspapers."50 At no time did Jocelyn or Edward ever
mention that they saw the appellants from the news reports in
print or on television.
At any rate, the appellants' respective convictions in this case
were based on an independent in-court identification made by
Edward and Jocelyn, and not on the out-of-court
identification during the police lineup. We reiterate that the
RTC and the CA found the court testimonies of these witnesses
to be positive and credible, and that there was no showing that
their factual findings had been arrived at .arbitrarily. The in-court
identification thus cured whatever irregularity might have attended
the police lineup.
As the Court ruled in People v. Algarme:51
Even assuming arguendo the appellants' out-of-court
identification was defective, their subsequent identification in
court cured any flaw that may have initially attended it. We
emphasize that the "inadmissibility of a police lineup identification
x x x should not necessarily foreclose the admissibility of an
independent in-court identification." We also stress that all the
accused-appellants were positively identified by the prosecution
eyewitnesses during the trial.
It is also significant to note that despite the overwhelming
evidence adduced by the prosecution, Pepino and Gomez did not
even testify for their respective defenses.1âw phi 1
d. The Presence of Conspiracy
Conspiracy exists when two or more persons come to an
agreement concerning the commission of a crime and decide to
commit it. It may be proved by direct or circumstantial evidence
consisting of acts, words, or conduct of the alleged conspirators
before, during and after the commission of the felony to achieve a
common design or purpose.
Proof of the agreement does not need to rest on direct evidence,
as the agreement may be inferred from the conduct of the parties
indicating a common understanding among them with respect to
the commission of the offense. Corollarily, it is not necessary to
show that two or more persons met together and entered into an
explicit agreement setting out the details of an unlawful scheme
or the details by which an illegal objective is to be carried out.52
In the present case, the records establish the following facts:
Pepino, Gomez, and another man entered Edward's office, and
initially pretended to be customers; the three told Edward that
they were going to pay, but Pepino pulled out a gun. After Pepino'
s companion took the money from the cashier's box, the
malefactors handcuffed him and forced him to go down to the
parked car; Gomez sat at the front passenger seat of the car
which brought Edward to a safe house in Quezon City; the
abductors removed the tape from Edward's eyes, placed him in a
room, and then chained his legs upon arrival at the safe house;
the abductors negotiated with Edward's family who eventually
agreed to a P700,000.00 ransom to be delivered by the family
driver using Edward's own car; and after four days, three men
and Gomez blindfolded Edward, made him board a car, drove
around for 30 minutes, and left him inside his own car at the UP
Diliman campus.
The collective, concerted, and synchronized acts of the accused
before, during, and after the kidnapping constitute undoubted
proof that Gomez and her co-accused conspired with each other
to attain a common objective, i.e., to kidnap Edward and detain
him illegally in order to demand ransom for his release.
The Proper Penalty:
Article 267 of the Revised Penal Code, as amended, mandates
the imposition of the death penalty when the kidnapping or
detention is committed for the purpose of extorting ransom from
the victim or any other person. Ransom, as employed in the Jaw,
is so used in its common or ordinary sense; meaning, a sum of
money or other thing of value, price, or consideration paid or
demanded for redemption of a kidnapped or detained person, a
payment that releases one from captivity.53
In the present case, the malefactors not only demanded but
received ransom for Edward's release. The CA thus correctly
affirmed the RTC's imposition of the death penalty on Pepino and
Gomez.
With the passage of Republic Act No. 9346, entitled ''An Act
Prohibiting the Imposition of Death Penalty in the
Philippines" (signed into law on June 24, 2006), the death penalty
may no longer be imposed. We thus sentence Gomez to the
penalty of reclusion perpetua without eligibility for parole pursuant
to A.M. No. 15-08-02-SC.54
The reduced penalty shall likewise apply to the non-appealing
party, Pepino, since it is more favorable to him.
The Awarded Indemnities:
In the case of People v. Gambao55 (also for kidnapping for
ransom), the Court set the minimum indemnity and damages
where facts warranted the imposition of the death penalty if not
for prohibition thereof by R.A. No. 9346, as follows: (1)
Pl00,000.00 as civil indemnity; (2) Pl00,000.00 as moral damages
which the victim is assumed to have suffered and thus needs no
proof; and (3) Pl00,000.00 as exemplary damages to set an
example for the public good. These amounts shall earn interest at
the rate of six percent (6%) per annum from the date of the finality
of the Court's Resolution until fully paid.
We thus reduce the moral damages imposed by the CA from
P300,000.00 to Pl00,000.00 to conform to prevailing
jurisprudence on kidnapping cases. This reduced penalty shall
apply to Pepino for being more favorable to him. However, the
additional monetary award (i.e., P100,000.00 civil indemnity)
imposed on Gomez shall not be applied to Pepino.56

We affirm the P700,000.00 imposed by the courts below as

restitution of the amount of ransom demanded and received by
the kidnappers. We also affirm the CA's award of Pl00,000.00 as
exemplary damages based on Gambao.

WHEREFORE, in the light of all the foregoing, we AFFIRM the

challenged June 16, 2006 decision of the Court of Appeals in CA-
G.R. CR-HC No. 02026 with the following MODIFICATIONS:

(1) the penalty imposed on Gomez and Pepino shall be reduced

from death to reclusion perpetua without eligibility for parole;

(2) they are jointly and severally ordered to pay the

reduced amount of PI00,000.00 as moral damages;

(3) Gomez is further ordered to pay the victim

Pl00,000.00 as civil indemnity; and

(4) the awarded amounts shall earn interest at the rate of

six percent (6%) per annum from the date of the finality of
the Court's Decision until fully paid.

SO ORDERED.
 EN BANC
[G.R. No. 111399. September 27, 1996]
ODON PECHO, petitioner, vs. PEOPLE OF THE
PHILIPPINES and the
SANDIGANBAYAN, respondents.
RESOLUTION
DAVIDE, JR., J.:
In our decision of 14 November 1994, we modified the
appealed judgment of the Sandiganbayan in Criminal Case
No. 14844 by holding the petitioner guilty of the complex crime
of attempted estafa through falsification of official and
commercial documents, and sentencing him to suffer an
indeterminate penalty ranging from two (2) years, four (4)
months, and one (1) day of prision correccional as minimum to
ten (10) years and one (1) day of prision mayor as maximum
and to pay a fine of Two Thousand Pesos (P2,000.00).
In short, we held that although the petitioner could not be
convicted of the crime charged, viz., violation of Section 3(e) of
R.A. No. 3019, as amended -- because the said section
penalizes only consummated offenses and the offense
charged in this case was not consummated -- he could,
nevertheless, be convicted of the complex crime of attempted
estafa through falsification of official and commercial
documents, which is necessarily included in the crime
charged.
Unable to accept our verdict, the petitioner seasonably
filed a motion for reconsideration on the ground that after
having been acquitted of the violation of Section 3(e) of R.A.
No. 3019, a special law, he could not be convicted anymore of
attempted estafa through falsification of official and
commercial documents, an offense punishable under the
Revised Penal Code, a general law; otherwise, the
constitutional provision on double jeopardy would be
violated. In other words, his acquittal of the crime charged
precludes conviction for the complex crime of attempted estafa
through falsification of official and commercial documents,
because both offenses arose from the same overt act as
alleged in the information in Criminal Case No. 14844.
In its Comment on the motion for reconsideration signed
only by Assistant Solicitor General Romeo C. de la Cruz and
Solicitor Josette Sonia Holgado-Marcilla, the Office of the
Solicitor General disagrees with the petitioner and asserts that
the rule on double jeopardy cannot be successfully invoked in
this case considering that no new information for estafa
through falsification of public document was filed against the
petitioner; only one information was filed against him and his
co-accused. For double jeopardy to exist, there must be such
new information and the accused must be able to show that
(1) he has been previously brought to trial, (2) in a court of
competent jurisdiction, (3) upon a valid complaint or
information sufficient in form and substance, (4) for the same
offense or an attempt to or frustration thereof as that charged
in the new information, and that (5) the case has been
dismissed or terminated without his consent or after he had
pleaded to the information but before judgment was
rendered.[1]
Nevertheless, the Office of the Solicitor General joins the
petitioner in the latters plea for his acquittal, but for another
ground, namely, insufficiency of evidence.
In the resolution of 22 August 1995, we directed the
Solicitor General to inform the Court whether he agrees with
the recommendation of Assistant Solicitor General De la Cruz
and Solicitor Holgado-Marcilla. In his Manifestation of 14
September 1995, the Solicitor General not only expressed full
agreement with the said recommendation, but even added the
following observations:
10. After reading the Courts Decision, the Solicitor
General has noted that petitioners conviction is
based on circumstantial evidence.
11. The law and a host of the Courts ruling declare
that circumstantial evidence is sufficient for
conviction if the following conditions concur:
(1) There is more that one circumstance;
(2) The facts from which the inferences are derived are proven;
and
(3) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt (Section 3,
Rule 133, Rules of Court).
12. In this case, it should be stressed that the
inference that petitioner falsified documents
appears to be based on another inference, i.e.,
that he was in possession of the same because he
accompanied his co-accused Catre in the
transactions. However, other than accompanying
Catre, there is no evidence on record that
petitioner had custody of the falsified documents.
13. As to the conspiracy angle, there is likewise no
showing that petitioner interceded for Catre. In
fact, it was Catre who talked to Calica. (p. 19-20,
TSN, August 26, 1991) Neither was it shown that
petitioner had a hand in the processing of the
import entry declaration for the release of the
shipment from the Bureau of Customs. It was not
also proven that he was instrumental in the
approval of the import entry declaration.
14. The elements of conspiracy, like the physical acts
constituting the crime itself, must be proven
beyond reasonable doubt. (People vs. Manuel,
234 SCRA 532). To hold an accused guilty as co-
principal by reason of conspiracy, it must be
shown that he performed an overt act in pursuance
or furtherance of the conspiracy. (People
vs. Roxas, 241 SCRA 369). In this regard, it is
respectfully submitted that there is no overt act
conclusively attributable to petitioner which would
pin him down as a co-conspirator.
15. Thus, it is the inexorable duty of the Solicitor
General to recommend petitioners acquittal, as he
so recommends, inasmuch as the People was not
able to adduce evidence sufficient to overcome the
constitutional presumption of petitioners
innocence.
We then required the parties to submit their respective
memoranda on the following issues:
(a) the sufficiency of the evidence for the complex
crime of attempted estafa through falsification of
public and commercial documents, and
(b) the validity of the conviction therefor under an
information for the violation of Section 3(e) of R.A.
No. 3019, as amended, vis-a-vis the constitutional
right of the accused to be informed of the nature
and cause of the accusation against him.
In their respective memoranda, the petitioner and the
Office of the Solicitor General are one in asserting that the
petitioner could not be convicted based entirely on
circumstantial evidence because of the failure of the
prosecution to satisfy the requisites set forth in Section 4, Rule
133 of the Rules of Court, namely, (a) there is more than one
circumstance; (b) the facts from which the inferences are
derived are proven; and (c) the combination of all the
circumstances is such as to produce a conviction beyond
reasonable doubt. The petitioner further cited portions of the
transcripts of the stenographic notes of the testimony of
Customs Broker Constantino Calica which prove that it was
Catre alone who made the introduction to Calica that they
were agents of Eversun Commercial Trading, and that it was
Catre who did all the talking and directly transacted with Calica
regarding the terms and conditions of the particular
engagement and who actually delivered the documents to
him. There is no evidence that the petitioner had a hand in the
processing of the import entry declaration for the release of the
shipment from the Bureau of Customs or was instrumental in
the approval of the import entry declaration. Thus:
Q Now, did Mr. Odon Pecho actually engage your
services?
A They are two, sir, Mr. Joe Catre and Mr. Odon Pecho.
Q Who actually transacted with you with regards to your
services, is it Mr. Catre or Mr. Pecho?
A Mr. Joe Catre, sir.
Q So it was Joe Catre?
A Yes, sir.
Q And not Odon Pecho, is that right?
A Well, he is the companion of Mr. Catre and they
introduced themselves to me that they are the
authorized representative of the importer.
Q That is right. Who introduced to you?
A Mr. Catre was the one who talks [sic] to me, sir.
Q But in your testimony, the person who delivered to you
the documents, the bill of lading, the commercial
invoices, the packing list, the importers sworn
statement, etc. which was made the basis of the, of
your preparation for the processing of the import
entry, who delivered to you these documents that you
mentioned?
A Mr. Catre, sir.
Q And who talked to you about the terms and conditions
of this engagement or contracts?
A Mr. Catre, sir.
Q And not Mr. Odon Pecho?
A Yes, sir.
Q Who actually delivered to you the documents, Mr. Catre
or Mr. Pecho?
A It was Mr. Catre, sir, he was the one handling the case.
AJ ESCAREAL
Q [To] Whom did you talk first?
A Mr. Catre, Your Honor, he was the one handling the
case, the documents, Your Honor.
Q Do you know how they introduced themselves to you?
A That is the only thing that I remember Your Honor that
they came to my office and told me that they are the
importers representatives and that they are engaging
my services.
Q Who said that?
A Mr. Catre, Your Honor.
 Q How about Mr. Pecho?
A No, Your Honor.
Q Did he say anything?
A At that time your Honor, it was Mr. Catre who was doing
that talking.
Q Did Mr. Catre give his name to you?
A Yes, Your Honor.
Q How did he introduce himself?
A That he is Mr. Joe Catre, Your Honor.
Q How about his companion, did his companion introduce
himself to you or he was introduced by Mr. Catre to
you?
A He did not introduce himself to me Your Honor.
Q So during that meeting you do not know that the name
of the companion of Mr. Catre is Odon Pecho.
A Yes, your Honor.
Q And how did your son attend to it?
A Two days after Your Honor, Mr. Catre called our office
to assist and help them in the preparation of the
cargo at the arrastre operator because that is usually
being done by the broker when the shipment goes for
examination. (t.s.n., Hearing of August 26, 1991)
As to the second issue, the Office of the Solicitor General
rejects the theory of the petitioner and submits that the
information in this case contains the essential ingredients of
estafa through falsification of public and commercial
documents; therefore, assuming there is sufficient evidence,
the petitioner could be convicted of the complex crime of
attempted estafa through falsification of public and commercial
documents without violating Section 14(2), Article III of the
Constitution on the right of the accused to be informed of the
nature and cause of the accusation against him.
I
We shall first take up the second issue since it involves a
constitutional right of the accused.
On the assumption that the prosecutions evidence had
satisfied the quantum of proof for conviction for the complex
crime of attempted estafa through falsification of public and
commercial documents, there is absolutely no merit in the
petitioners claim that he could not be convicted of the said
crime without offending his right to be informed of the nature
and cause of the accusation against him, which is guaranteed
by the Bill of Rights.[2] Such right, an ancient bulwark of the
liberties of men, has its origin in the Bill of Rights which the
people of Great Britain demanded and received from the
Prince and Princess of Orange on 13 February 1688. It was
adopted by the Constitution of the United States and was
extended to the Philippinesby Act No. 235, or the Philippine
Bill of 1902.[3] It was later carried into the Jones Law and,
ultimately, enshrined in the Constitutions of 1935, 1973, and
1987. It has the following objectives:
First. To furnish the accused with such a description of the
charge against him as will enable him to make his defense;
second, to avail himself of his conviction or acquittal for
protection against a further prosecution for the same cause; and
third, to inform the court of the facts alleged, so that it may
decide whether they are sufficient in law to support a
conviction, if one should be had (United States vs.Cruikshank,
92 U.S. 542). In order that this requirement may be satisfied,
facts must be stated; not conclusions of law. Every crime is
made up of certain acts and intent; these must be set forth in the
complaint with reasonable particularity of time, place, names
(plaintiff or defendant), and circumstances. In short, the
 complaint must contain a specific allegation of every fact and
circumstance necessary to constitute the crime charged.[4]
Conformably therewith, the Rules of Court has prescribed the
appropriate rules.[5]
What determines the real nature and cause of accusation
against an accused is the actual recital of facts stated in the
information or complaint and not the caption or preamble of
the information or complaint nor the specification of the
provision of law alleged to have been violated, they being
conclusions of law.[6] An incorrect caption is not a fatal
mistake.[7]
It follows then that an accused may be convicted of a
crime which, although not the one charged, is necessarily
included in the latter. Section 4, Rule 120 of the Rules of Court
thus provides:
SEC. 4. Judgment in case of variance between allegation and proof.
-- When there is variance between the offense charged in the
complaint or information, and that proved or established by the
evidence, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the
offense proved included in that which is charged, or of the offense
charged included in that which is proved.
The succeeding Section 5 prescribes the rule in
determining when an offense includes or is included in
another. We have shown in the challenged decision why the
complex crime of attempted estafa through falsification of
public and commercial documents is included in the offense
charged. Moreover, we held that the information in this case
can also be considered as charging two offenses: the violation
of Section 3(e) of R.A. No. 3019 and the complex crime of
attempted estafa through falsification of official and
commercial documents, and since the petitioner failed to
object before trial to such duplicity,[8] he could be validly
convicted of both or either of the offenses charged and
proved.[9]
II
We shall now turn to the first issue: whether the evidence
adduced by the prosecution had established beyond
reasonable doubt the guilt of the petitioner for the complex
crime of attempted estafa through falsification of public and
commercial documents. In light of the consistent and
persistent negative stance of the Office of the Solicitor
General, personally confirmed and reinforced by the Solicitor
General in his separate Manifestation, we re-evaluated the
evidence.
In our decision of 14 November 1994, we based the
conviction of the petitioner on conspiracy.
The question that logically crops up then is not whether
the combination of the circumstantial evidence proved in this
case against the petitioner had established beyond reasonable
doubt that he is guilty of the complex crime of attempted estafa
through falsification of public and commercial documents, as
asseverated by him and the public respondent. Rather, the
question is whether the prosecution had discharged its duty to
establish conspiracy between the petitioner and Catre.
The information[10] charges the petitioner and his co-
accused Joe Catre as principals[11] who conspir[ed],
confabulat[ed], conniv[ed], confederat[ed], and mutually
help[ed] one another, with Catre representing himself to be a
representative of Eversun Commercial Trading of Cotabato
City, a corporation, firm or partnership which turned out to be
non-existent, fake or fictitious. The evidence for the
prosecution, as admitted by the respondent, only showed that
it was Catre who possessed the falsified documents,
contracted the services of Calica, and delivered the
documents to the latter for processing. In the absence of
satisfactory explanation, Catre, being the one in possession of
the forged documents, is presumed to be the forger.[12] Catre,
however, could not provide the explanation because only the
petitioner was tried. The information states that his address is
unknown, and the record does not show that a warrant for his
arrest was issued. The only warrant of arrest that was issued
was that for the petitioner.[13] Assuming that such evidence and
the others adduced by the prosecution are to be admitted to
prove the commission of the crime, a prima facie case enough
to prove the guilt of Catre with moral certainty was duly
established against Catre as a principal. Accordingly, if
conspiracy were proven, the petitioner would be equally guilty
of the offense proved. For, in a conspiracy, every act of one of
the conspirators in furtherance of a common design or
purpose of such a conspiracy is, in contemplation of law, the
act of each of them.[14]
There is conspiracy when two or more persons come to
an agreement concerning the commission of a felony and
decide to commit it.[15] Direct proof of previous agreement to
commit a crime is not necessary. Conspiracy may be deduced
from the mode and manner in which the offense was
perpetrated, or inferred from the acts of the accused
themselves when such point to a joint purpose and design,
concerted action, and community of interest.[16] It is, however,
settled that the same degree of proof required for establishing
the crime is likewise required to support a finding of
conspiracy. In other words, conspiracy must be shown to exist
as clearly and as convincingly as the commission of the
offense itself in order to uphold the fundamental principle that
no one shall be found guilty of a crime except upon proof
beyond reasonable doubt.[17]
It is also essential for one to be a party to a conspiracy as
to be liable for the acts of the others that there be intentional
participation in the transaction with a view to the furtherance of
the common design.[18] Except when he is the mastermind in a
conspiracy, it is necessary that a conspirator should have
performed some overt act as a direct or indirect contribution in
the execution of the crime planned to be committed.[19] The
overt act may consist of active participation in the actual
commission of the crime itself, or it may consist of moral
assistance to his co-conspirators by being present at the
commission of the crime or by exerting moral ascendancy over
the other co-conspirators.[20]
Since conspiracy must be established by proof beyond
reasonable doubt, then the next inquiry would be whether the
prosecution was able to adduce such proof against the
petitioner. It is in this respect that we agree with the People
and the petitioner that the prosecution had only circumstantial
evidence against the petitioner.
Under Section 4, Rule 133 of the Rules of Court,
circumstantial evidence would be sufficient to convict if (a)
there is more than one circumstance; (b) the facts from which
the inferences are derived are proven; and (c) the combination
of all the circumstances is such as to produce a conviction
beyond reasonable doubt. As jurisprudentially formulated, a
judgment of conviction based on circumstantial evidence can
be upheld only if the circumstances proven constitute an
unbroken chain which leads to one fair and reasonable
conclusion pointing to the accused, to the exclusion of all
others, as the guilty person, i.e., the circumstances proven
must be consistent with each other, consistent with the
hypothesis that the accused is guilty, and at the same time
inconsistent with any other hypothesis except that of guilty.[21]
In the instant case, all that the prosecution was able to
prove insofar as the petitioner is concerned is that he and co-
accused Catre are from Surigao del Norte; that he
accompanied Catre in contracting the services of customs
broker Constantino Calica; and that he also was with Catre
when the latter went with Dennis Calica, son of Constantino
Calica, to the Manila International Container Port. In all these
instances, however, it was Catre who transacted the business innocent until proven guilty[23] can be overthrown only by proof
and did all the talking. As a matter of fact, the petitioner was beyond reasonable doubt,[24] the petitioner must then be
not even introduced to Calica. As recapitulated by the Office of acquitted even though his innocence may be doubted.[25]
the Solicitor General in its Memorandum:
WHEREFORE, the petitioners motion for reconsideration
is GRANTED. Our decision of 14 November 1994 is SET
[T]here is no evidence that petitioner interceded for
ASIDE, and another is hereby rendered REVERSING the
Catre. Prosecution witness Calica testified that it was Catre and
challenged decision of 28 June 1993 and resolution of 12
not petitioner, who introduced themselves as agents of Eversun
August 1993 of the Sandiganbayan in Criminal Case No.
Commercial Trading.He also testified that it was Catre who did
14844 and ACQUITTING petitioner ODON PECHO of the
all the talking and directly transacted with him (Calica)
complex crime of attempted estafa through falsification of
regarding the terms and conditions of the particular engagement
official and commercial documents, without, however,
and it was also Catre, and not petitioner, who actually delivered
prejudice to any appropriate administrative action which his
the documents to him (tsn, August 26, 1991). There is no
office may take against him as may be warranted by the
evidence that petitioner had a hand in the processing of the
circumstances in this case.
import entry declaration for the release of the shipment from the
Bureau of Customs. There is also no evidence that petitioner SO ORDERED.
was instrumental in the approval of the import entry
declaration. In short, there is no showing that petitioner Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo,
performed an overt act in furtherance of alleged conspiracy.[22] Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr.,
Panganiban, and Torres, Jr., JJ., concur.
Mendoza, J., on leave.
The evidence for the prosecution likewise failed to prove
that the petitioner (1) personally represented himself as an
agent of Eversun Commercial Trading; (2) knew of the falsity
of any of the public and commercial documents in question;
and (3) had, at any time, possession of all or some of the said
documents.
Otherwise stated, there is no sufficient circumstantial
evidence to prove conspiracy between the petitioner and Catre
to commit the complex crime of estafa through falsification of
public and commercial documents. Neither is there evidence
of petitioners active participation in the commission of the
crime. The concordant combination and cumulative effect of
the acts of the petitioner as proven by the prosecutions
evidence fails to satisfy the requirements of Section 4, Rule
133 of the Rules of Court. There is reasonable doubt as to his
guilt. And since his constitutional right to be presumed
 FIRST DIVISION

Complainant Armed Forces and Police Savings and Loan

NOE S. ANDAYA, G.R. No. 168486 Association, Inc. (AFPSLAI) is a non-stock and non-profit
Petitioner,
Present: association authorized to engage in savings and loan transactions. In
Panganiban, C.J 1986, petitioner Noe S. Andaya was elected as president and general
. (Chairperson),
manager of AFPSLAI. During his term, he sought to increase the
- versus - Ynares-Santiago,
Austria-Martinez, capitalization of AFPSLAI to boost its lending capacity to its
Callejo, Sr., members. Consequently, on June 1, 1988, the Board of Trustees of
and
Chico- AFPSLAI passed and approved Resolution No. RS-88-006-048
Nazario, JJ. setting up a Finders Fee Program whereby any officer, member or
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated: employee, except investment counselors, of AFPSLAI who could
solicit an investment of not less than P100,000.00 would be entitled
June 27, 2006
to a finders fee equivalent to one percent of the amount solicited.
x ---------------------------------------------------------------------------------
------- x
In a letter[4] dated September 1991, the Central Bank wrote
DECISION Gen. Lisandro C. Abadia, then Chairman of the Board of Trustees,
YNARES-SANTIAGO, J.: regarding the precarious financial position of AFPSLAI due to its
alleged flawed management. As a result, Gen. Abadia requested the
National Bureau of Investigation (NBI) to conduct an investigation
This is a petition for review on certiorari from the September
on alleged irregularities in the operations of AFPSLAI which led to
29, 2004 Decision[1] of the Court of Appeals in CA-G.R. CR No.
the filing of several criminal cases against petitioner, one of which is
26556, affirming the January 29, 2002 Decision[2] of the Regional
the instant case based on the alleged fraudulent implementation of
Trial Court, Branch 104 of Quezon City in Criminal Case No. 92-
the Finders Fee Program.
36145, convicting petitioner Noe S. Andaya of falsification of
private document, and the April 26, 2005 Resolution[3] denying the
motion for reconsideration.
 On October 5, 1992, an information for estafa through benefit, to the damage and prejudice of the said
offended party in the aforesaid sum of P21,000.00,
falsification of commercial document was filed against petitioner, Philippine Currency.
to wit:
CONTRARY TO LAW.[5] (Emphasis
The undersigned accuses NOE S. ANDAYA supplied)
of the crime of Estafa thru Falsification of
Commercial Document, committed as follows:
The case was raffled to Branch 104 of the Regional Trial
th
That on or about the 8 day of April, 1991 Court of Quezon City and docketed as Criminal Case No. 92-
in Quezon City, Philippines, the above-named 36145. On May 30, 1994, petitioner was arraigned[6] and pleaded not
accused, with intent to gain, by means of deceit,
false pretenses and falsification of commercial guilty to the charge, after which trial on the merits ensued.
document, did then and there, wilfully, unlawfully
and feloniously defraud the ARMED FORCES The prosecution presented two witnesses, namely, Diosdado
AND POLICE SAVINGS AND LOAN
ASSOCIATION, INC., represented by its Chairman Guilas and Judy Balangue.
of the Board of Director[s], Gen. Lisandro C.
Abadia, AFP, in the following manner, to wit: on the Guilas, a general clerk of AFPSLAIs Time Deposit Section,
date and in the place aforementioned the said
testified that on April 8, 1991, he was informed by Tini Gabriel and
accused being then the President and General
Manager of the Armed Forces and Police Savings Julie Alabansa of the Treasury Department that there was a finders
and Loan Association, Inc., caused and approved the fee in the amount of P21,000.00 in his name. Subsequently, Judy
disbursement of the sum of P21,000.00, Philippine
Currency, from the funds of the association, by then Balangue, an investment clerk of the Time Deposit Section, told him
and there making it appear in Disbursement Voucher that the finders fee was for petitioner. When Guilas went to
No. 58380 that said amount represented the 1%
finders fee of one DIOSDADO J. GUILLAS petitioners office to inform him about the finders fee in his (Guilas)
[Guilas]; when in truth and in fact accused knew name, petitioner instructed him to collect the P21,000.00 and turn
fully well that there was no such payment to be
over the same to the latter. Guilas returned to the Treasury
made by the association as finders fee; that by virtue
of said falsification, said accused was able to Department and signed Disbursement Voucher No.
encashed (sic) and received (sic) MBTC Check No. [7]
58380 afterwhich he was issued Metrobank Check No.
583768 in the sum of P21,000.00, which amount [8]
once in his possession, misapplied, misappropriated 683768 for P21,000.00. After encashing the check, he turned over
and converted to his own personal use and the proceeds to petitioner. On cross-examination, Guilas admitted
that there was no prohibition in placing the finders fee under the
name of a person who did not actually solicit the investment.
Balangue also testified that on April 3, 1991, petitioner
instructed him to prepare Certificate of Capital Contribution Monthly
[9]
No. 52178 in the name of Rosario Mercader for an investment in
AFPSLAI in the amount of P2,100,000.00 and to inform Guilas that
the finders fee for the aforesaid investment will be placed in the
latters name. On cross-examination, Balangue confirmed that a
P2,100,000.00 worth of investment from Rosario Mercader was
deposited in AFPSLAI. He further acknowledged that the Finders
Fee Program did not prohibit the placing of another persons name as
payee of the finders fee.
The defense presented three witnesses, namely, Emerita
Arevalo, Ernesto Hernandez and petitioner.
Arevalo, secretary of petitioner in AFPSLAI, explained that
the finders fee was for the P2,100,000.00 investment solicited by
Ernesto Hernandez from Rosario Mercader. The finders fee was
placed in the name of Guilas upon request of Hernandez so that the
same would not be reflected in his (Hernandezs) income tax
return. She alleged that Guilas consented to the arrangement of
placing the finders fee in his (Guilas) name. She also claimed that
there was no prohibition in the Finders Fee Program regarding the
substitution of the name of the solicitor as long as there was no
double claim for the finders fee over the same investment.
Hernandez, an associate member of AFPSLAI and vice
president of Philippine Educational Trust Plan, Inc. (PETP Plans),
testified that sometime in 1991, he was able to solicit from Rosario
Mercader an investment of P2,100,000.00 in AFPSLAI. He also
asked petitioner to place the finders fee in the name of one of his
employees so that he (Hernandez) would not have to report a higher
tax base in his income tax return. On April 8, 1991, petitioner handed
to him the finders fee in the amount of P21,000.00.
Petitioner denied all the charges against him. He claimed
that the P21,000.00 finders fee was in fact payable by AFPSLAI
because of the P2,100,000.00 investment of Rosario Mercader
solicited by Ernesto Hernandez. He denied misappropriating the
P21,000.00 finders fee for his personal benefit as the same was
turned over to Ernesto Hernandez who was the true solicitor of the
aforementioned investment. Since the finders fee was in fact owed
by AFPSLAI, then no damage was done to the association. The
finders fee was placed in the name of Guilas as requested by
Hernandez in order to reduce the tax obligation of the
latter. According to petitioner, Guilas consented to the whole setup.
Petitioner also claimed that Hernandez was an associate
member of AFPSLAI because his application for membership was
approved by the membership committee and the Board of Trustees
and was in fact issued an I.D. There was no prohibition under the
rules and regulation of the Finders Fee Program regarding the
substitution of the name of the solicitor with the name of another
person. On cross-examination, petitioner claimed that he merely
approved the substitution of the name of Hernandez with that of
Guilas in the disbursement voucher upon the request of
Hernandez. He brushed aside the imputation of condoning tax
evasion by claiming that the issue in the instant proceedings was
whether he defrauded AFPSLAI and not his alleged complicity in tax
evasion.
After the defense rested its case, the prosecution presented
two rebuttal witnesses, namely, Ma. Victoria Maigue and Ma.
Fe Moreno.
Maigue, membership affairs office supervisor of AFPSLAI,
testified that Hernandez was ineligible to become a member of
AFPSLAI under sections 1 and 2 of Article II of the associations by-
laws. However, she admitted that the application of Hernandez as
member was approved by the membership committee.
Moreno, legal officer of AFPSLAI at the time of her
testimony on January 25, 2000, stated that there are eight criminal
cases pending against the petitioner in various branches of the
Regional Trial Court of Quezon City. In one case decided by Judge
Bacalla of Branch 216, petitioner was convicted of estafa through
falsification involving similar facts as the instant case. She further
stated that Hernandez was not a member of AFPSLAI under sections
1 and 2 of Article II of the by-laws. On cross-examination, she
admitted that the case decided by Judge Bacalla convicting petitioner
was on appeal with the Court of Appeals.
The defense dispensed with the presentation of Mercader in
view of the stipulation of the prosecution on the fact that Mercader
was a depositor of AFPSLAI and that she was convinced to invest in
the association by Ernesto Hernandez.[10]
On June 20, 2001, the trial court rendered a
[11]
Decision convicting petitioner of falsification of private
document. On July 5, 2001, petitioner filed a motion for new
trial.[12] In an Order[13] dated December 20, 2001, the trial court ruled
that the evidence submitted by petitioner in support of his motion
was inadequate to conduct a new trial, however, in the interest of
substantial justice, the case should still be reopened pursuant to
Section 24,[14] Rule 119 of the Rules of Court in order to avoid a
miscarriage of justice.
Petitioner proceeded to submit documentary evidence
consisting of the financial statements of AFPSLAI from 1996 to
1999 to show that AFPSLAI did not suffer any damage from the
payment of the P21,000.00 finders fee. He likewise offered the
testimony of Paterno Madet, senior vice president of AFPSLAI, who
testified that he was personally aware that Rosario Mercader invested
P2,100,000.00 in AFPSLAI; that Hernandez was a member of
AFPSLAI and was the one who convinced Mercader to invest; that
the finders fee was placed in the name of Guilas; that petitioner
called him to grant the request of Hernandez for the finders fee to be
placed in the name of one of the employees of AFPSLAI; that there
was no policy which prohibits the placing of the name of the solicitor
of the investment in the name of another person; that the substitution
of the name of Hernandez with that of Guilas was approved by
petitioner but he (Madet) was the one who approved the release of
the disbursement voucher.
On January 29, 2002, the trial court rendered the assailed
Decision convicting petitioner of falsification of private document
based on the following findings of fact: Hernandez solicited from
Rosario Mercader an investment of P2,100,000.00 for AFPSLAI;
Hernandez requested petitioner to place the finders fee in the name
of another person; petitioner caused it to appear in the disbursement
voucher that Guilas solicited the aforesaid investment; the voucher
served as the basis for the issuance of the check for P21,000.00
representing the finders fee for the investment of Mercader; and
Guilas encashed the check and turned over the money to petitioner
who in turn gave it to Hernandez.
The trial court ruled that all the elements of falsification of
private document were present. First, petitioner caused it to appear in
the disbursement voucher, a private document, that Guilas, instead of
Hernandez, was entitled to a P21,000.00 finders fee. Second, the
falsification of the voucher was done with criminal intent to cause
damage to the government because it was meant to lower the tax
base of Hernandez and, thus, evade payment of taxes on the finders
fee.
Petitioner moved for reconsideration but was denied by the
trial court in an Order[15] dated May 13, 2002. On appeal, the Court
of Appeals affirmed in toto the decision of the trial court and denied
petitioners motion for reconsideration; hence, the instant petition
challenging the validity of his conviction for the crime of
falsification of private document.
Preliminarily, petitioner contends that the Court of Appeals
contradicted the ruling of the trial court. He claims that the Court of
Appeals stated in certain portions of its decision that petitioner was
guilty of estafa through falsification of commercial document
whereas in the trial courts decision petitioner was convicted of
falsification of private document.
A close reading of the Court of Appeals decision shows that
the alleged points of contradiction were the result of inadvertence in
the drafting of the same. Read in its entirety, the decision of the
Court of Appeals affirmed in toto the decision of the trial court and,
necessarily, it affirmed the conviction of petitioner for the crime of
falsification of private document and not of estafa through
falsification of commercial document.
In the main, petitioner implores this Court to review the
pleadings he filed before the lower courts as well as the evidence on
record on the belief that a review of the same will prove his
innocence. However, he failed to specify what aspects of the factual
and legal bases of his conviction should be reversed.
Time honored is the principle that an appeal in a criminal
case opens the whole action for review on any question including
those not raised by the parties.[16] After a careful and thorough
review of the records, we are convinced that petitioner should be
acquitted based on reasonable doubt.
The elements of falsification of private document under
Article 172, paragraph 2[17] in relation to Article 171[18] of the
Revised Penal Code are: (1) the offender committed any of the acts
of falsification under Article 171 which, in the case at bar, falls
under paragraph 2 of Article 171, i.e., causing it to appear that
persons have participated in any act or proceeding when they did not
in fact so participate; (2) the falsification was committed on a private
document; and (3) the falsification caused damage or was committed
with intent to cause damage to a third party.
Although the public prosecutor designated the offense
charged in the information as estafa through falsification of
commercial document, petitioner could be convicted of falsification
of private document, had it been proper, under the well-settled rule
that it is the allegations in the information that determines the nature
of the offense and not the technical name given by the public
prosecutor in the preamble of the information. We explained this
principle in the case of U.S. v. Lim San[19] in this wise:
From a legal point of view, and in a very
real sense, it is of no concern to the accused what is
the technical name of the crime of which he stands
charged. It in no way aids him in a defense on the
merits. x x x That to which his attention should be
directed, and in which he, above all things else,
should be most interested, are the facts alleged. The
real question is not did he commit a crime given in
the law some technical and specific name, but did he
perform the acts alleged in the body of the
information in the manner therein set forth. x x x
The real and important question to him is, Did you
perform the acts alleged in the manner alleged? not,
Did you commit a crime named murder? If he
performed the acts alleged, in the manner stated, the
law determines what the name of the crime is and
fixes the penalty therefor. x x x If the accused
performed the acts alleged in the manner alleged,
then he ought to be punished and punished
adequately, whatever may be the name of the crime
which those acts constitute.[20]
 The facts alleged in the information are sufficient to
constitute the crime of falsification of private
document. Specifically, the allegations in the information can be
broken down into the three aforestated essential elements of this
offense as follows: (1) petitioner caused it to appear in Disbursement
Voucher No. 58380 that Diosdado Guillas was entitled to a finders
fee from AFPSLAI in the amount of P21,000.00 when in truth and in
fact no finders fee was due to him; (2) the falsification was
committed on Disbursement Voucher No. 58380; and (3) the
falsification caused damage to AFPSLAI in the amount of
P21,000.00.
The first element of the offense charged in the information
was proven by the prosecution. The testimonies of the prosecution
witnesses, namely, Diosdado Guilas and Judy Balangue, as well as
the presentation of Disbursement Voucher No. 58380 established
that petitioner caused the preparation of the voucher in the name of
Guilas despite knowledge that Guilas was not entitled to the finders
fee. Significantly, petitioner admitted his participation in falsifying
the voucher when he testified that he authorized the release of the
voucher in the name of Guilas upon the request of Ernesto
Hernandez. While petitioner did not personally prepare the voucher,
he could be considered a principal by induction, had his conviction
been proper, since he was the president and general manager of
AFPSLAI at the time so that his employees merely followed his
instructions in preparing the falsified voucher.
The second element of the offense charged in the
information, i.e., the falsification was committed in Disbursement
Voucher No. 58380, a private document, is likewise present. It
appears that the public prosecutor erroneously characterized the
disbursement voucher as a commercial document so that he
designated the offense as estafa through falsification of commercial
document in the preamble of the information. However, as correctly
ruled by the trial court,[21] the subject voucher is a private document
only; it is not a commercial document because it is not a
document used by merchants or businessmen to promote or facilitate
trade or credit transactions[22] nor is it defined and regulated by the
Code of Commerce or other commercial law.[23] Rather, it is a private
document, which has been defined as a deed or instrument executed
by a private person without the intervention of a public notary or of
other person legally authorized, by which some disposition or
agreement is proved, evidenced or set forth,[24] because it acted as the
authorization for the release of the P21,000.00 finders fee to Guilas
and as the receipt evidencing the payment of this finders fee.
While the first and second elements of the offense charged in
the information were satisfactorily established by the prosecution, it
is the third element which is decisive in the instant case. In the
information, it was alleged that petitioner caused damage in the
amount of P21,000.00 to AFPSLAI because he caused it to appear in
the disbursement voucher that Diosdado Guilas was entitled to a
P21,000.00 finders fee when in truth and in fact AFPSLAI owed no
such sum to him. However, contrary to these allegations in the
information, petitioner was able to prove that AFPSLAI owed a
finders fee in the amount of P21,000.00 although not to Guilas but to
Ernesto Hernandez.
It was positively shown that Hernandez was able to solicit a
P2,100,000.00 worth of investment for AFPSLAI from Rosario
Mercader which entitled him to a finders fee equivalent to one
percent of the amount solicited (i.e., P21,000.00) under the Finders
Fee Program. The documentary evidence consisting of the Certificate
of Capital Contribution Monthly No. 52178[25] which was presented
by the prosecution categorically stated that Rosario Mercader
deposited P2,100,000.00 worth of investment in AFPSLAI. In fact,
Rosario Mercader was no longer presented as a defense witness in
view of the stipulation by the prosecution on the fact that Mercader
was a depositor of AFPSLAI and that Hernandez was the one who
convinced her to make such deposit.[26] Moreover, the defense
showed that the disbursement voucher was merely placed in the
name of Guilas upon the request of Hernandez so that he would have
a lower tax base. Thus, after Guilas received the P21,000.00 from
AFPSLAI, he gave the money to petitioner who in turn surrendered
the amount to Hernandez.
It was further established that Hernandez was an associate
member of AFPSLAI and, thus, covered by the Finders Fee
Program. The prosecution tried to cast doubt on the validity of
Hernandezs membership in the association but it merely relied on the
unsubstantiated claims of its two rebuttal witnesses, namely, Ma.
Victoria Maigue, membership affairs office supervisor of
AFPSLAI and Ma. Fe Moreno, legal officer of AFPSLAI, who
claimed that Hernandez was disqualified from being an associate
member under AFPSLAIs by-laws. However, except for a recital of
certain provisions of the by-laws, they failed to support their claims
with documentary evidence clearly showing that Hernandez was
disqualified from being an associate
member. Significantly, Maigue admitted on cross-examination that
Hernandezs membership was approved by AFPSLAIs membership
committee and was issued an AFPSLAI I.D. card.[27] Documentary
evidence consisting of Hernandezs I.D. card as well as the oral
testimonies of petitioner, Arevalo and Hernandez, and the admission
of Maigue on cross-examination, support the claim of the defense
that Hernandez was an associate member of AFPSLAI.
Considering that Hernandez was able to solicit a
P2,100,000.00 investment from Mercader, it follows that he was
entitled to receive the finders fee in the amount of
P21,000.00. AFPSLAI suffered no damage because it really owed
the P21,000.00 finders fee to Hernandez albeit the sum was initially
paid to Guilas and only later turned over to Hernandez. Clearly then,
the third essential element of the offense as alleged in the
information, i.e., the falsification caused damage to AFPSLAI in the
amount of P21,000.00, was not proven by the prosecution.
In all criminal prosecutions, the burden of proof is on the
prosecution to establish the guilt of the accused beyond reasonable
doubt.[28] It has the duty to prove each and every element of the crime
charged in the information to warrant a finding of guilt for the said
crime or for any other crime necessarily included therein. However,
in the case at bar, the prosecution failed to prove the third essential
element of the crime charged in
information. Thus, petitioner should be acquitted due to insufficiency
of evidence.
The trial court convicted petitioner of falsification of private
document, while conceding that AFPSLAI suffered no damage,
however, the court reasoned that the third essential element of
falsification of private document was present because the
falsification of the voucher was done with criminal intent to cause
damage to the governmentconsidering that its purpose was to lower
the tax base of Hernandez and, thus, allow him to evade payment of
taxes on the finders fee.
We find ourselves unable to agree with this ratiocination of
the trial court because it violates the constitutional right[29] of
petitioner to be informed of the nature and cause of the accusation
[30]
against him. As early as the 1904 case of U.S. v. Karelsen,
rationale of this fundamental right of the accused was already
explained in this wise:
The object of this written accusation was
First. To furnish the accused with such a description
of the charge against him as will enable him to make
his defense; and second, to avail himself of his
conviction or acquittal for protection against a
further prosecution for the same cause; and third, to
inform the court of the facts alleged, so that it may
decide whether they are sufficient in law to support a
conviction, if one should be had. (United States vs.
the Cruikshank, 92 U.S. 542.) In order that this
requirement may be satisfied, facts must be stated,
not conclusions of law. Every crime is made up of
certain acts and intent; these must be set forth in the
complaint with reasonable particularity of time,
place, names (plaintiff and defendant), and
circumstances. In short, the complaint must contain
a specific allegation of every fact and circumstances
necessary to constitute the crime
charged.[31] (Emphasis supplied)
It is fundamental that every element constituting the offense
must be alleged in the information. The main purpose of requiring
the various elements of a crime to be set out in the information is to
enable the accused to suitably prepare his defense because he is
presumed to have no independent knowledge of the facts that
constitute the offense.[32]The allegations of facts constituting the
offense charged are substantial matters and an accuseds right to
question his conviction based on facts not alleged in the information
the
cannot be waived.[33] No matter how conclusive and convincing the
evidence of guilt may be, an accused cannot be convicted of any
offense unless it is charged in the information on which he is tried or
is necessarily included therein.[34] To convict him of a ground not
alleged while he is concentrating his defense against the ground
alleged would plainly be unfair and underhanded.[35] The rule is that
a variance between the allegation in the information and proof
adduced during trial shall be fatal to the criminal case if it is material
and prejudicial to the accused so much so that it affects his
substantial rights.[36]
Thus, in Alonto v. People,[37] Dico v. Court of
[38] [39]
Appeals and Ongson v. People, we acquitted the accused for
violation of Batas Pambansa Bilang 22 (The Bouncing Checks Law)
because there was a variance between the identity and date of
issuance of the check alleged in the information and the check
proved by the prosecution during trial:
This Court notes, however, that under the
third count, the information alleged that petitioner
issued a check dated May 14, 1992 whereas the
documentary evidence presented and duly marked as
Exhibit "I" was BPI Check No. 831258 in the
amount of P25,000 dated April 5, 1992. Prosecution
witness Fernando Sardes confirmed petitioner's
issuance of the three BPI checks (Exhibits G, H, and
I), but categorically stated that the third check (BPI
Check No. 831258) was dated May 14, 1992, which
was contrary to that testified to by private
complainant Violeta Tizon, i.e., BPI check No.
831258 dated April 5, 1992. In view of this variance,
the conviction of petitioner on the third count
(Criminal Case No. Q-93-41751) cannot be
sustained. It is on this ground that petitioner's fourth
assignment of error is tenable, in that the
prosecution's exhibit, i.e., Exhibit "I" (BPI Check
No. 831258 dated April 5, 1992 in the amount of
P25,000) is excluded by the law and the rules on
evidence. Since the identity of the check enters into
the first essential element of the offense under
Section 1 of B.P. 22, that is, that a person makes,
draws or issues a check on account or for value, and
the date thereof involves its second element, namely,
that at the time of issue the maker, drawer or issuer
knew that he or she did not have sufficient funds to
cover the same, there is a violation of petitioner's
constitutional right to be informed of the nature of
the offense charged in view of the aforesaid
variance, thereby rendering the conviction for the
third count fatally defective.[40] (Underscoring
supplied)
Similarly, in the case of Burgos v. Sandiganbayan,[41] we
upheld the constitutional right of the accused to be informed of the
accusation against him in a case involving a variance between the
means of committing the violation of Section 3(e) of R.A.
3019 alleged in the information and the means found by the
Sandiganbayan:
Common and foremost among the issues
raised by petitioners is the argument that the
Sandiganbayan erred in convicting them on a finding
of fact that was not alleged in the information. They
contend that the information charged them with
having allowed payment of P83,850 to Ricardo
Castaeda despite being aware and knowing fully
well that the surveying instruments were not actually
repaired and rendered
functional/operational. However, their conviction by
the Sandiganbayan was based on the finding that the
surveying instruments were not repaired in
accordance with the specifications contained in the
job orders.
xxxx
In criminal cases, where the life and liberty
of the accused is at stake, due process requires that
the accused be informed of the nature and cause of
the accusation against him. An accused cannot be
convicted of an offense unless it is clearly charged in
the complaint or information. To convict him of an
offense other than that charged in the complaint or
information would be a violation of this
constitutional right.
The important end to be accomplished is to
describe the act with sufficient certainty in order that
the accused may be appraised of the nature of the
charge against him and to avoid any possible
surprise that may lead to injustice. Otherwise, the
accused would be left in the unenviable state of
speculating why he is made the object of a
prosecution.
xxxx
There is no question that the manner of
commission alleged in the information and the act
the Sandiganbayan found to have been committed
are both violations of Section 3(e) of R.A.
3019. Nonetheless, they are and remain two different
means of execution and, even if reference to Section
3(e) of R.A. 3019 has been made in the information,
appellants conviction should only be based on that
which was charged, or included, in the
information. Otherwise, there would be a violation
of their constitutional right to be informed of the
nature of the accusation against them.
In Evangelista v. People, a judgment of
conviction by the Sandiganbayan, for violation of
Section 3(e) of the Anti-Graft and Corrupt Practices
Act, was reversed by the Court on the ground that
accused was made liable for acts different from
those described in the information. The accused
therein was convicted on the finding that she failed
to identify with certainty in her certification the
kinds of taxes paid by Tanduay Distillery, Inc.,
although the information charged her with falsifying
said certificate. The Court said that, constitutionally,
the accused has a right to be informed of the nature
and cause of the accusation against her. To convict
her of an offense other than that charged in the
complaint or information would be a violation of
this constitutional right.
Contrary to the stand of the prosecution, the
allegations contained in the information and the
findings stated in the Sandiganbayan decision are
not synonymous. This is clearly apparent from the
mere fact that the defenses applicable for each one
are different. To counter the allegations contained in
 the information, petitioners only had to prove that
the instruments were repaired and rendered
functional/operational. Under the findings stated in
the Sandiganbayan decision, petitioners defense
would have been to show not only that the
instruments were repaired, but were repaired in
accordance with the job order.
xxxx
This is not to say that petitioners cannot be
convicted under the information charged. The
information in itself is valid. It is only that the
Sandiganbayan erred in convicting them for an act
that was not alleged therein. x x x.[42] (Underscoring
supplied)
As in the Burgos case, the information in the case at bar is
valid, however, there is a variance between the allegation in the
information and proof adduced during trial with respect to the third
essential element of falsification of private document, i.e., the
falsification caused damage or was committed with intent to cause
damage to a third party. To reiterate, petitioner was charged in the
information with causing damage to AFPSLAI in the amount of
P21,000.00 because he caused it to appear in the disbursement
voucher that Guilas was entitled to a P21,000.00 finders fee when in
truth and in fact AFPSLAI owed no such amount to Guilas.
However, he was convicted by the trial court of falsifying the
voucher with criminal intent to cause damage to the government
because the trial court found that petitioners acts were designed to
lower the tax base of Hernandez and aid the latter in evading
payment of taxes on the finders fee.
We find this variance material and prejudicial
to petitioner which, perforce, is fatal to his conviction in the instant
case. By the clear and unequivocal terms of the information, the
prosecution endeavored to prove that the falsification of the voucher
by petitioner caused damage to AFPSLAI in the amount of
P21,000.00 and not that the falsification of the voucher was
done with intent to cause damage to the government. It is apparent
that this variance not merely goes to the identity of the third party
but, more importantly, to the nature and extent of the damage done to
the third party. Needless to state, the defense applicable for each is
different.
More to the point, petitioner prepared his defense based
precisely on the allegations in the information. A review of the
records shows that petitioner concentrated on disproving
that AFPSLAI suffered damage for this was the charge in the
information which he had to refute to prove his innocence. As
previously discussed, petitioner proved that AFPSLAI suffered no
damage inasmuch as it really owed the finders fee in the amount of
P21,000.00 to Hernandez but the same was placed in the name of
Guilas upon Hernandezs request. If we were to convict petitioner
now based on his intent to cause damage to the government, we
would be riding roughshod over his constitutional right to be
informed of the accusation because he was not forewarned that he
was being prosecuted for intent to cause damage to the
government. It would be simply unfair and underhanded to convict
petitioner on this ground not alleged while he was concentrating his
defense against the ground alleged.
The surprise and injustice visited upon petitioner becomes
more evident if we take into consideration that the prosecution never
sought to establish that petitioners acts were done with intent to
cause damage to the government in that it purportedly aided
Hernandez in evading the payment of taxes on the finders fee. The
Bureau of Internal Revenue was never made a party to this case. The
income tax return of Hernandez was, likewise, never presented to
show the extent, if any, of the actual damage to the government of
the supposed under declaration of income by Hernandez. Actually,
the prosecution never tried to establish actual damage, much less
intent to cause damage, to the government in the form of lost income
taxes. There was here no opportunity for petitioner to object to the
evidence presented by the prosecution on the ground that the
evidence did not conform to the allegations in the information for the
simple reason that no such evidence was presented by the
prosecution to begin with.
Instead, what the trial court did was to deduce intent to cause
damage to the government from the testimony of petitioner and his
three other witnesses, namely, Arevalo, Hernandez and Madet, that
the substitution of the names in the voucher was intended to lower
the tax base of Hernandez to avoid payment of taxes on the finders
fee. In other words, the trial court used part of the defense of
petitioner in establishing the third essential element of the offense
which was entirely different from that alleged in the
information. Under these circumstances, petitioner obviously had no
opportunity to defend himself with respect to the charge that he
committed the acts with intent to cause damage to the government
because this was part of his defense when he explained the reason for
the substitution of the names in the voucher with the end goal of
establishing that no actual damage was done to AFPSLAI. If we
were to approve of the method employed by the trial court in
convicting petitioner, then we would be sanctioning the surprise and
injustice that the accuseds constitutional right to be informed of the
nature and cause of the accusation against him precisely seeks to
prevent. It would be plain denial of due process.
In view of the foregoing, we rule that it was error to convict
petitioner for acts which purportedly constituted the third essential
element of the crime but which were entirely different from the acts
alleged in the information because it violates in no uncertain terms
petitioners constitutional right to be informed of the nature and cause
of the accusation against him.
No doubt tax evasion is a deplorable act because it deprives
the government of much needed funds in delivering basic services to
the people. However, the culpability of petitioner should have been
established under the proper information and with an opportunity for
him to adequately prepare his defense. It is worth mentioning that the
public prosecutor has been apprised of petitioners defense in the
[43]
counter-affidavit that he filed before the NBI. He claimed there
that AFPSLAI really owed the P21,000.00 finders fee not to Guilas
but to Hernandez and that the finders fee was placed in the name of
Guilas under a purported financial arrangement between petitioner
[44]
and Guilas. Yet in his Resolution dated September 14, 1992, the
public prosecutor disregarded petitioners defense and proceeded to
file the information based on the alleged damage that petitioner
caused to AFPSLAI in the amount of P21,000.00 representing
[45]
unwarranted payment of finders fee. During the trial proper, the
prosecution was again alerted to the fact that AFPSLAI suffered no
actual damage and that the substitution of the names in the voucher
was designed to aid Hernandez in evading the payment of taxes on
the finders fee. This was shown by no less than the prosecutions own
documentary evidence the Certificate of Capital Contribution
Monthly No. 52178 in the amount of P2,100,000.00 issued to
Rosario Mercader which was prepared and identified by the
prosecution witness, Judy Balangue. Later on, the testimonies of the
defense witnesses, Arevalo, Hernandez, Madet and petitioner, clearly
set forth the reasons for the substitution of the names in the
disbursement voucher. However, the prosecution did not take steps
to seek the dismissal of the instant case and charge petitioner and his
cohorts with the proper information before judgment by the trial
court as expressly allowed under Section 19,[46] Rule 119 of the
Rules of Court.[47] Instead, the prosecution proceeded to try petitioner
under the original information even though he had an adequate
defense against the offense charged in the information. Regrettably,
these mistakes of the prosecution can only benefit petitioner.
In closing, it is an opportune time to remind public
prosecutors of their important duty to carefully study the evidence on
record before filing the corresponding information in our courts of
law and to be vigilant in identifying and rectifying errors
made. Mistakes in filing the proper information and in the ensuing
prosecution of the case serve only to frustrate the States interest in
enforcing its criminal laws and adversely affect the administration of
justice.
WHEREFORE, the petition is GRANTED. The September
29, 2004 Decision and April 26, 2005 Resolution of the Court
Appeals in CA-G.R. CR No. 26556 are REVERSED and SET
ASIDE. Petitioner is ACQUITTED based on reasonable doubt. The
Bail Bond is CANCELLED.
SO ORDERED.
 EN BANC 28,[3] dated 27 December 2000, finding him guilty beyond reasonable
THE PEOPLE OF THE PHILIPPINES, G.R. No. 174473 doubt of two (2) counts of qualified rape and one (1) count of acts of
Appellee, lasciviousness.
Present:
PUNO, C.J.,
QUISUMBING, In three (3) separate Informations[4] for Criminal Cases No. SC-7422,
YNARES-SANTIAGO,
SC-7423 and SC-7424 all dated 16 June 1999, appellant was indicted
- versus - SANDOVAL-GUTIERREZ,
CARPIO, before the RTC for three (3) counts of qualified rape against his
AUSTRIA-MARTINEZ, minor daughter AAA.[5] The accusatory portions in all the
CORONA,
CARPIO-MORALES, Informations are identical, except as regards the date of commission
AZCUNA, of the crime. The Information in Criminal Case No. SC-7422 reads:
ALVIN ABULON y SALVANIA, TINGA,
Appellant. CHICO-NAZARIO,
GARCIA,
VELASCO, JR., At the instance of the private complainant [AAA]
NACHUR with the conformity of her mother [BBB][6] in a
A, and sworn complaint filed with the Municipal Circuit
REYES, JJ. Trial Court of Lumban-Kalayaan (Laguna), the
undersigned Assistant Provincial Prosecutor of
Promulgated: Laguna hereby accuses ALVIN ABULON Y
SALVANIA, of the crime of RAPE, committed as
August 17, 2007 follows:
x-------------------------------------------------------------------------------- x
That on or about March 14, 1999, in
DECISION the Municipality of Kalayaan,
Province of Laguna, and within the
TINGA, J.: jurisdiction of this Honorable Court,
the above-named accused, with
lewd designs, with grave abuse of
For automatic review is the decision[1] of the Court of Appeals (CA) confidence or obvious
dated 28 April 2006, affirming with modification the decision[2] of ungratefulness, and with force and
intimidation, did then and there
the Regional Trial Court (RTC) of Santa Cruz, Laguna, Branch wilfully [sic], unlawfully and
 feloniously have carnal knowledge
of his legitimate minor daughter,
[AAA], who at the [sic] time was
thirteen (13) years of age, against
her will and consent and to her
damage and prejudice.
CONTRARY TO LAW.
After appellant pleaded not guilty, trial ensued with AAA herself, as
the first prosecution witness, testifying to the following facts:
AAA is the oldest of five (5) legitimate children born to appellant
and BBB. On 14, 15, and 16 March 1999, appellant raped AAA. The
first rape incident occurred at around 1:30in the morning of 14
March 1999. AAA was home, fast asleep next to her brother and
sister when she suddenly woke up to the noise created by her father
who arrived drunk, but who likewise soon thereafter returned to the
wedding festivities he was attending. Abiding by their fathers
[7]
instructions, AAA and her siblings went back to sleep.
AAA was next awakened by the weight of her father lying naked on
top of her. Appellant had removed her underwear while she slept. He
poked a knife on AAAs waist and threatened to kill her and her
siblings if she reported the incident to anyone. She begged him to
stop but he proceeded to kiss her mouth, vagina, and breast, and to
have carnal knowledge of her.[8] Although they witnessed the
ongoing ordeal, AAAs siblings could do nothing but cry as appellant
likewise poked the knife on them.[9] The following morning, AAA
found a whitish substance and blood stains on her panty.[10]
On 15 March 1999, at around 10:30 in the evening, AAA and her
siblings were awakened as appellant came home drunk. He told them
to eat first as they had not taken their supper yet. After dining
together, appellant left and AAA, her brother, and her sister went
back to sleep.[11] As in the previous evening, appellant roused AAA
in mid-sleep. This time, she woke up with her father holding her
hand, covering her mouth and lying on top of her. He undressed
AAA, then mounted her. Repeatedly, he inserted his penis into her
vagina, and AAA felt pain in her private parts. Appellant also kissed
and fondled AAA on different parts of her body.[12]
Again, AAAs siblings could only cry as they saw appellant rape their
sister. AAAs sister, however, took a pen and wrote her a note which
read: Ate, let us tell what father was doing to the police officer. After
appellant had raped AAA, the latters sister asked their father why he
had done such to AAA. In response, appellant spanked AAAs sister
and threatened to kill all of them should they report the incidents to
the police.[13] The sisters nonetheless related to their relatives AAAs
misfortune, but the relatives did not take heed as they regarded
appellant to be a kind man.[14]
The third rape episode happened at around 3:30 in the morning of 16
March 1999. Although appellant did not insert his penis into AAAs
vagina on this occasion, he took off her lower undergarments and
kissed her vagina.[15] On cross-examination, AAA asserted that her
father inserted his tongue into the hole of her vagina and she felt pain
because of this.[16]
To corroborate AAAs testimony, the prosecution presented BBB and
[17]
AAAs 6-year old brother CCC. BBB testified that she was a stay-
in housemaid working in Las Pias on the dates that her daughter was
raped by appellant. On 26 March 1999, she went home and stayed
with her family. However, it was only on 4 May 1999 that BBB
learned of the rape, when CCC told her that appellant had raped
AAA three (3) times and that he had seen his father on top of his
sister during those occasions. BBB then verified the matter with
AAA herself, and the latter affirmed the incidents. BBB thus took
AAA with her to the barangay and police authorities to report the
incidents, and later to the provincial hospital for medical
examination.[18]
CCC testified that on three (3) separate occasions, he saw his father
lying naked on top of AAA, who was likewise naked.[19]
The prosecution also presented SPO1 Bayani G. Montesur (SPO1
Montesur) and Dr. Gloria Cabael (Dr. Cabael). SPO1 Montesur
identified the Police Blotter of 4 May 1999which recorded the
complaints of rape against appellant and the report of the latters
arrest.[20] Dr. Cabael, on the other hand, testified that she examined
AAA on 4 May 1999upon the request of Police Officer Gallarosa.
She identified the Rape Case Report she prepared thereafter.[21]
Appellant testified as the sole witness on his behalf, proffering denial
and alibi as his defenses. According to appellant, he was hired by his
aunt, Raquel Masangkay, to deliver hogs and that at 1:30 in the
morning of 14 March 1999, he was in Calamba, Laguna pursuant to
such employment. He averred that he went home at 7:00 in the
morning of the following day and thus could not have raped his
daughter as alleged.[22] Likewise denying the second rape charge,
appellant testified that on 15 March 1999, he attended a wedding
ceremony in Sityo Kalayaan, San Antonio, Kalayaan, Laguna. He
went home drunk at 6:00 that evening and promptly went to
sleep.[23] Similarly, at 3:00 in the morning of 16 March 1999,
appellant claimed to have been asleep with his children and could not
have thus committed the rape as charged.[24]
Finding that the prosecution had proven beyond reasonable
doubt the guilt of appellant of the crime of qualified rape in Criminal
Case Nos. SC-7422 and SC-7423 and the crime of acts of
lasciviousness in Criminal Case No. SC-7424, the RTC rendered a
Consolidated Judgment against appellant and sentenced him
accordingly, thus:

WHEREFORE:
Under Criminal Case No. SC-7422, this Court finds
the accused ALVIN ABULON y SALVANIA
GUILTY BEYOND REASONABLE DOUBT as
PRINCIPAL of CONSUMMATED QUALIFIED
RAPE as defined and penalized under Article 335 of
the Revised Penal Code, as amended by Rep. Act
No. 7639, otherwise known as the DEATH
PENALTY LAW, and hereby sentences him to
suffer the SUPREME PENALTY of DEATH and to
indemnify the offended party [AAA] the following
sums:
P 75,000.00 - as civil indemnity
50,000.00 - as moral damages; and
50,000.00 - as exemplary damages.
Under Criminal Case No. SC-7423, this
Court finds the accused ALVIN ABULON y
SALVANIA GUILTY BEYOND REASONABLE
DOUBT as PRINCIPAL of CONSUMMATED
QUALIFIED RAPE as defined and penalized under
Article 335 of the Revised Penal Code, as amended
by Rep. Act No. 7639, otherwise known as the
DEATH PENALTY LAW, and hereby sentences
him to suffer the SUPREME PENALTY of DEATH
and to indemnify the offended party [AAA] the
following sums:
P 75,000.00 - as civil indemnity
50,000.00 - as moral damages; and
50,000.00 - as exemplary damages.
Under Criminal Case No. SC-7424, this
Court finds the accused ALVIN ABULON y
SALVANIA GUILTY BEYOND REASONABLE
DOUBT as PRINCIPAL of ACTS OF
LASCIVIOUSNESS as defined and penalized under
Article 336 of the Revised Penal Code and hereby
sentences him to suffer the penalty of imprisonment
for SIX (6) MONTHS of ARRESTO MAYOR as
MINIMUM to SIX (6) YEARS of PRISION
CORRECCIONAL as MAXIMUM.
The accused is further ordered to pay the costs of the
instant three (3) cases.
SO ORDERED.[25]
With the death penalty imposed on appellant, the case was elevated
to this Court on automatic review. However, pursuant to this Courts
ruling in People v. Mateo,[26] the case was transferred to the Court of
Appeals. On 28 April 2006, the appellate court rendered its decision
affirming appellants conviction, but with modification as to damages
awarded to the victim. The dispositive portion of the decision states:
WHEREFORE, the decision of the Regional Trial
Court of Santa Cruz, Laguna, Branch 28, in Criminal
 Case Nos. SC-7422 and SC-7423 finding appellant We affirm the decision of the Court of Appeals with modifications.
Alvin S. Abulon guilty beyond reasonable doubt of
the crimes of qualified rape, and in Criminal Case
No. SC-7424, finding appellant guilty beyond The duty to ascertain the competence and credibility of a witness
reasonable doubt of the crime of acts of rests primarily with the trial court,[30] because it has the unique
lasciviousness, are hereby AFFIRMED.
position of observing the witnesss deportment on the stand while
The civil aspect of the case is MODIFIED to read: testifying. Absent any compelling reason to justify the reversal of the
In Criminal Case Nos. SC-7422-7423, the award of
evaluations and conclusions of the trial court, the reviewing court is
exemplary damages in the amount of [P]50,000.00 is
reduced to [P]25,000.00. In Criminal Case No. SC- generally bound by the formers findings.[31]
7424, appellant is ordered to pay the victim the
amount of [P]30,000.00 as moral damages. We
affirm in all other respects. In rape cases particularly, the conviction or acquittal of the
accused most often depends almost entirely on the credibility of the
Pursuant to A.M. 00-5-03-SC (Amendments to the
Revised Rule of Criminal Procedure to Govern Death complainants testimony. By the very nature of this crime, it is
Penalty Cases), which took effect on October 15, generally unwitnessed and usually the victim is left to testify for
2004, this case is elevated and certified to the
herself.[32] Her testimony is most vital and must be received with the
Supreme Court for its automatic review.
utmost caution.[33]When a rape victims testimony, however, is
[27]
SO ORDERED. straightforward and marked with consistency despite grueling
examination, it deserves full faith and confidence and cannot be
discarded. Once found credible, her lone testimony is sufficient to
In his Brief,[28] appellant assails his conviction and imputes grave
sustain a conviction.[34]
error to the trial court for giving weight and credence to the
testimony of AAA. In particular, he makes capital of AAAs delay in
The court a quo found the testimony of AAA in its entirety
reporting the incidents to her mother. He likewise impugns the trial
to be credible, made in a candid, spontaneous, and straightforward
courts alleged bias in propounding inappropriate leading questions to
manner and never shaken even under rigid cross-examination.[35] We
private complainant AAA. Finally, he maintains that the
agree that AAAs narration of her harrowing experience is worthy of
Informations against him are defective as they failed to allege the
credence, thus:
key element of force and/or intimidation.[29]
Criminal Case No. SC-7422 Q : Are [sic] you still wearing your panty when you
were awakened?
Trial Prosecutor: A : No more, sir.
Q : Tell us what happened at around 1:30 in the
morning of March 11, [sic] 1999 to you? xxxx
A : My brother and sister and I were already asleep Q : What did your father do aside from placing his
when my father who was drank [sic] came body on top of you?
home. We told him to just sleep. My father A : He poked a knife on [sic] me, sir.
told us that he would still return to the
wedding celebration (kasalan). Court:
Q : Did he say something?
xxxx A : Yes, Your Honor.

Q : What happened next when you continued Q : What did he say?

sleeping?
A : I was awakened when I felt my father already on
top of me, sir.
Q : Tell us exactly what was [sic] your position then
at that time you woke up?
A : I was still lying straight down, sir.
Q : How about your father in relation to you, where
was he at the time you woke up?
A : He was on top (nakadagan) of me, sir.
Court:
Q : Was he naked?
A : Already naked, Your Honor.
Q : How about you, do [sic] you have your clothes
on?
A : I have [sic] my lady sando on, Your Honor.
Trial Prosecutor:
A : He said that if he [sic] report her [sic] to anybody
he would kill us, Your Honor.
xxxx
Trial Prosecutor:
Q : What else did he do aside from telling you huag
kang magsusumbong?
A : He also poked the knife on [sic] my brother and
sister, sir.
Q : They were already awakened at that time?
A : Yes, sir.
Q : What else did he do aside from poking a knife on
[sic] you and your brother and sister?
A : No more, sir.
Court:
Q : While your father according to you is [sic] on
top of you, what did he do if any?
A : Kinayog na po niya ako.

Q : What do you mean by telling [sic] kinayog na
po niya ako?
A : He was moving, Your Honor.
Q : While your father was moving, what else was
happening at that time?
A : I felt pain, Your Honor.
Trial Prosecutor:
Q : From where did you feel that pain?
A : From my private part, sir.
xxxx
Q : Do you know if you know why you felt the
pain on the lower portion of your body?
A : Yes, sir.
Q : Please tell us if you know?
A : Something whitish coming out from it, sir.
Court:
Q : From where did it come from [sic]? That
whitish substance?
A : From my fathers private part, Your Honor.
Q : Why, what happened to the private part of
your father?
A : I do not know, Your Honor.
Q : When you felt pain, what was your father
doing then?
A : He repeated what he told [sic] previously not
to tell to [sic] anybody.
Q : At that time, did you see the private part of
your father?
A : Yes, Your Honor.
Q : When you felt pain. Do you know what is [sic]
happening to the private part of your
father?
A : Yes, Your Honor.
Q : What was happening?
A : His private part stiffened or hardened
(tumirik), Your Honor.
Q : Where was it placed if any?
A : Into my private part, Your Honor.
Q : Did the private part of you father actually
penetrate your vagina?
A : Yes, Your Honor.
Q : What did you feel at the time the penis of
your father entered your vagina?
A : It was painful, Your Honor.
Q : At that time was your father making any
movement?
A : Yes, Your Honor.
Q : Will you describe the movement made by
your father?
A : (Witness demonstrating an upward and
downward stroke by placing her right
palm over her left hand)
Trial Prosecutor:
Q : Did he kiss you?
A : Yes, sir.
Q : In what part of your body?
A : On my mouth, sir.
Q : Aside from your mouth, what other part or parts
of your body did he kiss?
A : On my private part, sir.
Q : When did he kiss you private part, before
inserting his penis or after?
A : After he inserted his penis, sir.
Q : What other part of your body did he kiss?
A : On my breast, sir.[36]
xxxx
Criminal Case No. SC-7423
TP. Arcigal, Jr.:
Q : Now, you said that the second incident happened
[on] March 15, 1999, am I correct?
A : Yes, sir.
Q : And where and what time said [sic] second
incident happened?
A : 10:30 in the evening, sir, also in our house, sir.
xxxx
Q : And what were you doing when your father
returned at around 11:00 oclock in the
evening?
A : We were all asleep, sir.
Q : And how did you come to know that he returned
at around 11:00 P.M.?
A : My father suddenly held my hand, sir.
Q : And because of that, you were awakened?
A : Yes, sir.
Q : And what happened when you were
awakened because your father held your
hand?
A : He covered my mouth, sir.
Q : And after covering your mouth, what else did
he do?
A : He removed the lower portion of my
clothes. Hinubuan po niya ako.
xxxx
Q : After removing your lady sando, what else
did he do?
A : He laid himself on top of me, sir.
xxxx
Q : Now, what did he do to you when he was
already on top of you?
A : He was kinakayog niya po ako.
Q : Aside from kinakayog, what else did he do?
A : He kissed my breast, sir.
Q : Aside from that, what else?
A : He likewise touched my private part, sir.

Q : When he was on top of you, do you know
where was [sic] his penis at that time?
A : Yes, sir.
Q : Where?
A : Into my vagina, sir.
Q : How did you come to know that the penis of
your father was inside your vagina?
A : I felt pain in my private part, sir.
Q : And do you know why you felt pain in your
private part?
A : Yes, sir.
Q : Why?
A : His private part . (Thereafter witness is crying
while uttering words: I am afraid I might
be killed by my father.) He held his penis
into my vagina. Thereafter, inserted it
repeatedly into mine, sir.
Q : And you were able to actually feel his penis
inside your vagina?
A : Yes, sir. [37]
xxxx
Criminal Case No. SC-7424
TP. Arcigal, Jr.:
Q : Now, you said also that you were raped
on March 16, 1999, am I correct?
A : Yes, sir.
Q : What time?
A : It was 3:30 oclock in the morning, sir.
xxxx
TP. Arcigal, Jr.:
Q Now, how did it happen, that third incident?
A I was able to run downstairs but when I was about
to open the door, he was able to hold my
dress, sir.
Q : Was your father drunk at that time?
A : Yes, sir.
Q : How did you come to know?
A : His eyes were red and he was laughing at me
while telling me: It is your end. (Witness
crying while answering the question.)
Q : Now, what happened when your father was able
to hold your dress?
A : He carried me upstairs, sir.
Q : Was he able to carry you upstairs?
A : Yes, sir.
Q : What did he do, if any, when you were upstairs?
A : He removed my panty and shortpants, sir.
Q : After removing your shorts and panty, what
else did he do?
A : No more but he kissed my vagina.
Q : Which part of your vagina did he kiss?
A : That part of my vagina with hold [sic].
Court:
Q : What about your upper garments at that
time?
A : He did not remove it, Your Honor.
Q : What else did he do, aside from that?
A : Nothing more, just that.
Q : After kissing your vagina, what else
happened, if any?
A : He again poked the knife on us, Your Honor.
Q : At that time, was your father naked or not?
A : Still with his clothes on, Your Honor.
xxxx
Q : For clarification, what else, if any, did your
father do after your father kissed your
vagina?
A : Nothing more, merely that act, Your Honor.
Q : You mean your father did not insert his penis
to [sic] your vagina anymore?
A : No more, Your Honor.
xxxx
TP. Arcigal, Jr.:
Q : Now, what did he use in kissing your clitoris?
A : His tongue, sir.
Q : How did you come to know that it was his
tongue that he used?
A : It is because I saw him put out his tongue,
sir.[38]
Verily, it is inconceivable and contrary to human experience for a
daughter, who is attached to her father by the natural bond of love
and affection, to accuse him of rape, unless he is the one who raped
and defoliated her.[39] As we have pronounced in People v. Canoy:[40]
It is unthinkable for a daughter to accuse her own
father, to submit herself for examination of her most
intimate parts, put her life to public scrutiny and
expose herself, along with her family, to shame, pity
or even ridicule not just for a simple offense but for
a crime so serious that could mean the death
sentence to the very person to whom she owes her
life, had she really not have been aggrieved. Nor do
we believe that the victim would fabricate a story of
rape simply because she wanted to exact revenge
against her father, appellant herein, for allegedly
scolding and maltreating her.[41]
In stark contrast with AAAs convincing recital of facts,
supported as it was by the testimonies of BBB and CCC, are
appellants uncorroborated and shaky defenses of denial and alibi.
Nothing is more settled in criminal law jurisprudence than that alibi
and denial cannot prevail over the positive and categorical testimony
and identification of the complainant.[42] Alibi is an inherently weak
defense, which is viewed with suspicion because it can easily be
fabricated.[43] Denial is an intrinsically weak defense which must be
buttressed with strong evidence of non-culpability to merit
[44]
credibility.
The records disclose that not a shred of evidence was
adduced by appellant to corroborate his alibi. Alibi must be
supported by credible corroboration from disinterested witnesses,
otherwise, it is fatal to the accused.[45] Further, for alibi to prosper, it
must be demonstrated that it was physically impossible for appellant
to be present at the place where the crime was committed at the time
of its commission.[46] By his own testimony, appellant clearly failed
to show that it was physically impossible for him to have been
present at the scene of the crime when the rapes were alleged to have
occurred. Except for the first incident, appellant was within the
vicinity of his home and in fact alleged that he was supposedly even
sleeping therein on the occasion of the second and third incidents.
Appellants contention that AAAs accusations are clouded by
her failure to report the alleged occurrences of rape is unmeritorious.
To begin with, AAA categorically testified that she told her fathers
niece about the incidents. However, the latter doubted her, believing
instead that appellant was not that kind of man. AAAs subsequent
attempt to report the incidents to the barangay turned out to be futile
as well as she was only able to speak with the barangay driver, who
happened to be appellants brother-in-law. She was likewise
disbelieved by the latter. Her disclosure of the rapes to a certain
Menoy did not yield any positive result either. Fearing for the lives
of her grandparents, AAA decided not to tell them about the
incidents.[47]
A child of thirteen years cannot be expected to know how to
go about reporting the crime to the authorities.[48] Indeed, We see
how AAA must have felt absolutely hopeless since the people
around her were relatives of her father and her attempts to solicit
help from them were in vain. Thus, AAAs silence in not reporting
the incidents to her mother and filing the appropriate case against
appellant for over a month is sufficiently explained. The charge of
rape is rendered doubtful only if the delay was unreasonable and
unexplained.[49] It is not beyond ken that the child, living under threat
from appellant and having been turned away by trusted relatives,
even accused by them of lying, would simply opt to just suffer in
silence thereafter. In People v. Gutierrez,[50] we held:
Complainants failure to immediately report
the rape does not diminish her credibility. The
silence of a victim of rape or her failure to disclose
her misfortune to the authorities without loss of
material time does not prove that her charge is
baseless and fabricated. It is not uncommon for
young girls to conceal for some time the assault on
their virtues because of the rapists threat on their
lives, more so when the offender is someone whom
she knew and who was living with her.[51]

Appellant brands the trial judge as partial against him for
propounding leading questions to AAA. According to him, were it
not for the lower courts and the prosecutions biased leading
questions, AAA would not have proven the elements of the crimes
charged.[52]
Appellants argument is not well-taken. It is the judges
prerogative to ask clarificatory queries to ferret out the truth.[53] It
cannot be taken against him if the questions he propounds reveal
certain truths which, in turn, tend to destroy the theory of one
[54]
party. After all, the judge is the arbiter and ought to be satisfied
himself as to the respective merits and claims of both parties in
accord with the stringent demands of due process.[55] Also, being the
arbiter, he may properly intervene in the presentation of evidence to
[56]
expedite proceedings and prevent unnecessary waste of time.
Besides, jurisprudence explains that allegations of bias on
the part of the trial court should be received with caution, especially
when the queries by the judge did not prejudice the accused. The
propriety of the judges questions is determined by their quality and
not necessarily by their quantity and, in any event, by the test of
whether the defendant was prejudiced by such questioning or
not.[57] In the instant case, the Court finds that on the whole, the
questions propounded by the judge a quo were but clarificatory in
nature and that, concomitantly, appellant failed to satisfactorily
establish that he was prejudiced by such queries.
The matter of the purportedly defective Informations was
properly addressed by the Court of Appeals, pointing out that a close
scrutiny of the Informations would reveal that the words force and/or
intimidation are specifically alleged therein.[58] Even if these were
not so, well-established is the rule that force or intimidation need not
be proven in incestuous cases. The overpowering moral influence of
a father over his daughter takes the place of violence and offer of
resistance ordinarily required in rape cases where the accused is
unrelated to the victim.[59]
Now, we turn to the determination of the crime for which
appellant under the third charge is liable and the corresponding
penalty therefor. In the Brief for the People, the Office of the
Solicitor General (OSG) argues that all three (3) charges of rape,
including the rape committed on 16 March 1999 subject of Criminal
Case No. SC-7424, were proved beyond reasonable doubt. The
court a quo held that it was clear from the evidence that appellant
merely kissed the vagina of AAA and made no attempt of
penetration, meaning penile penetration, and for that reason found
him guilty of acts of lasciviousness only.[60] Yet, in affirming the trial
court, the Court of Appeals did not find any categorical testimony on
AAAs part that appellant had inserted his tongue in her vagina,
stressing instead that the mere probability of such insertion cannot
take the place of proof required to establish the guilt of appellant
Q : You mean to tell the court when he kissed
beyond reasonable doubt for rape.[61] your vagina he used his lips?
A : His lips and tongue, sir.
The automatic appeal in criminal cases opens the whole case Q : What did he do?
for review,[62] as in this case. Thus, this Court is mandated to re- A : He put out his tongue thereafter he inano the
hole of my vagina.
examine the vital facts established a quo and to properly apply the
law thereto. The two courts below were both mistaken, as we note Court:
that AAA unqualifiedly testified on cross-examination to appellants Q : What did your father do with his tongue?
A : He placed it in the hole of my vagina.
insertion of his tongue into her vagina, viz:
Q : Did you feel pain?
A : Yes, sir.
Court:
Q : On the third time you are [sic] allegedly raped, Q : By just kissing your vagina you felt pain?
you said it happened at 3:30 in the morning A : Yes, Your Honor.[63]
of March 16, 1999.
A : Yes, sir.

Q : And you said yesterday that he did not insert his Notwithstanding the explicit testimony of AAA on the matter, this
pennies [sic] to [sic] your vagina on March Court cannot find appellant guilty of rape as proved, but of acts of
16?
lasciviousness only. In reaching this conclusion, we take a route
A : Yes, sir.
different from the ones respectively taken by the courts below.
Q : What he did is he kissed your vagina?
A : Yes, sir.
With the enactment of Republic Act No. 8353 (R.A. No. 8353),
Q : For how long did he kiss your vagina? otherwise known as the Anti-Rape Law of 1997,[64] the concept of
A : Two minutes, sir.
rape was revolutionized with the new recognition that the crime
Q : What did he actually do when he kissed your should include sexual violence on the womans sex-related orifices
vagina? other than her organ, and be expanded as well to cover gender-free
A : He kissed my vagina, thereafter he laughed
and laughed. rape.[65] The transformation mainly consisted of the reclassification
of rape as a crime against persons and the introduction of rape by
sexual assault[66] as differentiated from the traditional rape through
carnal knowledge or rape through sexual intercourse.
Section 2 of the law provides:
Sec. 2. Rape as a Crime Against Persons. The crime
of rape shall hereafter be classified as a Crime
Against Persons under Title Eight of Act No. 9815,
as amended, otherwise known as the Revised Penal
Code. Accordingly, there shall be incorporated into
Title Eight of the same Code a new chapter to be
known as Chapter Three on Rape, to read as follows:
Article 266-A. Rape; When And How
Committed. Rape Is Committed
1) By a man who shall have carnal knowledge of
a woman under any of the following circumstances:
(a) Through force, threat, or intimidation;
(b) When the offended party is deprived of reason or
otherwise is unconscious;
(c) By means of fraudulent machination or grave
abuse of authority; and
(d) When the offended party is under twelve (12)
years of age or is demented, even though none of the
circumstances mentioned above be present.
2) By any person who, under any of the
circumstances mentioned in paragraph 1
hereof, shall commit an act of sexual assault
by inserting his penis into another persons
mouth or anal orifice, or any instrument
or object, into the genital or anal orifice of
another person.
Paragraph 1 under Section 2 of R.A. No. 8353, which is now
Paragraph 1 of the new Article 266-A of the Revised Penal Code,
covers rape through sexual intercourse while paragraph 2 refers to
rape by sexual assault. Rape through sexual intercourse is also
denominated as organ rape or penile rape. On the other hand, rape by
sexual assault is otherwise called instrument or object rape,[67] also
gender-free rape,[68] or the narrower homosexual rape.[69]
In People v. Silvano,[70] the Court recognized that the fathers
insertion of his tongue and finger into his daughters vaginal orifice
would have subjected him to liability for instrument or object rape
had the new law been in effect already at the time he committed the
acts. Similarly, in People v. Miranda,[71] the Court observed that
appellants insertion of his fingers into the complainants organ would
have constituted rape by sexual assault had it been committed when
the new law was already in effect.
The differences between the two modes of committing rape are the
following:
(1) In the first mode, the offender is always a man,
while in the second, the offender may be a man or a
woman;
 (2) In the first mode, the offended party is always a
woman, while in the second, the offended party may
be a man or a woman;
(3) In the first mode,
is committed through penile penetration of
vagina, while the second is committed by inserting
the penis into another persons mouth or anal orifice,
or any instrument or object into the genital or anal
orifice of another person; and
(4) The penalty for rape under the first mode is
higher than that under the second.
In view of the material differences between the two modes of rape,
the first mode is not necessarily included in the second, and vice-
versa. Thus, since the charge in the Information in Criminal Case
No. SC-7424 is rape through carnal knowledge, appellant cannot be
found guilty of rape by sexual assault although it was proven,
without violating his constitutional right to be informed of the nature
and cause of the accusation against him.
However, following the variance doctrine embodied in Section 4, in
relation to Section 5, Rule 120, Rules of Criminal Procedure,
appellant can be found guilty of the lesser crime of acts of
lasciviousness. Said provisions read:
SEC. 4. Judgment in case of variance between
allegation and proof. When there is a variance
between the offense charged in the complaint or
information and that proved, and the offense as
charged is included in or necessarily includes the
rape offense proved, the accused shall be convicted of the
the offense proved which is included in the offense
charged, or of the offense charged which is included
in the offense proved.
SEC. 5. When an offense includes or is included in
another. An offense charged necessarily includes the
offense proved when
some of the essential elements or ingredients of the
former, as alleged in the complaint or information,
constitutes the latter. And an offense charged is
necessarily included in the offense proved when the
essential ingredients of the former constitute or form
part of those constituting the latter.
Indeed, acts of lasciviousness or abusos dishonestos are necessarily
included in rape.[72]
In light of the passage of R.A. No. 9346, entitled An Act Prohibiting
the Imposition of Death Penalty in the Philippines,[73] the penalty of
death can no longer be imposed. Accordingly, the penalty meted out
to appellant for rape through sexual intercourse in Criminal Cases
No. SC-7422 and SC-7423 is reduced in each case from death
to reclusion perpetua without eligibility for parole.[74] We affirm the
conviction of appellant in Criminal Case No. SC-7424 for acts of
lascivousness but modify the penalty imposed by the Court of maximum, and to pay AAA moral damages in the amount
Appeals instead to an indeterminate sentence of imprisonment of six of P30,000.00 plus costs.
(6) months of arresto mayor as minimum to four (4) years and two
(2) months of prision correccional as maximum as neither mitigating SO ORDERED.

nor aggravating circumstances attended the commission of the crime.

With respect to the civil liability of appellant, we modify the award

in Criminal Cases No. SC-7422 and SC-7423 in light of prevailing
jurisprudence. Therefore, appellant is ordered to indemnify AAA, for
each count of qualified rape, in the amount of P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P25,000.00 as
exemplary damages.[75] The award of damages in Criminal Case No.
SC-7424 is affirmed.

WHEREFORE, the Decision of the Court of Appeals in CA G.R.

CR-HC No. 01926 is AFFIRMED WITH MODIFICATIONS. In
Criminal Cases No. SC-7422 and SC-7423, appellant is found guilty
beyond reasonable doubt of the crime of qualified rape and
sentenced to suffer the penalty of reclusion perpetua without
eligibility for parole and to pay the victim, AAA, in the amounts
of P75,000.00 as civil indemnity, P75,000.00 as moral damages,
and P25,000.00 as exemplary damages plus costs. In Criminal Case
No. SC-7424, appellant is found guilty of the crime of acts of
lasciviousness and sentenced to suffer the indeterminate penalty of
imprisonment for six (6) months of arresto mayor as minimum to
four (4) years and two (2) months of prision correccional as

SECOND DIVISION
G.R. No. 190349, December 10, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FRANCASIO
DELFIN, Accused-Appellant.
RESOLUTION
DEL CASTILLO, J.:
On appeal is the January 27, 2009 Decision1 of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 00077, which affirmed with modification
the Decision2 of the Regional Trial Court (RTC) of Naval, Biliran,
Branch 16 by (1) finding appellant Francasio Delfin (appellant) guilty
beyond reasonable doubt of the crime of simple rape instead of
statutory rape in Criminal Case No. N-2130 and sentencing him to
suffer the penalty of reclusion perpetua and pay the victim “AAA”3 civil
indemnity and moral damages at P75,000.00 each; and, (2) acquitting
him of statutory rape in Criminal Case No. N-2131.
Factual
Appellant was charged in two separate Informations of statutory rape,
the accusatory portions of which read:chan roblesv irtuallaw lib rary
Crim. Case No. N-2130
That on or about the 27th day of May, 2001, between 10:00 and 11:00
o‟clock in the evening, more or less, in the Municipality of Naval,
Biliran Province, Philippines and within the jurisdiction of this
Honorable Court, said accused, with lewd designs, [summoned] “AAA,”
an 11-year old lass on her way to a bakery after [watching] a video
show, through hand signal but as she was about to run, accused
picked up a stone so she approached him[. He then] held her right
hand and pulled her towards the second floor of the new commercial
building of Naval, and while thereat, did then and there willfully,
unlawfully and feloniously slap her, [take] off her panty as well as his
pants and [order] her to lie down on top of cartons, [cover] her mouth
and [succeed] in having carnal knowledge of said “AAA,” to her
damage and prejudice.
CONTRARY TO LAW.4
Crim. Case No. N-2131
That on or about the 30th day of June, 2001, in the evening, in the
Municipality of Naval, Biliran Province, Philippines, and within the
jurisdiction of this Honorable Court, one “AAA,” an 11-year old lass,
after watching a billiard game in front of the new municipal building of
said municipality went to a jeep parked near the back of said building,
closed its windows and slept thereat but was awakened when herein
accused, who was then carrying a nightstick beamed his flashlight
towards her, did then and there willfully, unlawfully and feloniously by
means of force and intimidation [go] inside the vehicle and there,
[take] off her panty and his short pants and [succeed] in having carnal
knowledge [of] the said “AAA,” to her damage and prejudice.
CONTRARY TO LAW.5
Upon arraignment on December 6, 2001, appellant, assisted by
counsel de parte, entered a plea of not guilty to both charges. After
pre-trial was terminated, trial on the merits followed.
Version of the Prosecution
The first rape incident happened on May 27, 2001. At around 10:00 to
11:00 p.m., “AAA,” then an 11-year old girl, was watching television in
Antecedents a store at the public market in Naval, Biliran. When she went outside
the public market, appellant summoned her. “AAA” tried to run away,
but appellant threatened to shoot her with a slingshot. She thus
approached appellant hesitantly. When already near him, appellant
suddenly grabbed “AAA‟s” hand and dragged her to the second floor of
a newly-constructed commercial building facing the public market.
When they were already in a secluded portion, appellant undressed
“AAA,” spread her thighs, and inserted his penis into her vagina,
causing her pain and horror. Once satiated, appellant gave “AAA”
P100.00 and told her not to tell anyone about the incident or her
family will be harmed.
The second rape incident happened during the evening of June 30,
2001. At about 11:00 p.m., “AAA” was sleeping inside a jeepney
parked outside a billiard hall when appellant focused a flashlight on her Maximo Ombing (Ombing), a neighbor and friend of appellant, testified
face. He then went inside the jeepney and removed “AAA‟s” panty and that on May 27, 2001, he was at appellant‟s house from 7:00 in the
again raped her by inserting his penis into her vagina which caused evening until 12:00 midnight watching television. He further stated
“AAA” pain. that appellant was with him the whole time and did not leave the
house.
After having difficulty in urinating and experiencing pain and swelling
in her abdomen, “AAA” told her aunt, “BBB,” about the rape incidents Ending Matugas, the owner of the store where “AAA” allegedly
and pointed to appellant as her rapist. Suspecting that “AAA” was watched television the night she was raped, claimed that it was not
suffering from vaginal infection due to the rape, “BBB” brought “AAA” true that “AAA” stayed at her store to watch movies that night. Aside
to the hospital. Accordingly, “AAA” was examined and the results from the fact that she does not allow children to watch television in
thereof as stated in the medical certificate6 issued by Dr. Gabriel P. her store late at night, said store was closed at that time as she was
Edano (Dr. Edano) on July 5, 2001 are as follows: chanrob lesvi rtua llawli bra ry then on her way to Cebu.
MEDICAL CERTIFICATE
Eduardo Borrinaga, the Chief Tanod of Barangay P. Inocentes Garcia,
NAME: “AAA” stated that on June 30, 2001, he was at the billiard hall having a
drinking spree from 2:00 p.m. until 3:00 a.m. of the following day.
AGE: 11 years old However, he neither saw appellant nor any parked vehicle outside the
billiard hall.
ADDRESS: x x x, Naval, Biliran
Appellant, for his part, denied the rape charges against him. With
Nature of incident: Allegedly raped by unknown person. regard to the first rape incident, he claimed that he was at home
watching television with Ombing up to 12 midnight. Thereafter, he
Time of incident: Around 10:00-11:00 p.m. went to sleep. And as he did not leave the house that night, it was
impossible for him to have raped “AAA.” As to the second rape
Date of incident: May 27, 2001 incident, appellant averred that he was again at home on the night of
June 30, 2001.
Place of incident: Commercial building, near Land Bank Naval Branch.
Appellant contended that “AAA‟s” allegations against him were
Findings: (+) lacerated hymen at 6:00 o‟clock position. fabricated. He surmised that “AAA‟s” aunt, “CCC,” instigated the filing
of the charges since he once reported to a police officer that “CCC”
(+) Corrugated hymen. was involved in illegal drug activities after he saw her and her live-in
partner Violeto Oral (Violeto) alias “Akid” packing shabu. To bolster his
Introitus: Nulliparous claim, appellant presented the testimony of Police Superintendent
Victoriano R. Naces (P/Supt. Naces), who declared in open court that
= Admits one finger with slight pain. appellant indeed reported to him such incident during the first week of
May, 2001. Because of appellant‟s report, a surveillance on “CCC,”
Vaginal smear result: Negative for the presence of spermatozoa. Violeto and two other persons was conducted where it was confirmed
Thereafter, “AAA‟s” family reported the incident to the Department of that they were indeed involved in illegal drug activities. However,
Social Welfare and Development. Consequently, complaints were filed P/Supt. Naces did not know what happened afterwards since he was
against appellant. relieved from his post in June 2001.

Version of the Defense Ruling of the Regional Trial Court

Five witnesses, including the appellant, testified for the defense. In a Decision7 dated November 19, 2003, the RTC gave weight and
credence to “AAA‟s” testimony. Hence, it declared appellant guilty of When required to file their respective supplemental briefs,12 both
two counts of statutory rape, viz: chan roble svirtual lawlib rary parties manifested that they would just adopt the briefs they filed with
WHEREFORE, premises considered, this Court finds the accused the CA.13 And since the CA had already conceded to appellant‟s
Francasio Delfin y Suan alias „Aying‟ GUILTY in both Criminal Case No. argument in the Brief for Accused-Appellant14 that the prosecution
N-2130 and Criminal Case No. N-2131; hereby imposing upon him the failed to prove that “AAA” was 11 years old at the time of the alleged
penalty of Reclusion Perpetua for each case. rape, the matters left for this Court to consider, as argued by appellant
in the said brief, are (1) the failure of the prosecution to prove that
The accused shall pay “AAA” the amount of P50,000.00 in civil appellant used force, threat or intimidation in the commission of the
indemnity for each rape committed. crime of rape; and, (2) the alleged material inconsistencies in “AAA‟s”
testimony and her ill-motive in filing the charges.
SO ORDERED.8
Ruling of the Court of Appeals Our Ruling

On appeal, the CA held that the prosecution was not able to The appeal has no merit.
satisfactorily prove that “AAA” was under 12 years of age at the time
of the alleged rape since no independent evidence of her age such as The elements of rape under par. 1(a), Article 266-A of the RPC are
her birth certificate was presented. It thus concluded that appellant present in this case.
could not be held liable for statutory rape. However, it noted that in
Criminal Case No. N-2130, force, threat and intimidation were properly Under par. 1(a) Article 266-A of the RPC, rape is committed as
alleged in the Information as having attended the commission of the follows:
cha nro blesvi rtua llawli bra ry

crime9 and was also duly established by evidence. In view thereof, the ART. 266-A. Rape, When and How Committed. – Rape is committed –
CA held appellant liable for simple rape under par. 1(a), Article 266-A
of the Revised Penal Code (RPC). However, the existence of force, 1. By a man who shall have carnal knowledge of a woman under any
threat or intimidation was found wanting with respect to Criminal Case of the following circumstances:
No. N-2131, thus, appellant‟s acquittal in the said case.
a. Through force, threat or intimidation;
The dispositive portion of the January 27, 2009 Decision10 of the CA
reads:chan roblesv irtuallaw lib rary
xxxx
WHEREFORE, the appealed Decision dated November 19, 2003 of the “Pertinently, the elements of rape under [the above-mentioned
RTC of Naval, Biliran, is hereby AFFIRMED with MODIFICATION. provision] are the following: (1) that the offender is a man; (2) that
the offender had carnal knowledge of a woman; and, (3) that such act
In Criminal Case No. N-2130, appellant Francasio Delfin alias „Aying‟, is accomplished by using force or intimidation”15 These elements are
is found GUILTY beyond reasonable doubt of the crime of RAPE under present in this case.
Article 266-A, 1(a) of the Revised Penal Code, and is hereby sentenced
to suffer the penalty of reclusion perpetua. He is also ordered to pay “AAA‟s” testimony established that appellant, a man, had carnal
P75,000.00 as civil indemnity and P75,000.00 as moral damages. knowledge of her, a young lass. She positively identified appellant as
the one who raped her. Aside from being clear and straightforward,
Appellant is ACQUITTED of the charge in Criminal Case No. N-2131 for her recollection of the material details of her harrowing experience at
failure of the prosecution to prove his guilt beyond reasonable doubt. the hands of the appellant is consistent. Moreover, the medical
findings of Dr. Edano corroborated “AAA‟s” testimony as the same
SO ORDERED.11 showed that her hymen was lacerated at 6 o‟clock position. There is
Hence, this appeal. As earlier mentioned, appellant was acquitted in sufficient basis, therefore, to conclude that carnal knowledge in fact
Crim. Case No. N-2131. Thus, the only subject of this appeal is his took place.
conviction for simple rape in Criminal Case No. N-2130.
Further, appellant, in committing the crime used force, threat, and
intimidation. Per “AAA‟s” testimony, she was forced to approach
appellant because he threatened to shoot her with his slingshot. When
“AAA” was already near the appellant, he suddenly grabbed her and
dragged her to the second floor of a commercial building near the
market. He then took off her panty, forcefully laid her down on top of
folded cartons, spread her thighs apart and inserted his penis into her
vagina. After ravishing “AAA,” appellant threatened to kill her and her
family should she tell anyone about the incident. Verily, these satisfy
the third element, that is, that the carnal knowledge was accomplished
by using force, threat or intimidation.
In view of the foregoing, the Court sustains appellant‟s conviction for
simple rape under par. 1(a), Article 266-A of the RPC.
Minor inconsistencies in the testimony of “AAA” do not detract from
the actual fact of rape; Factual findings of the trial court on the
credibility of witness are accorded great weight and respect especially
if affirmed by the CA, as in this case.
In an attempt to discredit his accuser, appellant points to several
supposed inconsistencies in “AAA‟s” statements, to wit: (1) “AAA”
stated on separate occasions three different amounts of money, i.e.,
P40.00, P20.00, or P100.00, that the appellant allegedly gave her after
the first rape incident; and, (2) she first stated that appellant
threatened to hit her with a stone if she would not come near him, yet
at another time, she mentioned that the threat was that he would hit
her with a slingshot. Appellant avers that these inconsistencies render
the prosecution‟s evidence unreliable and insufficient to support a
conviction.
The Court is not
The CA correctly ruled on this matter when it held:chan roblesv irtuallawl ib rary
The alleged inconsistencies on matters relating to the amount that was
given to AAA after she was raped and as to whether it was a stone or a
slingshot that was used by appellant to force AAA to go near him
concern only minor and collateral matters. It has been held that where
the inconsistency is not an essential element of the crime, such
inconsistency is insignificant and cannot have any bearing on the
essential fact testified to.16
Indeed, the inconsistencies in “AAA‟s” statements are trivial matters
that do not involve the essential elements of the crime. It has been
held “that inconsistencies on matters of minor details do not detract
from the actual fact of rape.”17
Besides, said inconsistencies cannot affect “AAA‟s” credibility especially
so when the RTC and the CA have already held that her testimony was
straightforward, credible, and spontaneous. The rule is well-settled
that factual findings of the trial court regarding the credibility of
witnesses are accorded great weight and respect especially if affirmed
by the CA.18 The reason behind this is that trial courts have firsthand
account of the witnesses‟ demeanor and deportment in court during
trial.19 “The Court shall not supplant its own interpretation of the
testimonies for that of the trial judge since he is in the best position to
determine the issue of credibility”20 of witnesses being the one who
had face-to-face interaction with the same. “[I]n the absence of
misapprehension of facts or grave abuse of discretion of the court
a quo, and especially when the findings of the judge have been
adopted and affirmed by the CA, [as in this case,] the factual findings
of the trial court shall not be disturbed.”21
There is nothing sufficient to show that “AAA” was impelled by
improper motive in filing the case.
Appellant imputes improper motive on the part of “AAA” as he
surmises that her aunt “CCC” instigated her to falsely testify against
him. Appellant claims that the accusations of rape were prompted by
“CCC” who had every reason to instigate the filing of the criminal case
since he reported to the police that she was engaged in illegal drugs.
Contrary to appellant‟s claim, however, “CCC” appears to have no
knowledge of the rape incidents. “AAA” testified that prior to the filing
of the case, “AAA” and “CCC” did not speak with each other. In her
cross-examination, “AAA” was questioned about her aunt “CCC,” to
wit:chan roble svi rtual lawlib rary
persuaded. ATTY. VILLORDON:
Q: Do you have an auntie by the name of [CCC]?
A: Yes, Sir.
Q: Does she know about this rape done to you by
Aying?
A: No, Sir.
Q: You did not tell her even [if] she is your
[a]untie?
A: I did not tell her.
Q: Have you talk[ed] to [CCC] before you filed
 these cases? in CA-G.R. CR-H.C. No. 00077 finding appellant Francasio Delfin guilty
beyond reasonable doubt of the crime of simple rape and sentencing
A: No, Sir.22 him to suffer the penalty of reclusion perpetua is AFFIRMED with the
Moreover, appellant‟s claim of instigation on the part of “CCC” is not following modifications:
supported by evidence. While P/Supt. Naces was presented as witness
and testified that appellant indeed made a report about “CCC‟s” (1) appellant Francasio Delfin shall not be eligible for parole;
alleged involvement in illegal drug activities, there was no showing
that prior to the filing of the complaints, “CCC” came to know about (2) the award of moral damages is decreased from P75,000.00 to
such fact for her to harbor a grudge against appellant. Also, it was not P50,000.00;
even known if “CCC” was incarcerated due to appellant‟s report. The
claim, therefore, that “CCC” merely instigated “AAA” to claim rape (3) appellant Francasio Delfin is ORDERED to pay “AAA” the amount
against appellant is not worthy of credence. As things stand, no ill- of P30,000.00 as exemplary damages; and,
motive can be imputed upon “AAA”. “It is a settled rule that where
there is no evidence, and nothing to indicate that the principal witness (4) appellant Francasio Delfin is ORDERED to pay “AAA” interest at
for the prosecution was actuated by improper motive, the presumption the legal rate of six percent (6%) per annum on all the amounts of
is that [she] was not so actuated and [her] testimony is entitled to full damages awarded, commencing from the date of finality of this
faith and credit.”23 Resolution until fully paid.

Penalties Costs against appellant.

Article 266-B in relation to Article 266-A (1)(a) of the RPC provides SO ORDERED.
that the penalty for simple rape is reclusion perpetua. There being no
qualifying circumstances, the CA is correct in imposing the said
penalty. “It must be emphasized, however, that [appellant] shall not
be eligible for parole pursuant to Section 3 of Republic Act No. 9346
which states that „[p]ersons convicted of offenses punished
with reclusion perpetua, or whose sentences will be reduced
to reclusion perpetua, by reason of this Act, shall not be eligible for
parole under Act No. 4180, otherwise known as the Indeterminate
Sentence Law, as amended.”24

With regard to the award of civil indemnity in the amount of

P75,000.00, the same is proper and in consonance with the prevailing
policy of the Court. The award of moral damages in the amount of
P75,000.00 must however be reduced to P50,000.00 in line with
prevailing jurisprudence. In addition, exemplary damages in the
amount of P30,000.00 is awarded to the victim “AAA.”25 Prevailing
jurisprudence on simple rape likewise awards exemplary damages in
order to set a public example and to protect hapless individuals from
sexual molestation.26

Finally, all damages awarded shall earn interest at the rate of 6% per
annum from date of finality of this judgment until fully paid.27

WHEREFORE, the January 27, 2009 Decision of the Court of Appeals

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21741 January 25, 1924
AURELIA CONDE, petitioner,
vs.
PABLO RIVERA, acting provincial fiscal of Tayabas, and
FEDERICO M. UNSON, justice of the peace of Lucena,
Tayabas, respondents.
Godofredo Reyes for petitioner.
Attorney-General Villa-Real for respondents.
MALCOLM, J.:
Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas,
has been forced to respond to no less than five informations for
various crimes and misdemeanors, has appeared with her
witnesses and counsel at hearings no less than on eight different
occasions only to see the cause postponed, has twice been
required to come to the Supreme Court for protection, and now,
after the passage of more than one year from the time when the
first information was filed, seems as far away from a definite
resolution of her troubles as she was when originally charged.
Philippine organic and statutory law expressly guarantee that in
all criminal prosecutions the accused shall enjoy the right to have
a speedy trial. Aurelia Conde, like all other accused persons, has
a right to a speedy trial in order that if innocent she may go free,
and she has been deprived of that right in defiance of law.
Dismissed from her humble position, and compelled to dance
attendance on courts while investigations and trials are arbitrarily
postponed without her consent, is palpably and openly unjust to
her and a detriment to the public. By the use of reasonable
diligence, the prosecution could have settled upon the
appropriate information, could have attended to the formal
preliminary examination, and could have prepared the case for a
trial free from vexatious, capricious, and oppressive delays.
Once before, as intimidated, the petitioner had to come to us for
redress of her grievances. We thought then we had pointed out
the way for the parties. But it seems not. Once again therefore
and finally, we hope, we propose to do all in our power to assist
this poor woman to obtain justice. On the one hand has been the
petitioner, of humble station, without resources, but fortunately
assisted by a persistent lawyer, while on the other hand has been
the Government of the Philippine Islands which should be the last
to set an example of delay and oppression in the administration of
justice. The Court is thus under a moral and legal obligation to
see that these proceedings come to an end and that the accused
is discharged from the custody of the law.
We lay down the legal proposition that, where a prosecuting
officer, without good cause, secures postponements of the trial of
a defendant against his protest beyond a reasonable period of
time, as in this instance for more than a year, the accused is
entitled to relief by a proceeding in mandamus to compel a
dismissal of the information, or if he be restrained of his liberty, by
habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the
matter of Ford [1911], 160 Cal., 334; U.S. vs. Fox [1880], 3
Montana, 512. See further our previous decision in Conde vs.
Judge of First Instance, Fourteenth Judicial District, and the
Provincial Fiscal of Tayabas, No. 21236.1
The writ prayed for shall issue and the Provincial Fiscal of
Tayabas shall abstain from further attempts to prosecute the
accused pursuant to informations growing out of the facts set
forth in previous informations, and the charges now pending
before the justice of the peace of Lucena, Tayabas, are ordered
dismissed, with cost against the respondent fiscal. We append to
our order the observation that, without doubt, the Attorney-
General, being fully cognizant of the facts of record, will take such
administrative action as to him seems proper to the end that
incidents of this character may not recur. So ordered.

Araullo, C.J., Johnson, Street, Avanceña, Ostrand, Johns and

Romualdez, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-55801 August 30, 1982
LEONARDO MAGAT, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
Aniano A. Albon for petitioner.
Solicitor General Estelito P. Mendoza, Asst. Solicitor General
Eulogio Raquel-Santos and Solicitor Wilfredo D. Reyes for
respondents.
& him to his destination. So Lanigan agreed and
MELENCIO-HERRERA, J.: 1äwph ï1.ñët
This is a petition for review of the Decision of the Court of
Appeals 1 in CA- G.R. No. 23228-CR, affirming with modification the
judgment of the Court of First Instance of Zambales, Branch 1,
Olongapo City, in Criminal Case No. 4163 for Robbery convicting
petitioner-accused, Leonardo Magat, of said crime.
The evidence for the prosecution has been summed up by the
Trial Court and adopted by the Court of Appeals, as follows: 1äwphï1.ñët
James Philip Lanigan, American businessman by
profession came to Olongapo City as a tourist and
was billeted at the Admiral Royal Hotel in
Olongapo City. At about 2:00 to 3:00 o'clock in the
afternoon of July 19, 1979, Lanigan decided to
take a walk from the hotel to the US Naval Base.
Outside the main gate, he exchanged sixty dollars
($60.00) into pesos and when he got the money
equivalent of his dollars, he started to walk back
towards the Admiral Royal Hotel. He had only
walked four (4) blocks along Magsaysay Drive
when a jeep proceeded to follow alongside
Lanigan and the driver insisted that the said
American ride with him as the driver has a sister
who has a bar down the street. The driver
requested favor from the American to give away
some cards which Lanigan can, perhaps,
distribute to some of his friends. Lanigan rejected
the offer of the stranger to ride in the jeep, so he
went to a bar to avoid him and had a bottle of
beer to drink. After approximately fifteen (15)
minutes, he went out of the bar and again he
noticed that the same driver with his jeep was
waiting for him outside. The driver was insistent
that he take his ride in his jeep so he will bring
boarded the jeepney. The driver drove away
ït¢@lFº
towards Admiral Hotel but made a right turn at
Rizal Avenue into a side street. Lanigan
complained to the driver why he is going into that
street when that is not the direction of the Admiral
Royal Hotel and the driver answered that he will
get the card first at his house for distribution. The
driver later drove into a parking area in an
address which was pointed as No. 8 Fontaine St.
and he got off the jeep, followed by Lanigan who
was told to come in Lanigan was introduced to the
owner of the house who was later Identified as
Leonardo Magat y Pineda alias 'Dolphy' who told
him to sit down. While they were in the living room
Magat talked to him saying that he should be
careful in the Philippines because there are many
pick- pockets and thereafter Magat then started to
frisk him saying that he is going to make a
demonstration of how a pick-pocket operates.
Lanigan told him to get his hands out of his pocket
and he pushed Magat's hands out of and started
heading towards the door for his exit. The driver
who was later on Identified as Francisco Velasco
Brosas, immediately ran towards the door and
locked it. And thereafter, a guy made a strangled
hold on the American and the accused Magat
together with his cohort emptied the pockets of
Lanigan, consisting of eight hundred sixty
American dollars ($860.00) and the seventy
dollars which was converted into pesos, his
passport, wallet, traveller's checks, airline tickets
without his cash money and he was warned not to
say anything and not to report the matter to the
police authorities as he will be killed. The accused
even made gestures making the American believe
that he has a knife hidden in one of his pockets.
Thereafter, Lanigan was taken into another room,
made to sit down before a table and told him that
they will teach him to play black jack. He was told
that he can learn the game easily in ten minutes
but Lanigan repeatedly refused to play with them
but they kept on insisting but since he did not like
to play, the accused said that they are going to
release him, but he should not make any attempt
to report the matter to the police as they can
frame him up with the charges of rape pushing of
marijuana and other similar crimes. Lanigan
however, went inside the US Naval Base where
he reported the matter to the members of the
shore patrol and told them that he was robbed.
The military police officers from the US Naval
Base accompanied him and pointed out several
houses which are suspected in this kind of modus
operandi in the crimes of robbery committed
against American servicemen and they came up
to No. 8 Fontaine Extension where Lanigan told
the military police that it was the same house
where he was robbed. Considering that they had
no jurisdiction since it was outside the US Naval
Base, the Base police instructed the complainant
to report the matter to the Olongapo City Police
Department and it was at this juncture that a
police officer by the name of 'Danny' drove up.
Later, the complaining witness was brought to the
Olongapo City Police Department where his
statement (Exhibit 'A') was taken by Pfc. Ciriaco
Marcelino, Jr., on July 23, 1979 and the accused
Magat was Identified through his photograph
taken in the gallery. On the following day, the
complainant was again asked to come to the
police headquarters for a supplemental statement
(Exhibit 'B') wherein he Identified Francisco
Brosas y Velasco as the driver of the jeep who
brought him to the place where he was robbed. 2
Petitioner-accused, on the other hand, denied the commission of
robbery and claimed that complainant lost the money to him in a
card game. His version was synthesized by respondent Court of
Appeals thus:1äwphï1.ñët
On the other hand, the defense' evidence
discloses that in the afternoon of July 19, 1979, a
certain driver named Brosas arrived with an
American who turned out to be the herein
complainant, at Magat's residence at No. 8
Fontaine Extension, Olongapo City. Brosas told
Magat that the American was looking for a girl
whom he will pay. Magat then told Brosas to look
for a girl so that they could earn some money.
Brosas left Magat's residence to look for a girl
while complainant Lanigan waited for him in
Magat's residence.
 While they were waiting, Magat invited Lanigan to The post-arraignment proceedings were as follows: 1äw phï1.ñët

play poker/blackjack, Lanigan agreed. The two of

them sat by the table and they played six games. COURT
Magat won in five games but lost in one.
Lanigan's total loss amounted to a little over Enter a plea of not guilty in favor
P1500.00. Lanigan then told Magat that he will of the accused.
use his traveller's check since he had no more
money. Magat did not agree and refused to play
This is for immediate trial because
further with Lanigan. Magat's refusal irritated
according to the motion of the First
Lanigan. Lanigan then tried to grab the cash
Assistant City Fiscal, the
money in the possession of Magat at the time and
complainant is a tourist.
the two of them struggled for possession of the
money. In the meanwhile, Lanigan kept on
shouting that he was cheated and that he wants Are you now ready for trial?
his money back. Later, Lanigan told Magat that he
is going to cash his traveller's check at Pag-asa ATTY. BALINGIT
where he has an American acquaintance.
Lanigan, however, did not come back anymore If your Honor please, I was hired
that day. about a few minutes ago and I
was indeed surprised to be
The following day he appeared at the residence of contracted. Although I understand
Magat with a CIS agent named Rene who told the extent of the law which
Magat that a certain Captain Santos, Chief of the requires the speedy trial of this
CIS, wanted to see him in connection with case, however, if I may be given at
Lanigans complaint. In the meantime, Patrolman least one (1) hour to confer with
Marcelino also arrived at the house of Magat who my witness, I will proceed with the
allegedly told the latter that if he will return the trial.
P500.00 of the complaining American, then the
complaint against him will be settled. 3 FISCAL ANONAS

On July 26, 1979, at 3:00 o'clock in the afternoon, an Information How many witnesses do you
for Robbery was filed against Leonardo Magat, Francisco Brosas intend to present?
and four others in the Court of First Instance of Zambales, Branch
1, at Olongapo City. The case was immediately raffled and set for COURT
arraignment and trial. Only petitioner-accused was arraigned at
4:35 that same afternoon, as the others had not been How about you, Fiscal?
apprehended. Petitions-accused entered a plea of "Not Guilty."
FISCAL ANONAS
Two (2). COURT Before you could cross
examine. For cross examination.
COURT You can consult your client from
time to time. 4
How about you Atty. Balingit?
Trial proceeded and lasted up to 7:30 in the evening. The
ATTY. BALINGIT following day, trial was resumed at 8:30 o'clock in the morning
when petitioner-accused and his witness, testified on direct,
cross, and re-direct examination. At 11:35 that same morning, a
Two (2).
judgment of conviction was promulgated, sentencing the accused
to six (6) years and one (1) day to ten (10) years of prision
FISCAL ANONAS mayor, to indemnify the offended party in the amount of
P6,996.00, and to pay the costs.
I have no objection to the
conference between counsel and Petitioner-accused appealed to the Court of Appeals. Instead of
his witness but after we have filing a Brief for the People, the Office of the Solicitor General filed
already submitted our case. a Motion and Manifestation joining the accused's cause, and
recommending the reversal of the Trial Court's judgment on the
And besides, we have only twenty- ground that complainant is not a transient visitor; that said Court
four (24) hours. acted with unusual haste in the arraignment, trial, and rendition of
the judgment of conviction; and that the evidence adduced failed
ATTY. BALINGIT to prove the guilt of the accused beyond reasonable doubt.

But just only one (1) hour to confer In its Decision promulgated on August 21, 1981, the Court of
to give me the chance to defend Appeals refuted the contentions of the Office of the Solicitor
my client. General, affirmed conviction, but modified the penalty. 1äw phï1.ñët

COURT WHEREFORE, finding accused-appellant guilty

beyond reasonable doubt as principal in the crime
You can do that after the of ROBBERY as charged in the information,
prosecution presented its witness. defined by Art. 293 of the Revised Penal Code
and penalized under Art. 294, par. 5 thereof; and there
being no aggravating nor any mitigating circumstance affecting his
ATTY. BALINGIT criminal liability, thus entitling him to the imposition of the penalty in its
medium period, he is therefore hereby sentenced to an indeterminate
penalty of 2 years, 4 months and 1 day of prision correccional as the
Provided . . . minimum to 8 years of prision mayor as the maximum and to pay
costs.
 Except with the aforesaid modification, the
judgment appealed from is hereby AFFIRMED in
all other respects.
Petitioner-accused appealed by certiorari to this Court assigning
the following errors to the Court of Appeals:
1äwphï1.ñët
1. The Respondent Honorable Court of Appeals
erred in brushing aside the mute but clear import
of lack of adherence to the basic fundamental
formulation of due process whereby counsel and
client must be accorded the right to be heard i.e.,
before proceedings to commence trial ample
opportunity must be given for them to confer and
prepare for the defense.
2. The Respondent Honorable Court of Appeals
erred in not sustaining the submission for acquittal
made by the state counsel, the Honorable
Solicitor General in its Motion and Manifestation in
lieu of appellee's brief anchored upon grave and
conclusive circumstantial facts negativing
petitioner's guilt.
3. The respondent Honorable Court of Appeals
erred in merely modifying the judgment of
conviction of the petitioner based upon mere
assumptions and suspicion of guilt.
Required to comment by this Court, the Office of the Solicitor
General adopted its Motion and Manifestation filed before the
Court of Appeals and recommended the grant of the petition for
certiorari averring that the findings and conclusions of respondent
Court of Appeals are not supported by substantial evidence.
In his first assigned error, petitioner-accused claims lack of due
process because of the unusual speed with which the Trial Court
disposed of his case. The record does show that the accused
was arraigned at 4:35 P.M. on July 26, 1979. The request of
defense counsel for one hour within which to confer with his client
was deferred by the Trial Court till after the prosecution had
presented its evidence but the Court clarified that it would allow
counsel to consult his client from time to time during cross-
examination. Trial commenced thereafter and continued until 7:30
in the evening, with the prosecution resting its case. The following
day, trial was resumed, for the presentation of evidence for the
defense, at 8:30 A. M, and judgment was promulgated at 11:35
that same morning.
Applicable to this case is General Order No. 39 amending
General Order No. 12, dated September 30, 1972, which gave
Civil Courts concurrent jurisdiction with Military Tribunals over
crimes committed against tourists and transients, and mandates
that cases involving tourists be disposed of within 24 hours from
the filing of the complaint.
1äwphï1.ñët
23. Crimes where the offended party is a tourist or
a transient.
The civil court shall have concurrent jurisdiction
with the military tribunals over the said crimes,
provided that civil courts shall dispose of such
cases within 24 hours after the filing thereof by
the arresting officer. The court or tribunal that first
ït¢@lFº
assumes jurisdiction shall exercise jurisdiction to
the exclusion of all others.
Considering that explicit requirement, the Trial Court had no other
alternative but to speed up trial. That defense counsel was aware
of the prescribed time element is shown by the fact that he had
asked for only one hour within which to confer with his client
although normally he would have been entitled to at least 2 days
to prepare for trial. 5In point of fact, the Trial Court did not deny
defense counsel's request for conference with petitioner-accused.
The Trial Court merely deferred such conference till after the
prosecution had presented its witnesses. It is to be noted further that
defense counsel was not totally unprepared for trial for he was ready
with two witnesses when asked by the Court. Moreover, after the
prosecution had rested its case, trial was resumed the next day,
thereby giving the defense enough time to prepare for the
presentation of its direct evidence. Besides, notwithstanding the brief
span of trial time, rebuttal and surrebuttal were presented by the
prosecution and the defense, respectively.
The rendition of the judgment not long after the trial was
terminated is not necessarily indicative of inordinate haste. On
the contrary, Judge Regino T. Veridiano I I, the Trial Fiscal, and
the defense counsel are to be commended for their punctilious
compliance with the explicit mandate of the law. A reading of the
transcript and of the judgment rendered will also reveal that
petitioner-accused was duly and amply heard in his defense. He
was not denied procedural due process.
The submission of the State that complainant is "not a transient
visitor" for his testimony shows clearly that he has been in
Olongapo City many times for the past fifteen years" 6 is not well
taken, the exact declaration of complainant having been "a number
of times" and not "many times". And even if complainant has been in
Olongapo City a number of times, that does not make him any less a
transient, or one whose stay is "of uncertain duration" or for a "short
time", or for a "brief period" only each time. 7 There is no question
either that notwithstanding the number of times that he has been to
this country, complainant is a "tourist" or one who travels from place
to place for pleasure or culture. 8 As a "tourist" or a "transient",
complainant falls within the coverage of General Order No. 12, as
amended, supra.
We likewise find it difficult to agree with the Solicitor General's
position that the guilt of petitioner-accused has not been
established beyond reasonable doubt. Complainant was
categorical in his Identification of petitioner-accused and
emphatic as to the latter's direct and active involvement in the
robbery. Petitioner-accused's version of the occurrence does not
ring with truth. As pointed out by the Court of Appeals: 1äwphï1.ñët
Appellant advances the argument that if robbery
was his intention, then he would not have done it
in the very premises of his home. This explanation
appeared lame and weak. He did so, because he
never expected that their victim being a tourist will
have the insistence and temerity of lodging and
pushing through a complaint against him and his
cohorts for forcibly divesting him of his money. No
doubt, appellant and his confederates must have
been emboldened by the fact that even if their
victim complained but considering his unfamiliarity
with the place, it will be almost next to impossible
for him (the American victim) to trace his way
back to appellant's place and pinpoint their
Identities. In fact, the American MP's were able to
tract down his (Magat's) place only because of its
notoriety for assaults and acts as that perpetrated
against the complainant. Then too appellant and
Brosas were Identified only by their photos in the
files of the police. Both happened to be notorious
police characters having been previously involved
in a series of robbery and theft cases. They were
ït¢@lFº
readily pointed to and Identified by complainant
upon seeing their photos as among the persons
who divested him of his money on the day of the
incident in question. 9
Moreover, if as petitioner-accused testified, Lanigan was shouting at
petitioner-accused "you cheated me, give my money back" 10 it is
incredible that "after that the American suggested that he was going
to leave the place because he will cash the traveller's check
...". 11 One who has been allegedly cheated would refuse to return to
play some more.
Again, complainant had been to Olongapo City a number of times
in the past, and, therefore was not a complete stranger to the
place. He would have had more or less, an Idea where to go for
entertainment, so that petitioner-accused's allegation that
complainant was looking for a girl when brought to his place
hardly deserves credence.
In the last analysis, the issue simmers down to one of credibility.
The well established rule is that the conclusions of a Trial Court
on the question of credibility are entitled to utmost respect and
will remain undisturbed on appeal unless substantial facts, which
might affect the result of the case,, have been overlooked, which
is not the case herein. Suffice it to quote some notable
observations of the Court of Appeals on the matter of credibility
even as it refuted some of the contentions advanced by the Office
of the Solicitor General in support of the latter's bid for acquittal of
the accused. 1äwphï1.ñët
The second point raised by the state counsel is
that allegedly complainant admitted having been
strangled by his neck and yet he did not sustain
any physical injury or bodily harm as could be
gleaned from his testimony of July 26, 1979 (p. 12
of the motion and manifestation). That
complainant did not suffer any injury whatsoever
did not make his version of the incident incredible
because as the accused together with his
confederates tried to divest the complainant of his
money, the latter struggled and it was at that
juncture when complainant was choked. What
possible injury must he necessarily sustain in a
situation of that sort? Maybe only the reddening of
the portion choked which however, was no longer
visible to the naked eye after a couple of hours or
so.
The third circumstance advanced by the
Honorable State Counsel is that it was rather
incredible and absurd for one who had robbed
another to still endeavor to teach his victim how to
play a game of cards. The argument appears
plausible but not conclusive. Complainant was
brought to another room and taught the rudiments
of poker blackjack preparatory to the theory to be
set up by the defense that if the American victim
has lost his money ... it was in gambling where
cards were utilized during the game. And
secondly, to properly appease the victim and
condition his mind making him cool in the process
so that whatever he may have in mind by way of
retaliation may no longer be pursued by him. But
the victim-complainant happened to be a person
not of the type the accused thought of him to be.
In short, he was underestimated by the culprits.
Lastly, it is likewise claimed that when the
complainant first appeared before the police
officer on July 19, 1979, the day when the robbery
was committed, he allegedly told the police that 'a
jeepney driver picked him up and with the use of
flowery words was able to take his money.' On the
fourth day, however, following the incident or on
July 23, complainant in his sworn statement
stated that he was choked and strangled by two
or three persons and the accused took his money
from his pocket while they were in a house at No.
8 Fontaine Extension, Olongapo City.
The statement referred to appeared embodied in
Exhibit 'A' which was allegedly prepared by a
certain Pfc. Alberto dela Isla, the contents of
which reads as follows: 1äw phï1.ñët
This is in connection with Police
Blotter Entry No. 2387, (p. 453
dated 15 July, 1979.) Complainant
alleged that on or about 2:00 P.M.
to 3:00 P.M. July 1975, at the
above mentioned located, suspect
with intent to gain and with
 intimidation took and carted away warranted for if complainant was divested of his
his cash money amounting to money merely through the use of flowers words
$940.00 more or less. then why was there a necessity for choking him
Complainant further alleged that and holding his hands and threatening him and,
while he was walking along further, that if he did not stop then he will be killed.
Magsaysay Drive, Q.C., when a Interpreted in the light of the testimony of the
jeepney driver picked him up and complainant, it would appear that the first step
with the use of flowery words was that led into complainant's being divested of his
able to take his money were the flowery words made by Brosas to
money. Furthermore, suspect/s him that ultimately brought him to Magat's place
choked him while others were whereby, through force and intimidation the
holding his hand and at the same offenders took his money from his pocket. 12
time threatened him that if he did
not stop strangling he will be All told, we find the second and third assigned errors also without
killed. Complainant pointed the merit, and like the Trial Court and the Appellate Court, we find
person of LEONARDO MAGAT as petitioner- accused's guilt proven beyond reasonable doubt.
one of the suspects when a
picture of the said suspect was WHEREFORE, this Petition for Review is denied and the
showed to him. (Emphasis judgment of the Court of Appeals hereby affirmed.
supplied).
Costs against petitioner.
Pfc. Isla was never placed on the witness stand to
testify on the alleged report. The contents therein
SO ORDERED.
appearing therefore is decidedly hearsay . . . the
prosecution being denied of the right to cross-
examine him on the truth thereof. But what
appears confusing is the fact that when
complainant-victim made a follow-up of his
complaint with the police, since nothing appeared
to have been done in connection therewith, no
records whatsoever pertaining to his complaint
could be found. And yet here comes this alleged
police report.

But let it be assumed that complainant when

interviewed made the statement that now appears
in this Exhibit 'A'. Analyzing the said statement in
its entirety, the conclusion arrived at appeared not
 THIRD DIVISION
[G.R. No. 107211. June 28, 1996]
FRANCISCO GUERRERO, petitioner, vs. HON. COURT OF
APPEALS, (Former Special Seventh Division),
REGIONAL TRIAL COURT OF MALABON, BRANCH
72, and PEOPLE OF THE
PHILIPPINES, respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ELEMENTS
OF DOUBLE JEOPARDY.- For double jeopardy to attach,
the following elements must concur: x x x It is a settled
rule that to raise the defense of double jeopardy, the
following requisites must concur: (1) a first jeopardy must
have attached prior to the second; (2) the first jeopardy
must have been validly terminated; and (3) the second
jeopardy must be for the same offense, or the second
offense includes or is necessarily included in the offense
charged in the first information, or is an attempt to commit
the same or is a frustration thereof. And legal jeopardy
attaches only: (a) upon a valid indictment; (b) before a
competent court; (c) after arraignment; (d) a valid plea
having been entered; and (e) the case was dismissed or
otherwise terminated without the express consent of the
accused.
2. ID.; ID.; WHEN THE RIGHT TO SPEEDY TRIAL IS
DEEMED VIOLATED.-The right to speedy trial is violated
only where there is an unreasonable, vexatious and
oppressive delay without the participation or fault of the
accused, or when unjustified postponements are sought
which prolong the trial for unreasonable lengths of time.
3. ID.; ID.; SPEEDY DISPOSITION OF CASES;
CONSTRUED.- The case of Caballero vs. Alfonso,
Jr., 153, SCRA 153, 162-163 (August 21, 1987), laid down
the guidelines in determining the applicability of the
"speedy disposition" formula: "x x x '(S)peedy disposition
of cases is a relative term. Just like the constitutional
guarantee of speedy trial accorded an accused in all
criminal proceedings, speedy disposition of cases is a
flexible concept. It is consistent with delays and depends
upon the circumstances. What the Constitution prohibits
are unreasonable, arbitrary and oppressive delays which
render rights nugatory. In the determination of whether or
not the right to a speedy trial has been violated, certain
factors may be considered and balanced against each
other. These are length of delay, reason for the delay,
assertion of the right or failure to assert it, and prejudice
caused by the delay. The same factors may also be
considered in answering judicial inquiry whether or not a
person officially charged with the administration of justice
has violated the speedy disposition of cases guarantee."
4. ID.; ID.; ID.; A PARTY'S INDIVIDUAL RIGHT SHOULD
NOT PRECLUDE PEOPLE'S RIGHT TO PUBLIC
JUSTICE.- While this Court recognizes the right to speedy
disposition quite distinctly from the right to a speedy trial,
and although this Court has always zealously espoused
protection from oppressive and vexatious delays not
attributable to the party involved, at the same time, we
hold that a party's individual rights should not work against
and preclude the people's equally important right to public
justice. In the instant case, three people died as a result of
the crash of the airplane that the accused was flying. It
appears to us that the delay in the disposition of the case
prejudiced not just the accused but the people as
 well.Since the accused has completely failed to assert his
right seasonably and inasmuch as the respondent judge
was not in a position to dispose of the case on the merits
due to the absence of factual basis, we hold it proper and
equitable to give the parties fair opportunity to obtain (and
the court to dispense) substantial justice in the premises.
APPEARANCES OF COUNSEL
Benjamin C. Santos & Ofelia Calcetas-Santos Law
Offices for petitioner.
DECISION
PANGANIBAN, J.:
"Does the constitutional right to a speedy trial include the
right to a prompt disposition and judgment?" This is the
question posed before this Court in the instant petition for
review under Rule 45 seeking to set aside (a) the Decision[1] of
the Court of Appeals[2] promulgated on February 18, 1992 in
CA-G.R. SP No. 237237; and (b) the Resolution promulgated
on September 10, 1992 denying the motion for
reconsideration.
By a resolution dated November 13, 1995, the First
Division of this Court transferred this case, along with several
others, to the Third. After careful deliberation and consultation
on the petition, comment, reply, memoranda and other
submissions of the parties, this Court assigned the writing of
this Decision to the undersigned ponente.
The Facts
The antecedents are not disputed. As summarized by the
Solicitor General in his memorandum, they are as follows:[3]
"On November 16, 1971, an Information for Triple Homicide
Through Reckless Imprudence was filed against petitioner before the
Court of First Instance, Branch XXXV, Caloocan City, presided by
Judge Manuel A. Argel, and docketed as Criminal Case No. C-2073,
which reads:
'That on or about the 13th day of May, 1969, in the Municipality of
Malabon, Province of Rizal, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused being then
the pilot of non-commercial Aircraft, type Camanche PA-24-250
with registration marking PI-C515, then in-charge of, and has
complete responsibility for, the maintenance and operation of said
aircraft, without taking the necessary care and precaution to avoid
accidents or injuries to persons, and without ascertaining as to
whether the quantity of fuel in the tanks of said aircraft was
sufficient for the flight from Cuyapo, Nueva Ecija to MIA, Paraaque,
Rizal, did, then and there willfully, unlawfully and feloniously
operate, fly, pilot, maneuver and/or conduct the flight of said aircraft
from the airport at Cuyapo, Nueva Ecija with four (4) passengers on
board, and while the said aircraft was already airborne after several
minutes, the engine quitted twice indicating that there was no more
fuel, prompting the accused to make an emergency manner landing
on a fishpond which he executed in a careless, negligent and
imprudent manner in the Piper Camanche Owner's Handbook, and as
a result of the improper execution of said emergency landing, the
aircraft's landing gear collided with a dike and trees near the
fishpond in Malabon, Rizal, resulting to the fatal injuries in three (3)
passengers, namely, Cpl. Teodoro Neric, Jose Mari Garcia and
Lourdes Garcia which directly caused their deaths.
Contrary to law.
Due to several postponements, all filed by the petitioner, the
prosecution was finally able to start presenting its evidence on
September 29, 1972 after petitioner entered his pleas of 'Not Guilty.
On August 19, 1975, the prosecution finally, rested its case.
On February 7, 1978, the defense rested its case.
On March 16, 1978, the hearing was terminated and the parties were
ordered by Judge Argel to submit their respective memoranda.
On January 19, 1979, Judge Bernardo P. Pardo who ostensibly took
over as presiding judge vice Judge Argel, granted private
prosecutor's omnibus motion to file memorandum up to January 29,
1979.
On December 21, 1979, petitioner filed his memorandum.
It would appear that from the RTC of Caloocan City, Branch XXXV,
the case was subsequently, assigned to Branch CXXV presided over
by Judge Alfredo Gorgonio who apparently, did not take action
thereon.
On January 30, 1989, Court Administrator Meynardo Tiro ordered
the re-raffling of the case from the RTC of Caloocan City, Branch
CXXV to the RTC of Navotas-Malabon which, under the provisions
of B.P. 129, had jurisdiction over the case.
The case, now docketed as Criminal Case No. 7356-MN, was raffled
to presiding Judge Benjamin N. Aquino of the RTC, Navotas
Malabon, Branch 72.
On March 14,1990, Judge Aquino ordered the parties to follow-up
and complete the transcript of stenographic notes within 30 days
considering that the same was found to be incomplete.
On April 29, 1990, since the parties were not able to complete the
transcript of stenographic notes, the court ordered the retaking of the
testimonies of the witnesses.
On May 15, 1990, the private prosecutor submitted copies of the
duplicate originals of the testimonies of Eusebio Garcia and Elena
Obidosa (December 11, 1969), Celestino Nazareno (March 16,
1973), Cenen Miras (April 27, 1973), Ariston Agustin (February 10,
1977) and Francisco Guerrero (December 5 and 19, 1977). The
private prosecutor manifested that he had communicated with one of
the stenographers on record, Ms. Remedios S. Delfin, who promised
to look into her files and hopefully complete the transcription of her
stenographic notes.
On October 1, 1990, the presiding Judge set the retaking of the
witnesses testimony on October 24, 1990.
On October 24, 1990, the retaking of the testimonies was reset to
November 9, 1990 due to petitioner's failure to appear on the
scheduled hearing.
On November 7, 1990, petitioner filed a motion to dismiss on the
ground that his right to speedy trial has been violated.
On November 9, 1990, presiding Judge denied the motion to dismiss
and reset the retaking of the testimonies to November 21, 1990.
On November 16, 1990, petitioner filed a motion for reconsideration
which was denied on November 21, 1990. The presiding judge set
anew the retaking of the testimonies to December 5, 1990.
Hence, petitioner filed petition for certiorari, prohibition
and mandamus for the review of the orders of the Regional Trial
Court dated November 9, 1990 and November 20, 1990 anent
petitioner's motion to dismiss, as well as his motion for
reconsideration. The petition was anchored on the alleged violation
of petitioner's constitutional right to speedy trial.
In its decision which was promulgated on February 18, 1992, the
Honorable Court of Appeals dismissed the petition. In a resolution
dated September 10, 1992, petitioner's motion for reconsideration
was denied."
Errors Assigned
Petitioner now assigns the following errors[4] against the
respondent Court.
I.
The respondent Court of Appeals erred in not finding that the re-
hearing of the instant case will not suit the intended purpose and will
only result in untold prejudice to the petitioner.
II.
The respondent Court of Appeals erred in not ruling that the
petitioner is entitled to a dismissal of the criminal case equivalent to
an acquittal on the merits based on the violation of his right to
speedy trial resulting from the failure to render a prompt disposition
of judgment.
The First Issue: Untold Prejudice
Petitioner claims that through no fault of his, seven of the
ten witnesses who testified for the accused will no longer be
able to testify anew.
So too, three witnesses for the prosecution have died and
thus would not be able to appear during the re-hearing. And
even if all witnesses would be able to testify again, "the
passage of a long period of time spanning more than two
decades since the incident complained of will tend to confuse
or hinder than aid the accurate recall of the facts and
circumstances of the case," as follows:[5]
"(a) Capt. Ricardo B. Stohner of the Civil Aeronautics
Administration has reportedly migrated to either the U.S.A. or
Canada, after he retired from the CAA about eight (8) years
ago. Capt. Stohner's indispensable testimony as an expert witness as
well as to his personal knowledge of certain material facts as
described in Francisco Guerrero's Memorandum of 17 December
1979, crucial to the defense, is now lost to the petitioner.
(b) Eduardo V. Guerrero, a son of Francisco Guerrero, has been
undergoing psychiatric treatment for more than two years now, as he
is suffering from chronic mental illness. He is in no condition to
testify.Copies of medical certificates on Eduardo's condition were
submitted to the respondent courts as annexes to various pleadings.
(c) Rosario V. Guerrero, wife of Francisco Guerrero, was operated
on last August for tumor of the colon and is still suffering a partial
disability. She is under medical advice to avoid activities which may
cause her stress, including testifying in court. Copies of medical
certificates on Mrs. Guerrero's operation and condition were
submitted to the respondent courts as annexes to various pleadings.
(d) The whereabouts of Alberto Atanacio, Rodolfo Fontanilla, Editha
Pangilinan, and Rizal and Belen Macabole, are unknown, and despite
diligent efforts exerted by petitioner, they have not been found up to
the present."
At this point this argument is premature and at best
speculative. As to whether the witnesses for the defense
would be available at the trial, and if available, whether they
will still be in a position to recall the events that transpired in
the case more than twenty five years ago is a question of fact
which cannot be determined now. As pointed out by the
Solicitor General in his memorandum:[6]
"Contrary to petitioner's contention, the whereabouts of his witnesses
(except Rizal and Evelyn Macabole) are ascertainable should a
diligent search be made by him. This can be gleaned from the return
of the subpoena dated October 1, 1990 which forms part of the
record of the case. Eduardo Guerrero and Rosario Guerrero were
respectively served with subpoena and their alleged mental and
physical incapacity to testify should best be left to the assessment of
respondent trial court. Edith (sic) Pangilinan was notified of the
retaking and is, thus, available. Alberto Atanacio and Rodolfo
Fontanilla, on the other hand, are in Lucena City. The exact
whereabouts of the last two witnesses can be ascertained if diligent
efforts were exerted to locate them.
The alleged unavailability of the witnesses for the
prosecution should not be the concern of the petitioner at this
time. The burden of proving his guilt rests upon the
prosecution. And if the prosecution fails for any reason to
present evidence sufficient to show his guilt beyond
reasonable doubt, he will be acquitted.
x x x The burden of proof rests upon the prosecution and unless the
State succeeds in proving his guilt, the presumption of innocence in
favor of the accused-appellant applies. The conscience must be
satisfied that on the accused-appellant could be laid the responsibility
of the offense charged.[7]
"x x x [C]ourts must exert utmost scrupulousness in evaluating the
evidence of the prosecution for it is elementary that the conviction of
an accused must rest on the strength of the prosecution and not on
the weakness of the defense (People vs. Cruz, 215 SCRA 339
[1992]). The prosecution must overcome the constitutional
presumption of innocence by proof beyond reasonable doubt;
otherwise, the acquittal of the accused is ineluctably demanded. x x
x[8]
x x x It is safely entrenched in our jurisprudence that unless the
prosecution discharges its burden to prove the guilt of an accused
beyond reasonable doubt, the latter need not even offer evidence in
his behalf.Acquittal then of the accused-appellant is in order.[9]
On this matter, the respondent Court,[10] citing the assailed
order of the trial court argues that there are really only two
witnesses of the prosecution whose testimonies need to be
retaken and the rehearing should not really present a
monumental problem:
"With only two (2) witnesses of the prosecution to be presented,
coupled with a promise of expeditiousness by respondent Judge, the
Court is of the view that petitioner's misgivings are rather
exaggerated.And as to his expressed fear that his own witnesses for
the defense can no longer testify 'in the same manner as before, the
same Order well and truly states in adequate refutation that-
x x x the fear that the witnesses to the incident which occurred in
1969 may no longer have the same perception of what they saw and,
therefore, would not be able to testify in Court in the same manner
they originally testified is not the concern of the defense but of the
prosecution. If the prosecution witnesses cannot give convincing
testimony in the retaking of their testimony, that is the worry of the
prosecution.It is not even unfair to the accused if his witnesses
cannot testify in the same convincing manner that they testified
before as long as the prosecution witnesses are
convincing. Everything in a criminal prosecution should be
interpreted liberally in favor of the accused and strictly against the
state. x x x
Anent petitioner's contention that the re-hearing would
place him in double jeopardy, suffice it to say that there has
been no termination of the criminal prosecution - i.e. of that
"first jeopardy." For double jeopardy to attach, the following
elements must concur:
x x x It is a settled rule that to raise the defense of double jeopardy,
the following requisites must concur: (1) a first jeopardy must have
attached prior to the second; (2) the first jeopardy must have been
validly terminated; and (3) the second jeopardy must be for the same
offense, or the second offense includes or is necessarily included in
the offense charged in the first information, or is an attempt to
commit the same or is a frustration thereof (citations omitted).
And legal jeopardy attaches only: (a) upon a valid indictment; (b)
before a competent court; (c ) after arraignment; (d) a valid plea
having been entered; and (e) the case was dismissed or otherwise
terminated without the express consent of the accused (citation
omitted).[11]
In the present case, there has not even been
a first jeopardy, since the fourth element - dismissal or
termination of the case without the express consent of the
accused - is not present.Moreover, measured against the
aforequoted standard, the retaking of testimonies cannot in
any wise be deemed a second jeopardy. Hence, it is beyond
dispute that petitioner's claim of double jeopardy is utterly
without basis.
The Second Issue: Speedy Trial and Speedy Disposition
True, indeed, the 1987 Constitution provides the right not
only to a speedy trial but also to a speedy judgment after trial
when in Section 16, Article III, it provides:
"All persons shall have the right to a speedy disposition of their cases
before all judicial, quasi-judicial or administrative bodies."
Hence, the Constitution mandates dispatch not only in the
trial stage but also in the disposition thereof, warranting
dismissals in case of violations thereof without the fault of the
party concerned, not just the accused.
In the recent case of People vs. Leviste,[12] this Court
citing Gonzales vs. Sandiganbayan[13] and People vs.
[14]
Tampal, reiterated the ruling that the right to speedy trial is
violated only where there is an unreasonable, vexatious and
oppressive delay without the participation or fault of the
accused, or when unjustified postponements are sought which
prolong the trial for unreasonable lengths of time.
On the other hand, the case of Caballero vs. Alfonso,
Jr.,[15] laid down the guidelines in determining the applicability
of the speedy disposition formula:
x x x (S)peedy disposition of cases is a relative term. Just like the
constitutional guarantee of speedy trial accorded an accused in all
criminal proceedings, speedy disposition of cases is a flexible
concept. It is consistent with delays and depends upon the
circumstances. What the Constitution prohibits are unreasonable,
arbitrary and oppressive delays which render rights nugatory.
In the determination of whether or not the right to a speedy trial has
been violated, certain factors may be considered and balanced
against each other. These are length of delay, reason for the delay,
assertion of the right or failure to assert it, and prejudice caused by
the delay. The same factors may also be considered in answering
judicial inquiry whether or not a person officially charged with the
administration of justice has violated the speedy disposition of cases
guarantee.
In the case before us, the petitioner merely sat and waited
after the case was submitted for resolution in 1979. It was only
in 1989 when the case below was re-raffled from the RTC of
Caloocan City to the RTC of Navotas-Malabon and only after
respondent trial judge of the latter court ordered on March 14,
1990 the parties to follow-up and complete the transcript of
stenographic notes that matters started to get moving towards
a resolution of the case. More importantly, it was only after the
new trial judge reset the retaking of the testimonies to
November 9, 1990 because of petitioner's absence during the
original setting on October 24, 1990 that the accused suddenly
became zealous of safeguarding his right to speedy trial and
disposition.
While it may be said that it was not petitioner's fault that
the stenographic notes of the testimonies of the witnesses
were not transcribed, yet neither was it the prosecution's. The
respondent trial judge can hardly be faulted either because he
could not have rendered the decision without the transcripts in
question. Let it be remembered that he was not the judge who
conducted the trial and hence he would not have had sufficient
basis to make a disposition in the absence of the said
transcripts. As respondent Court of Appeals noted:
"Indeed, it can be gleaned from the pleadings on file that the case
was assigned to respondent Judge only in late 1989 or early 1990,
and that he took prompt action thereon by setting the case for
retaking of testimonies, obviously as a prelude to judgment. The case
then was finally making progress toward termination. For such
dispatch and diligence, respondent Judge hardly deserves
condemnation. Petitioner also faults the prosecution for its failure to
follow up the status of the case.
As regards the other judges to whom the case was
assigned prior to 1989, the accused himself could not pinpoint
the cause of the problem:[16]
"2) Reason for the delay - No one knows why the Presiding Judge
(Manuel A. Argel) of the respondent court who heard the trial did not
render a decision during his tenure. No one knows either why
another former Presiding Judge (Alfredo Gorgonio) failed to turn
over the case to the Malabon court during the Judiciary
Reorganization under B.P. Blg. 129.
It appears later on that the case became a victim of neglect and
languished in the court docket. Not surprisingly, since the risk of
such loss through neglect and other causes grew with each passing
year, part of the records and several transcripts were lost in the time
the case lay unattended. Before being finally assigned to the
respondent trial court, the case was shuttled from court to court
through various endorsements of Executive Judges and the Court
Administrator of the Supreme Court as a result of the confusion as to
which court had territorial jurisdiction over it."
In the present case, there is no question that petitioner
raised the violation against his own right to speedy disposition
only when the respondent trial judge reset the case for
rehearing.It is fair to assume that he would have just continued
to sleep on his right- a situation amounting to laches - had the
respondent judge not taken the initiative of determining the
non-completion of the records and of ordering the remedy
precisely so he could dispose of the case. The matter could
have taken a different dimension if during all those ten years
between 1979 when accused filed his memorandum and 1989
when the case was re-raffled, the accused showed signs of
asserting his right which was granted him in 1987 when the
new constitution took effect,[17] or at least made some overt act
(like a motion for early disposition or a motion to compel the
stenographer to transcribe stenographic notes) that he was not
waiving it. As it is, his silence would have to be interpreted as
a waiver of such right.
While this Court recognizes the night to speedy
disposition quite distinctly from the right to a speedy trial, and
although this Court has always zealously espoused protection
from oppressive and vexatious delays not attributable to the
party involved, at the same time, we hold that a party's
individual rights should not work against and preclude the
people's equally important right to public justice. In the instant
case, three people died as a result of the crash of the airplane
that the accused was flying. It appears to us that the delay in
the disposition of the case prejudiced not just the accused but
the people as well. Since the accused has completely failed to
assert his right seasonably and inasmuch as the respondent
judge was not in a position to dispose of the case on the
merits due to the absence of factual basis, we hold it proper
and equitable to give the parties fair opportunity to obtain (and
the court to dispense) substantial justice in the premises.
WHEREFORE, the petition is DENIED. The respondent
trial court is directed to proceed with judicious dispatch in the
re-taking of testimonies and in concluding the case in
accordance with law.
SO ORDERED.
 EN BANC
[G.R. No. 149453. April 1, 2003]
PEOPLE OF THE PHILIPPINES, THE SECRETARY OF
JUSTICE, DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, CHIEF STATE
PROSECUTOR JOVENCITO ZUO, STATE
PROSECUTORS PETER L. ONG and RUBEN A.
ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR
CONRADO M. JAMOLIN and CITY PROSECUTOR
OF QUEZON CITY CLARO ARELLANO, petitioners,
vs. PANFILO M. LACSON, respondent.
RESOLUTION
CALLEJO, SR., J.:
Before the Court is the petitioners Motion for
Reconsideration[1] of the Resolution[2] dated May 28, 2002,
remanding this case to the Regional Trial Court (RTC) of
Quezon City, Branch 81, for the determination of several
factual issues relative to the application of Section 8 of Rule
117 of the Revised Rules of Criminal Procedure on the
dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689
filed against the respondent and his co-accused with the said
court. In the aforesaid criminal cases, the respondent and his
co-accused were charged with multiple murder for the
shooting and killing of eleven male persons identified as
Manuel Montero, a former Corporal of the Philippine Army,
Rolando Siplon, Sherwin Abalora, who was 16 years old, Ray
Abalora, who was 19 years old, Joel Amora, Jevy Redillas,
Meleubren Sorronda, who was 14 years old,[3] Pacifico
Montero, Jr., of the 44th Infantry Batallion of the Philippine
Army, Welbor Elcamel, SPO1 Carlito Alap-ap of the
Zamboanga PNP, and Alex Neri, former Corporal of the 44th
Infantry Batallion of the Philippine Army, bandied as members
of the Kuratong Baleleng Gang. The respondent opposed
petitioners motion for reconsideration.[4]
The Court ruled in the Resolution sought to be
reconsidered that the provisional dismissal of Criminal Cases
Nos. Q-99-81679 to Q-99-81689 were with the express
consent of the respondent as he himself moved for said
provisional dismissal when he filed his motion for judicial
determination of probable cause and for examination of
witnesses. The Court also held therein that although Section 8,
Rule 117 of the Revised Rules of Criminal Procedure could be
given retroactive effect, there is still a need to determine
whether the requirements for its application are attendant. The
trial court was thus directed to resolve the following:
... (1) whether the provisional dismissal of the cases had the express
consent of the accused; (2) whether it was ordered by the court after
notice to the offended party; (3) whether the 2-year period to revive
it has already lapsed; (4) whether there is any justification for the
filing of the cases beyond the 2-year period; (5) whether notices to
the offended parties were given before the cases of respondent
Lacson were dismissed by then Judge Agnir; (6) whether there were
affidavits of desistance executed by the relatives of the three (3)
other victims; (7) whether the multiple murder cases against
respondent Lacson are being revived within or beyond the 2-year
bar.
The Court further held that the reckoning date of the two-
year bar had to be first determined whether it shall be from the
date of the order of then Judge Agnir, Jr. dismissing the cases,
or from the dates of receipt thereof by the various offended
parties, or from the date of effectivity of the new
rule. According to the Court, if the cases were revived only
after the two-year bar, the State must be given the opportunity
to justify its failure to comply with the said time-bar. It
emphasized that the new rule fixes a time-bar to penalize the
State for its inexcusable delay in prosecuting cases already
filed in court. However, the State is not precluded from
presenting compelling reasons to justify the revival of cases
beyond the two-year bar.
In support of their Motion for Reconsideration, the
petitioners contend that (a) Section 8, Rule 117 of the Revised
Rules of Criminal Procedure is not applicable to Criminal
Cases Nos. Q-99-81679 to Q-99-81689; and (b) the time-bar
in said rule should not be applied retroactively.
The Court shall resolve the issues seriatim.
I. SECTION 8, RULE 117 OF THE REVISED RULES OF
CRIMINAL PROCEDURE IS NOT APPLICABLE TO CRIMINAL
CASES NOS. Q-99-81679 TO Q-99-81689.
The petitioners aver that Section 8, Rule 117 of the
Revised Rules of Criminal Procedure is not applicable to
Criminal Cases Nos. Q-99-81679 to Q-99-81689 because the
essential requirements for its application were not present
when Judge Agnir, Jr., issued his resolution of March 29,
1999. Disagreeing with the ruling of the Court, the petitioners
maintain that the respondent did not give his express consent
to the dismissal by Judge Agnir, Jr., of Criminal Cases Nos. Q-
99-81679 to Q-99-81689. The respondent allegedly admitted
in his pleadings filed with the Court of Appeals and during the
hearing thereat that he did not file any motion to dismiss said
cases, or even agree to a provisional dismissal
thereof. Moreover, the heirs of the victims were allegedly not
given prior notices of the dismissal of the said cases by Judge
Agnir, Jr. According to the petitioners, the respondents
express consent to the provisional dismissal of the cases and
the notice to all the heirs of the victims of the respondents
motion and the hearing thereon are conditions sine qua non to
the application of the time-bar in the second paragraph of the
new rule.
The petitioners further submit that it is not necessary that
the case be remanded to the RTC to determine whether
private complainants were notified of the March 22, 1999
hearing on the respondents motion for judicial determination of
the existence of probable cause. The records allegedly
indicate clearly that only the handling city prosecutor was
furnished a copy of the notice of hearing on said motion. There
is allegedly no evidence that private prosecutor Atty. Godwin
Valdez was properly retained and authorized by all the private
complainants to represent them at said hearing. It is their
contention that Atty. Valdez merely identified the purported
affidavits of desistance and that he did not confirm the truth of
the allegations therein.
The respondent, on the other hand, insists that, as found
by the Court in its Resolution and Judge Agnir, Jr. in his
resolution, the respondent himself moved for the provisional
dismissal of the criminal cases. He cites the resolution of
Judge Agnir, Jr. stating that the respondent and the other
accused filed separate but identical motions for the dismissal
of the criminal cases should the trial court find no probable
cause for the issuance of warrants of arrest against them.
The respondent further asserts that the heirs of the
victims, through the public and private prosecutors, were duly
notified of said motion and the hearing thereof. He contends
that it was sufficient that the public prosecutor was present
during the March 22, 1999 hearing on the motion for judicial
determination of the existence of probable cause because
criminal actions are always prosecuted in the name of the
People, and the private complainants merely prosecute the
civil aspect thereof.
The Court has reviewed the records and has found the
contention of the petitioners meritorious.
 Section 8, Rule 117 of the Revised Rules of Criminal
Procedure reads:
Sec. 8. Provisional dismissal. A case shall not be provisionally
dismissed except with the express consent of the accused and with
notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment
not exceeding six (6) years or a fine of any amount, or both, shall
become permanent one (1) year after issuance of the order without
the case having been revived. With respect to offenses punishable by
imprisonment of more than six (6) years, their provisional dismissal
shall become permanent two (2) years after issuance of the order
without the case having been revived.
Having invoked said rule before the petitioners-panel of
prosecutors and before the Court of Appeals, the respondent
is burdened to establish the essential requisites of the first
paragraph thereof, namely:
1. the prosecution with the express conformity of the accused or the
accused moves for a provisional (sin perjuicio) dismissal of the case;
or both the prosecution and the accused move for a provisional
dismissal of the case;
2. the offended party is notified of the motion for a provisional
dismissal of the case;
3. the court issues an order granting the motion and dismissing the
case provisionally;
4. the public prosecutor is served with a copy of the order of
provisional dismissal of the case.
The foregoing requirements are conditions sine qua
non to the application of the time-bar in the second paragraph
of the new rule. The raison d etre for the requirement of the
express consent of the accused to a provisional dismissal of a
criminal case is to bar him from subsequently asserting that
the revival of the criminal case will place him in double
jeopardy for the same offense or for an offense necessarily
included therein.[5]
Although the second paragraph of the new rule states that
the order of dismissal shall become permanent one year after
the issuance thereof without the case having been revived, the
provision should be construed to mean that the order of
dismissal shall become permanent one year after service of
the order of dismissal on the public prosecutor who has control
of the prosecution[6] without the criminal case having been
revived. The public prosecutor cannot be expected to comply
with the timeline unless he is served with a copy of the order of
dismissal.
Express consent to a provisional dismissal is given
either viva voce or in writing. It is a positive, direct,
unequivocal consent requiring no inference or implication to
supply its meaning.[7]Where the accused writes on the motion
of a prosecutor for a provisional dismissal of the case No
objection or With my conformity, the writing amounts to
express consent of the accused to a provisional dismissal of
the case.[8] The mere inaction or silence of the accused to a
motion for a provisional dismissal of the case[9] or his failure to
object to a provisional dismissal[10]does not amount to express
consent.
A motion of the accused for a provisional dismissal of a
case is an express consent to such provisional dismissal.[11] If
a criminal case is provisionally dismissed with the express
consent of the accused, the case may be revived only within
the periods provided in the new rule. On the other hand, if a
criminal case is provisionally dismissed without the express
consent of the accused or over his objection, the new rule
would not apply. The case may be revived or refiled even
beyond the prescribed periods subject to the right of the
accused to oppose the same on the ground of double
jeopardy[12] or that such revival or refiling is barred by the
statute of limitations.[13]
The case may be revived by the State within the time-bar
either by the refiling of the Information or by the filing of a new
Information for the same offense or an offense necessarily
included therein. There would be no need of a new preliminary
investigation.[14] However, in a case wherein after the
provisional dismissal of a criminal case, the original witnesses
of the prosecution or some of them may have recanted their
testimonies or may have died or may no longer be available
and new witnesses for the State have emerged, a new
preliminary investigation[15] must be conducted before an
Information is refiled or a new Information is filed. A new
preliminary investigation is also required if aside from the
original accused, other persons are charged under a new
criminal complaint for the same offense or necessarily
included therein; or if under a new criminal complaint, the
original charge has been upgraded; or if under a new criminal
complaint, the criminal liability of the accused is upgraded from
that as an accessory to that as a principal. The accused must
be accorded the right to submit counter-affidavits and
evidence. After all, the fiscal is not called by the Rules of Court
to wait in ambush; the role of a fiscal is not mainly to prosecute
but essentially to do justice to every man and to assist the
court in dispensing that justice.[16]
In this case, the respondent has failed to prove that the
first and second requisites of the first paragraph of the new
rule were present when Judge Agnir, Jr. dismissed Criminal
Cases Nos. Q-99-81679 to Q-99-81689. Irrefragably, the
prosecution did not file any motion for the provisional dismissal
of the said criminal cases. For his part, the respondent merely
filed a motion for judicial determination of probable cause and
for examination of prosecution witnesses alleging that under
Article III, Section 2 of the Constitution and the decision of this
Court in Allado v. Diokno,[17] among other cases, there was a
need for the trial court to conduct a personal determination of
probable cause for the issuance of a warrant of arrest against
respondent and to have the prosecutions witnesses
summoned before the court for its examination. The
respondent contended therein that until after the trial court
shall have personally determined the presence of probable
cause, no warrant of arrest should be issued against the
respondent and if one had already been issued, the warrant
should be recalled by the trial court. He then prayed therein
that:
1) a judicial determination of probable cause pursuant to Section 2,
Article III of the Constitution be conducted by this Honorable Court,
and for this purpose, an order be issued directing the prosecution to
present the private complainants and their witnesses at a hearing
scheduled therefor; and
2) warrants for the arrest of the accused-movants be withheld, or, if
issued, recalled in the meantime until the resolution of this incident.
Other equitable reliefs are also prayed for.[18]
The respondent did not pray for the dismissal, provisional
or otherwise, of Criminal Cases Nos. Q-99-81679 to Q-99-
81689. Neither did he ever agree, impliedly or expressly, to a
mere provisional dismissal of the cases. In fact, in his reply
filed with the Court of Appeals, respondent emphasized that:
... An examination of the Motion for Judicial Determination of
Probable Cause and for Examination of Prosecution Witnesses filed
by the petitioner and his other co-accused in the said criminal cases
would show that the petitioner did not pray for the dismissal of the
case. On the contrary, the reliefs prayed for therein by the petitioner
are: (1) a judicial determination of probable cause pursuant to
Section 2, Article III of the Constitution; and (2) that warrants for
the arrest of the accused be withheld, or if issued, recalled in the
meantime until the resolution of the motion. It cannot be said,
therefore, that the dismissal of the case was made with the consent of
the petitioner. A copy of the aforesaid motion is hereto attached and
made integral part hereof as Annex A.[19]
During the hearing in the Court of Appeals on July 31,
2001, the respondent, through counsel, categorically,
unequivocally, and definitely declared that he did not file any
motion to dismiss the criminal cases nor did he agree to a
provisional dismissal thereof, thus:
JUSTICE SALONGA:
And it is your stand that the dismissal made by the
Court was provisional in nature?
ATTY. FORTUN:
It was in (sic) that the accused did not ask for
it. What they wanted at the onset was simply
a judicial determination of probable cause
for warrants of arrest issued. Then Judge
Agnir, upon the presentation by the parties of
their witnesses, particularly those who had
withdrawn their affidavits, made one further
conclusion that not only was this case lacking in
probable cause for purposes of the issuance of
an arrest warrant but also it did not justify
proceeding to trial.
JUSTICE SALONGA:
And it is expressly provided under Section 8 that a
case shall not be provisionally dismissed except
when it is with the express conformity of the
accused.
ATTY. FORTUN:
That is correct, Your Honor.
JUSTICE SALONGA:
And with notice to the offended party.
ATTY. FORTUN:
That is correct, Your Honor.
JUSTICE SALONGA:
Was there an express conformity on the part of the
accused?
ATTY. FORTUN:
There was none, Your Honor. We were not asked
to sign any order, or any statement, which
would normally be required by the Court on
pre-trial or on other matters, including other
provisional dismissal. My very limited practice
in criminal courts, Your Honor, had taught me
that a judge must be very careful on this matter
of provisional dismissal. In fact they ask the
accused to come forward, and the judge himself
or herself explains the implications of a
provisional dismissal. Pumapayag ka ba
dito. Puwede bang pumirma ka?
JUSTICE ROSARIO:
You were present during the proceedings?
ATTY. FORTUN:
Yes, Your Honor.
JUSTICE ROSARIO:
You represented the petitioner in this case?
ATTY. FORTUN:
That is correct, Your Honor. And there was
nothing of that sort which the good Judge
Agnir, who is most knowledgeable in
criminal law, had done in respect of
provisional dismissal or the matter of Mr.
Lacson agreeing to the provisional dismissal
of the case.
JUSTICE GUERRERO:
Now, you filed a motion, the other accused then filed
a motion for a judicial determination of probable
cause?
ATTY. FORTUN:
Yes, Your Honor.
JUSTICE GUERRERO:
Did you make any alternative prayer in your motion
that if there is no probable cause what should
the Court do?
ATTY. FORTUN:
That the arrest warrants only be withheld. That
was the only prayer that we asked. In fact, I
have a copy of that particular motion, and if I
may read my prayer before the Court, it said:
Wherefore, it is respectfully prayed that (1) a
judicial determination of probable cause
pursuant to Section 2, Article III of the
Constitution be conducted, and for this purpose,
an order be issued directing the prosecution to
present the private complainants and their
witnesses at the scheduled hearing for that
purpose; and (2) the warrants for the arrest of
the accused be withheld, or, if issued, recalled
in the meantime until resolution of this incident.
JUSTICE GUERRERO:
There is no general prayer for any further relief?
ATTY. FORTUN:
There is but it simply says other equitable reliefs are
prayed for.
JUSTICE GUERRERO:
Dont you surmise Judge Agnir, now a member of
this Court, precisely addressed your prayer for
just and equitable relief to dismiss the case
because what would be the net effect of a
situation where there is no warrant of arrest
being issued without dismissing the case?
ATTY. FORTUN:
Yes, Your Honor. I will not second say (sic) yes
the Good Justice, but what is plain is we did
not agree to the provisional dismissal,
neither were we asked to sign any assent to
the provisional dismissal.
JUSTICE GUERRERO:
If you did not agree to the provisional dismissal did
you not file any motion for reconsideration of the
order of Judge Agnir that the case should be
dismissed?
ATTY. FORTUN:
I did not, Your Honor, because I knew fully well
at that time that my client had already been
arraigned, and the arraignment was valid as
far as I was concerned. So, the dismissal,
 Your Honor, by Judge Agnir operated to
benefit me, and therefore I did not take any
further step in addition to rocking the boat
or clarifying the matter further because it
probably could prejudice the interest of my
client.
JUSTICE GUERRERO:
Continue.[20]
In his memorandum in lieu of the oral argument filed with
the Court of Appeals, the respondent declared in no uncertain
terms that:
Soon thereafter, the SC in early 1999 rendered a decision declaring
the Sandiganbayan without jurisdiction over the cases. The records
were remanded to the QC RTC: Upon raffle, the case was assigned
to Branch 81. Petitioner and the others promptly filed a motion for
judicial determination of probable cause (Annex B). He asked that
warrants for his arrest not be issued. He did not move for the
dismissal of the Informations, contrary to respondent OSGs
claim.[21]
The respondents admissions made in the course of the
proceedings in the Court of Appeals are binding and
conclusive on him. The respondent is barred from repudiating
his admissions absent evidence of palpable mistake in making
such admissions.[22]
To apply the new rule in Criminal Cases Nos. Q-99-81679
to Q-99-81689 would be to add to or make exceptions from the
new rule which are not expressly or impliedly included
therein.This the Court cannot and should not do.[23]
The Court also agrees with the petitioners contention that
no notice of any motion for the provisional dismissal of
Criminal Cases Nos. Q-99-81679 to Q-99-81689 or of the
hearing thereon was served on the heirs of the victims at least
three days before said hearing as mandated by Rule 15,
Section 4 of the Rules of Court. It must be borne in mind that
in crimes involving private interests, the new rule requires that
the offended party or parties or the heirs of the victims must be
given adequate a priori notice of any motion for the provisional
dismissal of the criminal case. Such notice may be served on
the offended party or the heirs of the victim through the private
prosecutor, if there is one, or through the public prosecutor
who in turn must relay the notice to the offended party or the
heirs of the victim to enable them to confer with him before the
hearing or appear in court during the hearing. The proof of
such service must be shown during the hearing on the motion,
otherwise, the requirement of the new rule will become
illusory. Such notice will enable the offended party or the heirs
of the victim the opportunity to seasonably and effectively
comment on or object to the motion on valid grounds,
including: (a) the collusion between the prosecution and the
accused for the provisional dismissal of a criminal case
thereby depriving the State of its right to due process; (b)
attempts to make witnesses unavailable; or (c) the provisional
dismissal of the case with the consequent release of the
accused from detention would enable him to threaten and kill
the offended party or the other prosecution witnesses or flee
from Philippine jurisdiction, provide opportunity for the
destruction or loss of the prosecutions physical and other
evidence and prejudice the rights of the offended party to
recover on the civil liability of the accused by his concealment
or furtive disposition of his property or the consequent lifting of
the writ of preliminary attachment against his property.
In the case at bar, even if the respondents motion for a
determination of probable cause and examination of witnesses
may be considered for the nonce as his motion for a
provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-
99-81689, however, the heirs of the victims were not notified
thereof prior to the hearing on said motion on March 22,
1999. It must be stressed that the respondent filed his motion
only on March 17, 1999 and set it for hearing on March 22,
1999 or barely five days from the filing thereof. Although the
public prosecutor was served with a copy of the motion, the
records do not show that notices thereof were separately given
to the heirs of the victims or that subpoenae were issued to
and received by them, including those who executed their
affidavits of desistance who were residents of Dipolog City or
Pian, Zamboanga del Norte or Palompon, Leyte.[24] There is as
well no proof in the records that the public prosecutor notified
the heirs of the victims of said motion or of the hearing thereof
on March 22, 1999. Although Atty. Valdez entered his
appearance as private prosecutor,[25]he did so only for some
but not all the close kins of the victims, namely, Nenita Alap-
ap, Imelda Montero, Margarita Redillas, Rufino Siplon,
Carmelita Elcamel, Myrna Abalora, and Leonora Amora who
(except for Rufino Siplon)[26] executed their respective
affidavits of desistance.[27] There was no appearance for the
heirs of Alex Neri, Pacifico Montero, Jr., and Meleubren
Sorronda. There is no proof on record that all the heirs of the
victims were served with copies of the resolution of Judge
Agnir, Jr. dismissing the said cases. In fine, there never was
any attempt on the part of the trial court, the public prosecutor
and/or the private prosecutor to notify all the heirs of the
victims of the respondents motion and the hearing thereon and
of the resolution of Judge Agnir, Jr. dismissing said cases. The
said heirs were thus deprived of their right to be heard on the
respondents motion and to protect their interests either in the
trial court or in the appellate court.
Since the conditions sine qua non for the application of
the new rule were not present when Judge Agnir, Jr. issued
his resolution, the State is not barred by the time limit set forth
in the second paragraph of Section 8 of Rule 117 of the
Revised Rules of Criminal Procedure. The State can thus
revive or refile Criminal Cases Nos. Q-99-81679 to Q-99-
81689 or file new Informations for multiple murder against the
respondent.
II. THE TIME-BAR IN SECTION 8, RULE 117 OF THE
REVISED RULES OF CRIMINAL PROCEDURE
SHOULD NOT BE APPLIED RETROACTIVELY.
The petitioners contend that even on the assumption that
the respondent expressly consented to a provisional dismissal
of Criminal Cases Nos. Q-99-81679 to Q-99-81689 and all the
heirs of the victims were notified of the respondents motion
before the hearing thereon and were served with copies of the
resolution of Judge Agnir, Jr. dismissing the eleven cases, the
two-year bar in Section 8 of Rule 117 of the Revised Rules of
Criminal Procedure should be applied prospectively and not
retroactively against the State. To apply the time limit
retroactively to the criminal cases against the respondent and
his co-accused would violate the right of the People to due
process, and unduly impair, reduce, and diminish the States
substantive right to prosecute the accused for multiple
murder. They posit that under Article 90 of the Revised Penal
Code, the State had twenty years within which to file the
criminal complaints against the accused. However, under the
new rule, the State only had two years from notice of the
public prosecutor of the order of dismissal of Criminal Cases
Nos. Q-99-81679 to Q-99-81689 within which to revive the
said cases. When the new rule took effect on December 1,
2000, the State only had one year and three months within
which to revive the cases or refile the Informations. The period
for the State to charge respondent for multiple murder under
Article 90 of the Revised Penal Code was considerably and
arbitrarily reduced. They submit that in case of conflict
between the Revised Penal Code and the new rule, the former
should prevail. They also insist that the State had consistently
relied on the prescriptive periods under Article 90 of the
Revised Penal Code. It was not accorded a fair warning that it
would forever be barred beyond the two-year period by a
retroactive application of the new rule.[28] Petitioners thus pray
to the Court to set aside its Resolution of May 28, 2002.
For his part, the respondent asserts that the new rule
under Section 8 of Rule 117 of the Revised Rules of Criminal
Procedure may be applied retroactively since there is no
substantive right of the State that may be impaired by its
application to the criminal cases in question since [t]he States
witnesses were ready, willing and able to provide their
testimony but the prosecution failed to act on these cases until
it became politically expedient in April 2001 for them to do
so.[29] According to the respondent, penal laws, either
procedural or substantive, may be retroactively applied so long
as they favor the accused.[30] He asserts that the two-year
period commenced to run on March 29, 1999 and lapsed two
years thereafter was more than reasonable opportunity for the
State to fairly indict him.[31] In any event, the State is given the
right under the Courts assailed Resolution to justify the filing of
the Information in Criminal Cases Nos. 01-101102 to 01-
101112 beyond the time-bar under the new rule.
The respondent insists that Section 8 of Rule 117 of the
Revised Rules of Criminal Procedure does not broaden the
substantive right of double jeopardy to the prejudice of the
State because the prohibition against the revival of the cases
within the one-year or two-year periods provided therein is a
legal concept distinct from the prohibition against the revival of
a provisionally dismissed case within the periods stated in
Section 8 of Rule 117. Moreover, he claims that the effects of
a provisional dismissal under said rule do not modify or negate
the operation of the prescriptive period under Article 90 of the
Revised Penal Code. Prescription under the Revised Penal
Code simply becomes irrelevant upon the application of
Section 8, Rule 117 because a complaint or information has
already been filed against the accused, which filing tolls the
running of the prescriptive period under Article 90.[32]
The Court agrees with the respondent that the new rule is
not a statute of limitations. Statutes of limitations are construed
as acts of grace, and a surrender by the sovereign of its right
to prosecute or of its right to prosecute at its discretion. Such
statutes are considered as equivalent to acts of amnesty
founded on the liberal theory that prosecutions should not be
allowed to ferment endlessly in the files of the government to
explode only after witnesses and proofs necessary for the
protection of the accused have by sheer lapse of time passed
beyond availability.[33] The periods fixed under such statutes
are jurisdictional and are essential elements of the offenses
covered.[34]
On the other hand, the time-bar under Section 8 of Rule
117 is akin to a special procedural limitation qualifying the right
of the State to prosecute making the time-bar an essence of
the given right or as an inherent part thereof, so that the lapse
of the time-bar operates to extinguish the right of the State to
prosecute the accused.[35]
The time-bar under the new rule does not reduce the
periods under Article 90 of the Revised Penal Code, a
substantive law.[36] It is but a limitation of the right of the State
to revive a criminal case against the accused after the
Information had been filed but subsequently provisionally
dismissed with the express consent of the accused. Upon the
lapse of the timeline under the new rule, the State is
presumed, albeit disputably, to have abandoned or waived its
right to revive the case and prosecute the accused. The
dismissal becomes ipso factopermanent. He can no longer be
charged anew for the same crime or another crime necessarily
included therein.[37] He is spared from the anguish and anxiety
as well as the expenses in any new indictments.[38] The State
may revive a criminal case beyond the one-year or two-year
periods provided that there is a justifiable necessity for the
delay.[39] By the same token, if a criminal case is dismissed on
motion of the accused because the trial is not concluded within
the period therefor, the prescriptive periods under the Revised
Penal Code are not thereby diminished.[40] But whether or not
the prosecution of the accused is barred by the statute of
limitations or by the lapse of the time-line under the new rule,
the effect is basically the same. As the State Supreme Court of
Illinois held:
This, in effect, enacts that when the specified period shall have
arrived, the right of the state to prosecute shall be gone, and the
liability of the offender to be punishedto be deprived of his
libertyshall cease. Its terms not only strike down the right of action
which the state had acquired by the offense, but also remove the flaw
which the crime had created in the offenders title to liberty. In this
respect, its language goes deeper than statutes barring civil remedies
usually do. They expressly take away only the remedy by suit, and
that inferentially is held to abate the right which such remedy would
enforce, and perfect the title which such remedy would invade; but
this statute is aimed directly at the very right which the state has
against the offenderthe right to punish, as the only liability which the
offender has incurred, and declares that this right and this liability
are at an end. [41]
The Court agrees with the respondent that procedural
laws may be applied retroactively. As applied to criminal law,
procedural law provides or regulates the steps by which one
who has committed a crime is to be punished. In Tan, Jr. v.
Court of Appeals,[42] this Court held that:
Statutes regulating the procedure of the courts will be construed as
applicable to actions pending and undetermined at the time of their
passage. Procedural laws are retroactive in that sense and to that
extent.The fact that procedural statutes may somehow affect the
litigants rights may not preclude their retroactive application to
pending actions. The retroactive application of procedural laws is not
violative of any right of a person who may feel that he is adversely
affected. Nor is the retroactive application of procedural statutes
constitutionally objectionable. The reason is that as a general rule no
vested right may attach to, nor arise from, procedural laws. It has
been held that a person has no vested right in any particular remedy,
and a litigant cannot insist on the application to the trial of his case,
whether civil or criminal, of any other than the existing rules of
procedure.
It further ruled therein that a procedural law may not be
applied retroactively if to do so would work injustice or would
involve intricate problems of due process or impair the
independence of the Court. In a per curiam decision
in Cipriano v. City of Houma,[43] the United States Supreme
Court ruled that where a decision of the court would produce
substantial inequitable results if applied retroactively, there is
ample basis for avoiding the injustice of hardship by a holding
of nonretroactivity.[44] A construction of which a statute is fairly
susceptible is favored, which will avoid all objectionable,
mischievous, indefensible, wrongful, and injurious
consequences.[45] This Court should not adopt an
interpretation of a statute which produces absurd,
unreasonable, unjust, or oppressive results if such
interpretation could be avoided.[46] Time and again, this Court
has decreed that statutes are to be construed in light of the
purposes to be achieved and the evils sought to be
remedied. In construing a statute, the reason for the
enactment should be kept in mind and the statute should be
construed with reference to the intended scope and
purpose.[47]
Remedial legislation, or procedural rule, or doctrine of the
Court designed to enhance and implement the constitutional
rights of parties in criminal proceedings may be applied
retroactively or prospectively depending upon several factors,
such as the history of the new rule, its purpose and effect, and
whether the retrospective application will further its operation,
the particular conduct sought to be remedied and the effect
thereon in the administration of justice and of criminal laws in
particular.[48] In a per curiam decision in Stefano v.
Woods,[49] the United States Supreme Court catalogued the
factors in determining whether a new rule or doctrine
enunciated by the High Court should be given retrospective or
prospective effect:
(a) the purpose to be served by the new standards, (b) the extent of
the reliance by law enforcement authorities on the old standards, and
(c) the effect on the administration of justice of a retroactive
application of the new standards.
In this case, the Court agrees with the petitioners that the
time-bar of two years under the new rule should not be applied
retroactively against the State.
In the new rule in question, as now construed by the
Court, it has fixed a time-bar of one year or two years for the
revival of criminal cases provisionally dismissed with the
express consent of the accused and with a priori notice to the
offended party. The time-bar may appear, on first impression,
unreasonable compared to the periods under Article 90 of the
Revised Penal Code. However, in fixing the time-bar, the
Court balanced the societal interests and those of the accused
for the orderly and speedy disposition of criminal cases with
minimum prejudice to the State and the accused. It took into
account the substantial rights of both the State and of the
accused to due process. The Court believed that the time limit
is a reasonable period for the State to revive provisionally
dismissed cases with the consent of the accused and notice to
the offended parties. The time-bar fixed by the Court must be
respected unless it is shown that the period is manifestly short
or insufficient that the rule becomes a denial of justice.[50] The
petitioners failed to show a manifest shortness or insufficiency
of the time-bar.
The new rule was conceptualized by the Committee on
the Revision of the Rules and approved by the Court en
banc primarily to enhance the administration of the criminal
justice system and the rights to due process of the State and
the accused by eliminating the deleterious practice of trial
courts of provisionally dismissing criminal cases on motion of
either the prosecution or the accused or jointly, either with no
time-bar for the revival thereof or with a specific or definite
period for such revival by the public prosecutor. There were
times when such criminal cases were no longer revived or
refiled due to causes beyond the control of the public
prosecutor or because of the indolence, apathy or the
lackadaisical attitude of public prosecutors to the prejudice of
the State and the accused despite the mandate to public
prosecutors and trial judges to expedite criminal
proceedings.[51]
It is almost a universal experience that the accused
welcomes delay as it usually operates in his
favor,[52] especially if he greatly fears the consequences of his
trial and conviction. He is hesitant to disturb the hushed
inaction by which dominant cases have been known to
expire.[53]
The inordinate delay in the revival or refiling of criminal
cases may impair or reduce the capacity of the State to prove
its case with the disappearance or nonavailability of its
witnesses.Physical evidence may have been lost. Memories of
witnesses may have grown dim or have faded. Passage of
time makes proof of any fact more difficult.[54] The accused
may become a fugitive from justice or commit another
crime. The longer the lapse of time from the dismissal of the
case to the revival thereof, the more difficult it is to prove the
crime.
On the other side of the fulcrum, a mere provisional
dismissal of a criminal case does not terminate a criminal
case. The possibility that the case may be revived at any time
may disrupt or reduce, if not derail, the chances of the
accused for employment, curtail his association, subject him to
public obloquy and create anxiety in him and his family. He is
unable to lead a normal life because of community suspicion
and his own anxiety. He continues to suffer those penalties
and disabilities incompatible with the presumption of
innocence.[55] He may also lose his witnesses or their
memories may fade with the passage of time. In the long run,
it may diminish his capacity to defend himself and thus eschew
the fairness of the entire criminal justice system.[56]
The time-bar under the new rule was fixed by the Court to
excise the malaise that plagued the administration of the
criminal justice system for the benefit of the State and the
accused; not for the accused only.
The Court agrees with the petitioners that to apply the
time-bar retroactively so that the two-year period commenced
to run on March 31, 1999 when the public prosecutor received
his copy of the resolution of Judge Agnir, Jr. dismissing the
criminal cases is inconsistent with the intendment of the new
rule. Instead of giving the State two years to revive
provisionally dismissed cases, the State had considerably less
than two years to do so. Thus, Judge Agnir, Jr. dismissed
Criminal Cases Nos. Q-99-81679 to Q-99-81689 on March 29,
1999. The new rule took effect on December 1, 2000. If the
Court applied the new time-bar retroactively, the State would
have only one year and three months or until March 31, 2001
within which to revive these criminal cases. The period is short
of the two-year period fixed under the new rule. On the other
hand, if the time limit is applied prospectively, the State would
have two years from December 1, 2000 or until December 1,
2002 within which to revive the cases. This is in consonance
with the intendment of the new rule in fixing the time-bar and
thus prevent injustice to the State and avoid absurd,
unreasonable, oppressive, injurious, and wrongful results in
the administration of justice.
The period from April 1, 1999 to November 30, 1999
should be excluded in the computation of the two-year period
because the rule prescribing it was not yet in effect at the time
and the State could not be expected to comply with the time-
bar. It cannot even be argued that the State waived its right to
revive the criminal cases against respondent or that it was
negligent for not reviving them within the two-year period
under the new rule. As the United States Supreme Court said,
per Justice Felix Frankfurter, in Griffin v. People:[57]
We should not indulge in the fiction that the law now announced has
always been the law and, therefore, that those who did not avail
themselves of it waived their rights .
The two-year period fixed in the new rule is for the benefit
of both the State and the accused. It should not be
emasculated and reduced by an inordinate retroactive
application of the time-bar therein provided merely to benefit
the accused. For to do so would cause an injustice of hardship
to the State and adversely affect the administration of justice in
general and of criminal laws in particular.
To require the State to give a valid justification as a
condition sine qua non to the revival of a case provisionally
dismissed with the express consent of the accused before the
effective date of the new rule is to assume that the State is
obliged to comply with the time-bar under the new rule before
it took effect. This would be a rank denial of justice. The State
must be given a period of one year or two years as the case
may be from December 1, 2000 to revive the criminal case
without requiring the State to make a valid justification for not
reviving the case before the effective date of the new
rule. Although in criminal cases, the accused is entitled to
justice and fairness, so is the State. As the United States
Supreme Court said, per Mr. Justice Benjamin Cardozo,
in Snyder v. State of Massachussetts,[58] the concept of
fairness must not be strained till it is narrowed to a
filament. We are to keep the balance true. In Dimatulac v.
Villon,[59] this Court emphasized that the judges action must
not impair the substantial rights of the accused nor the right of
the State and offended party to due process of law. This Court
further said:

Indeed, for justice to prevail, the scales must balance; justice is not to
be dispensed for the accused alone. The interests of society and the
offended parties which have been wronged must be equally
considered. Verily, a verdict of conviction is not necessarily a denial
of justice; and an acquittal is not necessarily a triumph of justice, for,
to the society offended and the party wronged, it could also mean
injustice. Justice then must be rendered even-handedly to both the
accused, on one hand, and the State and offended party, on the other.

In this case, the eleven Informations in Criminal Cases

Nos. 01-101102 to 01-101112 were filed with the Regional
Trial Court on June 6, 2001 well within the two-year period.
In sum, this Court finds the motion for reconsideration of
petitioners meritorious.
IN THE LIGHT OF ALL THE FOREGOING, the
petitioners Motion for Reconsideration is GRANTED. The
Resolution of this Court, dated May 28, 2002, is SET
ASIDE. The Decision of the Court of Appeals, dated August
24, 2001, in CA-G.R. SP No. 65034 is REVERSED. The
Petition of the Respondent with the Regional Trial Court in
Civil Case No. 01-100933 is DISMISSED for being moot and
academic. The Regional Trial Court of Quezon City, Branch
81, is DIRECTED to forthwith proceed with Criminal Cases
Nos. 01-101102 to 01-101112 with deliberate dispatch.
No pronouncements as to costs.
SO ORDERED.
 SECOND DIVISION
[G.R. No. 127262. July 24, 1997]
HUBERT WEBB, ANTONIO LEJANO, HOSPICIO
FERNANDEZ, MIGUEL RODRIGUEZ, PETER
ESTRADA and MICHAEL GATCHALIAN petitioner,
vs.PEOPLE OF THE PHILIPPINES, THE
HONORABLE AMELITA G. TOLENTINO, Presiding
Judge, Regional Trial Court of Paraaque, Branch
274, and LAURO VIZCONDE, respondents.
DECISION
PUNO, J.:
Petitioners Hubert Webb, Antonio Lejano, Hospicio
Fernandez, Miguel Rodriguez, Peter Estrada and Michael
Gatchalian[1] assail the decision of the Court of Appeals dated
June 21, 1996 in C.A. G.R. SP No. 39839[2] and C.A. G.R. SP
No. 39840,[3] as well as its resolution dated November 15,
1996 insofar as it denied the petition for the inhibition of
respondent Judge Amelita G. Tolentino in Criminal Case No.
95-404[4] pending before Branch 274 of the Regional Trial
Court of Paranaque.[5]
The antecedent facts show that on August 8, 1995,
petitioners were charged with the crime of rape with
homicide for allegedly raping Carmela Vizconde and on the
occasion thereof, killing Carmela herself and her mother,
Estrellita, and her sister, Jennifer. The crime was committed in
the evening of June 29 up to the early morning of June 30,
1991 at the Vizconde residence in BF Homes, Paraaque.[6]
The case, docketed as Criminal Case No. 95-404, was
raffled to Branch 274 of the Regional Trial Court of Paraaque
presided by respondent judge.
Prior to their arraignment, petitioner Webb and his co-
accused, Gerardo Biong, had sought the disqualification of
respondent judge in Criminal Case No. 95-404. In his motion
of August 21, 1995, petitioner Webb relied on the ground that
respondent judge allegedly told the media that "failure of the
accused to surrender following the issuance of the warrant of
arrest is an indication of guilt." Respondent judge denied the
motion. Two days later, on August 23, 1995, petitioner Webb
filed a second motion to disqualify respondent judge as the
latter allegedly told the media that the accused "should not
expect the comforts of home," pending the resolution of his
motion to be committed to the custody of the Philippine
National Police at Camp Ricardo Papa, Bicutan,
Paraaque. Respondent judge again denied the motion to
inhibit. On September 4, 1995, Gerardo Biong filed another
motion to disqualify respondent judge on the ground of bias
and partiality. This was likewise denied by respondent judge.
The petitioners were arraigned on September 4,
1995. They then filed separate petitions for bail.
On September 21, 1995, petitioner Webb filed an Urgent
Motion for Hospitalization. He alleged that he was sick of
dermatitis or asthma of the skin which aggravated due to his
continuous commitment at the Paraaque Municipal Jail. The
motion was denied by respondent judge on October 16, 1995.
On October 9, 1995, the hearing on petitioners' petitions
for bail commenced. The prosecution presented its "star
witness," Jessica Alfaro, who identified petitioners as the
perpetrators of the crime. During the cross-examination, the
defense counsel tried to impeach Alfaro's credibility by asking
her questions regarding the contents of an affidavit she
executed at the National Bureau of Investigation (NBI) on April
28, 1995. The defense tried to show that some of her
statements in said affidavit are inconsistent with her
statements in a subsequent affidavit executed on May 21,
1995 and with her testimony in court. The prosecution
objected and moved that all questions relating to the contents
of Alfaro's April 28 affidavit be expunged from the records for
being inadmissible in evidence under Article III Section 12(1)
and (3) of the 1987 Constitution.[7] Respondent judge
sustained the objection and on October 30, 1995, she issued
an order holding that Alfaro cannot be cross examined on the
contents of her April 28 affidavit because said affidavit was
inadmissible in evidence as it was not executed in the
presence of a counsel.[8]
The defense also tried to prove Alfaro's motive in
testifying against petitioners. She was questioned about her
brother, Patrick Alfaro, and her uncle, Roberto Alfaro. Jessica
Alfaro allegedly admitted that her brother, Patrick, was a drug
addict and was arrested once by the NBI for illegal possession
of drugs and that he is presently in the United States. When
defense counsel inquired about the circumstances of Patrick's
departure for the United States, the prosecution objected to
the questions on the ground of irrelevancy. Respondent judge
sustained the objection.
The defense also cross-examined Alfaro on her
educational attainment to show that she lied in her direct
testimony. The defense presented her transcript of records to
prove that she only enrolled for a year and earned nine (9)
academic units, contrary to her claim that she finished second
year college. The prosecution again objected on the ground
that Alfaro's educational attainment was
irrelevant. Respondent judge sustained the objection.
On November 9, 1995, petitioners filed a motion to
disqualify or inhibit respondent judge due to bias and
prejudice. Respondent judge denied the motion for lack of
merit on November 28, 1995.[9]
On November 15, 1995, petitioners filed two separate
petitions with this Court. Petitioners Webb, Lejano, Fernandez,
together with their co-accused, Gerardo Biong, filed a petition
for certiorari seeking to set aside (1) the order of respondent
judge dated October 16, 1995 denying petitioner Webb's
motion for hospitalization and (2) the order of respondent
judge dated October 30, 1995 disallowing the defense to
cross-examine Alfaro on the contents of her April 28
affidavit.[10] Petitioners Gatchalian and Estrada filed a petition
for certiorari, prohibition and mandamus assailing respondent
judge's order prohibiting the cross-examination of Alfaro on the
contents of her April 28 affidavit.[11]
On December 8, 1995, petitioners filed with this Court a
supplemental petition to set aside the November 28, 1995
order of respondent judge denying their motion for inhibition.
In a resolution dated January 22, 1996, we referred both
petitions and the supplemental petition to the Court of Appeals
for proper disposition.
In the meantime, the hearing on petitioners' petitions for
bail continued. The prosecution presented Mila Gaviola, a
former maid at the Webb residence, who testified that she saw
petitioner Webb in their house in the early morning of June 30,
1991. On December 5, 1995, respondent judge, over the
objection of the petitioners, ordered an ocular inspection of the
former Webb residence in BF Homes, Paraaque to verify
Gaviola's testimony about a secret door through which she
peeped to see petitioner Webb.
On January 12, 1996, petitioner Webb filed a motion for
deposition of witnesses residing in the United States who shall
testify on his presence in the United States on the date of the
commission of the crime.[12] On February 6, 1996, respondent
judge denied the motion for the reason that petitioner Webb
failed to allege that the witnesses do not have the means to go
to the place of the trial.[13] Hence, on January 12, 1996,
petitioner Webb filed another supplemental petition to the
Court of Appeals challenging the said order.
Petitioners made their Formal Offer of Evidence upon
conclusion of the hearings on the petitions for bail. On
September 25, 1995, the prosecution filed its
Comment/Objection to the Formal Offer of Evidence. On
October 1, 1996, respondent judge ruled on petitioner's formal
offer of evidence. She admitted only ten (10) out of the one
hundred forty two (142) exhibits offered by petitioner.[14]
On October 11, 1996, respondent judge denied
petitioners' petitions for bail.[15]
On June 21, 1996, the Court of Appeals rendered its
Decision on the various petitions and supplemental petitions. It
reversed respondent judge's ruling refusing to admit Alfaro's
April 28 affidavit but denied all the other reliefs prayed for by
petitioners.[16] It also denied petitioners' motion for
reconsideration in a resolution dated November 15, 1996.[17]
On December 12, 1996, petitioners filed the present
petition contending:
I
The Court of Appeals erred in declaring that no sufficient
ground exists for the disqualification of the respondent
judge.
A. Respondent judge has consistently and repeatedly shown
bias and hostility against petitioners.
B. The rejection of the 132 of 142 exhibits not only paved
the way for the denial of bail but also sets irreversibly
the eventual conviction of all the accused.
C. The reported trip to the Vizconde residence by the
respondent judge exposes her propensity to consort with
the complainant on the pending issues.
II
The Court of Appeals erred in not honoring that the right to
a fair trial requires that the case be tried by an impartial
judge.
On February 5, 1997, petitioners filed a supplemental
petition. It alleged, among others, that during the trial on the
merits, respondent judge allowed prosecution witness Atty.
Pedro Rivera to testify on the character of the accused
although the defense had not put his character in issue; that
respondent judge disallowed the defense to impeach the
credibility of Atty. Rivera by the presentation of an earlier
statement executed by him because such statement was
immaterial; and that respondent judge struck off from the
record the proffer of oral evidence made by defense counsel
Atty. Vitaliano Aguirre after ruling that the proffer was improper
on cross-examination.[18]
The core issue is whether respondent judge should inhibit
herself from hearing Criminal Case No. 95-404 on the ground
of bias and prejudice.
We rule in the negative.
The Bill of Rights guarantees that "(n)o person shall be
held to answer for a criminal offense without due process of
law."[19] A critical component of due process is a hearing
before an impartial and disinterested tribunal. We have
ingrained the jurisprudence that every litigant is entitled to
nothing less than the cold neutrality of an impartial judge for all
the other elements of due process, like notice and hearing,
would be meaningless if the ultimate decision would come
from a partial and biased judge.[20] Hence, the Rules of Court
allows a judge to voluntarily inhibit himself from hearing a case
for "just or valid reasons" other than those referring to his
pecuniary interest, relation, previous connection, or previous
rulings or decisions. Section 1 Rule 137 of the Revised Rules
of Court states:
 SECTION 1. Disqualification of judges. -- No judge or
judicial officer shall sit in any case in which he, or his wife
or child, is pecuniarily interested as heir, legatee, creditor or
otherwise, or in which he is related to either party within
the sixth degree of consanguinity or affinity, or to counsel
within the fourth degree, computed according to the rules of
the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he
has presided in any inferior court when his ruling or
decision is the subject of review, without the written
consent of all parties in interest, signed by them and entered
upon the record.
A judge may, in the exercise of his sound discretion,
disqualify himself from sitting in a case, for just or valid
reasons other than those mentioned above.
Under the second paragraph, a party has the right to seek the
inhibition or disqualification of a judge who does not appear to
be wholly free, disinterested, impartial and independent in
handling the case. This right must be weighed with the duty of
a judge to decide cases without fear of repression. Hence, to
disqualify a judge on the ground of bias and prejudice the
movant must prove the same by clear and convincing
evidence. This is a heavy burden and petitioners failed to
discharge their burden of proof.
To prove bias and prejudice on the part of respondent
judge, petitioners harp on the alleged adverse and erroneous
rulings of respondent judge on their various motions. By
themselves, however, they do not sufficiently prove bias and
prejudice to disqualify respondent judge. To be disqualifying,
the bias and prejudice must be shown to have stemmed from
an extrajudicial source and result in an opinion on the merits
on some basis other than what the judge learned from his
participation in the case. Opinions formed in the course of
judicial proceedings, although erroneous, as long as they are
based on the evidence presented and conduct observed by
the judge, do not prove personal bias or prejudice on the part
of the judge.[21] As a general rule, repeated rulings against a
litigant, no matter how erroneous and vigorously and
consistently expressed, are not a basis for disqualification of a
judge on grounds of bias and prejudice.[22] Extrinsic evidence
is required to establish bias, bad faith, malice or corrupt
purpose, in addition to the palpable error which may be
inferred from the decision or order itself. Although the decision
may seem so erroneous as to raise doubts concerning a
judge's integrity, absent extrinsic evidence, the decision itself
would be insufficient to establish a case against the
judge.[23] The only exception to the rule is when the error is so
gross and patent as to produce an ineluctable inference of bad
faith or malice.
A perusal of the records will reveal that petitioners failed
to adduce any extrinsic evidence to prove that respondent
judge was motivated by malice or bad faith in issuing the
assailed rulings. Petitioners simply lean on the alleged series
of adverse rulings of the respondent judge which they
characterized as palpable errors. This is not enough. We note
that respondent judge's rulings resolving the various motions
filed by petitioners were all made after considering the
arguments raised by all the parties. It is true that the
respondent judge erred in some of her rulings such as her
rejection of petitioners' one hundred thirty two (132) pieces of
evidence. It appears, however, that respondent judge reversed
this erroneous ruling and already admitted these 132 pieces of
evidence after finding that "the defects in (their) admissibility
have been cured through the introduction of additional
evidence during the trial on the merits."[24]This correction
diminishes the strength of petitioners' charge that respondent
judge is hopelessly biased against them. To be sure, the
respondent judge did not score a complete cipher in her
rulings against the petitioners. Just last June 11, 1997, the
Third Division of this Court dismissed an administrative
complaint against the respondent judge on the ground that "x x
x it is within the respondent judge's right to conduct an ocular IN VIEW WHEREOF, the petition is dismissed for lack of
inspection since it is an exercise of her judicial prerogative x x merit. No costs.
x."[25] There is still another reason why we should observe
caution in disqualifying respondent judge. The trial of the SO ORDERED.
petitioners is about to end and to assign a new judge to
determine the guilt or innocence of petitioners will not be for
the best interest of justice. The records of the case at bar run
into volumes. These voluminous records cannot capture in
print the complete credibility of witnesses when they testified in
court. As the respondent judge observed the demeanor of
witnesses while in the witness chair, she is in the best position
to calibrate their credibility. The task of evaluating the
credibility of witnesses includes interpreting their body
language and their meaningful nuances are not expressed in
the transcripts of their testimonies.
We hasten to stress that a party aggrieved by erroneous
interlocutory rulings in the course of a trial is not without
remedy. The range of remedy is provided in our Rules of Court
and we need not make an elongated discourse on the
subject. But certainly, the remedy for erroneous rulings, absent
any extrinsic evidence of malice or bad faith, is not the outright
disqualification of the judge. For there is yet to come a judge
with the omniscience to issue rulings that are always
infallible. The courts will close shop if we disqualify judges who
err for we all err.
We again remind respondent judge of our counsel in the
first Webb case[26] "x x x that our ability to dispense impartial
justice is an issue in every trial, and in every criminal
prosecution, the judiciary always stands as a silent
accused. More than convicting the guilty and acquitting the
innocent, the business of the judiciary is to assure fulfillment of
the promise that justice shall be done and is done - and that is
the only way for the judiciary to get an acquittal from the bar of
public opinion."
BRACY v. GRAMLEY, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
No. 96-6133. Argued April 14, 1997-Decided June 9, 1997
Petitioner was tried, convicted, and sentenced to death before
then-Judge Thomas J. Maloney, an Illinois judge who was
later convicted on federal charges of taking bribes from
criminal defendants. In this federal habeas petition, petitioner
claims that Maloney had an interest in his conviction to deflect
suspicion that the judge was taking bribes in other murder
cases during and around the time of petitioner's trial, and that
this interest violated the fair-trial guarantee of the Due Process
Clause. The District Court denied both the claim and a
supplemental discovery motion. In affirming, the Seventh
Circuit held, inter alia, that petitioner had not shown "good
cause" for discovery to prove his claim, as required by Rule
6(a) of the Rules Governing § 2254 Cases.
Held: Petitioner has made a sufficient factual showing, under
Habeas Corpus Rule 6(a), to establish "good cause" for
discovery on his claim of actual judicial bias in his case. Pp.
904-910.
(a) Before addressing whether petitioner is entitled to
discovery, his claim's essential elements must be identified.
See United States v. Armstrong, 517 U. S. 456, 468. Due
process requires a fair trial before a judge without actual bias
against the defendant or an interest in the outcome of his
particular case. Petitioner claims that Maloney's acceptance of
bribes from criminal defendants not only rendered him biased
against the State in those cases, but also induced a
compensatory bias against defendants who did not bribe him,
since he did not want to appear "soft" on criminal defendants.
There is no question that, if proved, such compensatory,
camouflaging bias in petitioner's own case would violate due
process. Pp. 904-905.
(b) Petitioner has shown good cause for appropriate discovery
to prove his claim. The usual presumption that public officials
have properly discharged their official duties has been soundly
rebutted here. Maloney's public trial and conviction show that
he was thoroughly corrupt. A Government proffer in that case
details his corruption as both a trial attorney and a judge.
Additional evidence supports the claim that Maloney was
biased in petitioner's own case. His trial attorney was a former
associate of Maloney's in a law practice that was familiar and
comfortable with corruption, who announced that he was ready
for trial just a few weeks after his appointment and requested
no additional time before trial to prepare for the penalty phase
of the case. Petitioner alleges that Maloney appointed the
attorney with the understanding that he would not object to, or
interfere with, a prompt trial, so that petitioner's case could
camouflage bribe negotiations being conducted in another
murder case. The Government's proffer confirms that
petitioner's murder trial was sandwiched tightly between other
murder trials that Maloney fixed. Although petitioner may be
unable to obtain evidence sufficient to support a finding of
actual judicial bias in his trial, he has made a sufficient
showing to establish "good cause" for discovery. Although,
given the facts of this particular case, it would be an abuse of
discretion not to permit any discovery, Habeas Corpus Rule
6(a) provides that the scope and extent of discovery is a
matter confided to the District Court's discretion. Pp. 906-909.
81 F.3d 684, reversed and remanded.
REHNQUIST, C. J., delivered the opinion for a unanimous
Court.
Gilbert H. Levy, by appointment of the Court, 519 U. S. 1106,
argued the cause for petitioner. With him on the briefs
was Martin S. Carlson.

Barbara A. Preiner, Solicitor General of Illinois, argued the

cause for respondent. With her on the brief were James E.
Ryan, Attorney General,
and Arleen C. Anderson and Steven J. Zick, Assistant
Attorneys General. *

CHIEF JUSTICE REHNQUIST delivered the opinion of the

Court.

Petitioner William Bracy was tried, convicted, and sentenced

to death before then-Judge Thomas J. Maloney for his

*Thomas F. Geraghty filed a brief for Concerned Illinois

Lawyers and Law Professors as amicus curiae urging reversal.

A brief of amicus curiae urging affirmance was filed for the

State of California et al. by Daniel E. Lungren, Attorney
General of California, George Williamson, Chief Assistant
Attorney General, Carol Wendelin Pollack, Senior Assistant
Attorney General, Donald E. DeNicola, Supervising Deputy
Attorney General, and David F. Glassman, Deputy Attorney
General, joined by the Attorneys General for their respective
jurisdictions as follows: Bill Pryor of Alabama, M. Jane
Brady of Delaware, Dennis C. Vacco of New
York, James S. Gilmore III of Virginia, Grant Woods of
Arizona, Frankie Sue Del Papa of Nevada, and W A. Drew
Edmondson of Oklahoma.
 EN BANC A.M. No. 10-11-7-SC

RE: PETITION FOR RADIO AND A.M. No. 10-11-5-SC

TELEVISION COVERAGE OF THE x----------------------------------------------------------------------------------
MULTIPLE MURDER CASES ------x
AGAINST MAGUINDANAO
GOVERNOR ZALDY AMPATUAN, ET
AL.,
x ----------------------------------- x
RE: PETITION FOR THE RESOLUTION
CONSTITUTION OF THE PRESENT A.M. No. 10-11-6-SC
COURT HANDLING THE TRIAL OF
THE MASSACRE OF 57 PERSONS, CARPIO MORALES, J.:
INCLUDING 32 JOURNALISTS, IN Present:
AMPATUAN, MAGUINDANAO INTO
A SPECIAL COURT HANDLING THIS CORONA,* C.J., On November 23, 2009, 57 people including 32 journalists and
CASE ALONE FOR THE PURPOSE OF CARPIO, media practitioners were killed while on their way to Shariff Aguak
ACHIEVING GENUINE SPEEDY CARPIO MORALES,
in Maguindanao. Touted as the worst election-related violence and
TRIAL and FOR THE SETTING UP OF VELASCO, JR.,
VIDEOCAM AND MONITOR JUST the most brutal killing of journalists in recent history, the tragic
LEONARDO-DE CASTRO,
OUTSIDE THE COURT FOR BRION, incident which came to be known as the Maguindanao Massacre
JOURNALISTS TO COVER AND FOR PERALTA,
THE PEOPLE TO WITNESS THE BERSAMIN, spawned charges for 57 counts of murder and an additional charge of
TRIAL OF THE DECADE TO MAKE DEL CASTILLO, rebellion against 197 accused, docketed as Criminal Case Nos. Q-09-
IT TRULY PUBLIC AND IMPARTIAL ABAD,
AS COMMANDED BY THE VILLARAMA, JR., 162148-72, Q-09-162216-31, Q-10-162652-66, and Q-10-163766,
CONSTITUTION, PEREZ, commonly entitled People v. Datu Andal Ampatuan, Jr., et
x ---------------------------------x MENDOZA, and
al. Following the transfer of venue and the reraffling of the cases, the
SERENO, JJ.
cases are being tried by Presiding Judge Jocelyn Solis-Reyes of
RE: LETTER OF PRESIDENT Promulgated: Branch 221 of the Regional Trial Court (RTC) of Quezon City inside
BENIGNO S. AQUINO III FOR THE
LIVE MEDIA COVERAGE OF THE June 14, 2011 Camp Bagong Diwa in Taguig City.
MAGUINDANAO MASSACRE TRIAL.
Almost a year later or on November 19, 2010, the National Union of and radio broadcast of the trial." The President expressed earnest
Journalists of the Philippines (NUJP), ABS-CBN Broadcasting hope that [this Court] will, within the many considerations that enter
Corporation, GMA Network, Inc., relatives of the into such a historic deliberation,
victims,[1] individual journalists[2] from various media entities, and attend to this petition with the dispatch, dispassion and humaneness,
[3]
members of the academe filed a petition before this Court praying such a petition merits.[9] The Court docketed the matter as A.M. No.
that live television and radio coverage of the trial in these criminal 10-11-7-SC.
cases be allowed, recording devices (e.g., still cameras, tape
recorders) be permitted inside the courtroom to assist the working By separate Resolutions of November 23, 2010,[10] the
journalists, and reasonable guidelines be formulated to govern the Court consolidated A.M. No. 10-11-7-SC with A.M. No. 10-11-5-
broadcast coverage and the use of devices.[4] The Court docketed the SC. The Court shall treat in a separate Resolution A.M. No. 10-11-6-
petition as A.M. No. 10-11-5-SC. SC.

In a related move, the National Press Club of the Meanwhile, various groups[11] also sent to the Chief Justice their
Philippines[5] (NPC) and Alyansa ng Filipinong respective resolutions and statements bearing on these matters.
[6]
Mamamahayag (AFIMA) filed on November 22, 2010 a petition
praying that the Court constitute Branch 221 of RTC-Quezon City The principal accused in the cases, Andal Ampatuan, Jr. (Ampatuan),
as a special court to focus only on the Maguindanao Massacre trial filed a Consolidated Comment of December 6, 2010 in A.M. No. 10-
to relieve it of all other pending cases and assigned duties, and 11-5-SC and A.M. No. 10-11-7-SC. The President, through the
allow the installation inside the courtroom of a sufficient number of Office of the Solicitor General (OSG), and NUJP, et al. filed their
video cameras that shall beam the audio and video signals to the respective Reply of January 18, 2011 and January 20,
[7]
television monitors outside the court. The Court docketed the 2011. Ampatuan also filed a Rejoinder of March 9, 2011.
petition as A.M. No. 10-11-6-SC.
On Broadcasting the Trial of the Maguindanao Massacre Cases
President Benigno S. Aquino III, by letter of November 22,
2010[8] addressed to Chief Justice Renato Corona, came out in Petitioners seek the lifting of the absolute ban on live television and

support of those who have petitioned [this Court] to permit television radio coverage of court proceedings. They principally urge the Court
to revisit the 1991 ruling in Re: Live TV and Radio Coverage of the
Hearing of President Corazon C. Aquinos Libel Case[12] and
the 2001 ruling in Re: Request Radio-TV Coverage of the Trial in the
Sandiganbayan of the Plunder Cases Against the Former President
[13]
Joseph E. Estrada which rulings, they contend, violate the
doctrine that proposed restrictions on constitutional rights are to be
narrowly construed and outright prohibition cannot stand when
regulation is a viable alternative.
Petitioners state that the trial of the Maguindanao Massacre cases has
attracted intense media coverage due to the gruesomeness of the
crime, prominence of the accused, and the number of media
personnel killed. They inform that reporters are being frisked and
searched for cameras, recorders, and cellular devices upon entry, and
that under strict orders of the trial court against live broadcast
coverage, the number of media practitioners allowed inside the
courtroom has been limited to one reporter for each media
institution.
The record shows that NUJP Vice-Chairperson Jose Jaime Espina,
by January 12, 2010 letter[14] to Judge Solis-Reyes, requested a
dialogue to discuss concerns over media coverage of the proceedings
of the Maguindanao Massacre cases. Judge Solis-Reyes replied,
however, that matters concerning media coverage should be brought
[15]
to the Courts attention through appropriate motion. Hence, the
present petitions which assert the exercise of the freedom of the
press, right to information, right to a fair and public trial, right to
assembly and to petition the government for redress of grievances,
right of free access to courts, and freedom of association, subject to
regulations to be issued by the Court.
The Court partially GRANTS pro hac vice petitioners prayer for
a live broadcast of the trial court proceedings, subject to the
guidelines which shall be enumerated shortly.
Putts Law[16] states that technology is dominated by two types of
people: those who understand what they do not manage, and those
who manage what they do not understand.Indeed, members of this
Court cannot strip their judicial robe and don the experts gown, so to
speak, in a pretense to foresee and fathom all serious prejudices or
risks from the use of technology inside the courtroom.
A decade after Estrada and a score after Aquino, the Court is once
again faced with the same task of striking that delicate balance
between seemingly competing yet certainly complementary rights.
The indication of serious risks posed by live media coverage to the
accuseds right to due process, left unexplained and unexplored in the
era obtaining in Aquino and Estrada, has left a blow to the exercise
of press freedom and the right to public information.
The rationale for an outright total prohibition was shrouded, as
it is now, inside the comfortable cocoon of a feared speculation
which no scientific study in the Philippine setting confirms, and
which fear, if any, may be dealt with by safeguards and safety
nets under existing rules and exacting regulations.
In this day and age, it is about time to craft a win-win situation that
shall not compromise rights in the criminal administration of justice,
sacrifice press freedom and allied rights, and interfere with the
integrity, dignity and solemnity of judicial proceedings. Compliance
with regulations, not curtailment of a right, provides a workable
solution to the concerns raised in these administrative matters, while,
at the same time, maintaining the same underlying principles upheld
in the two previous cases.
The basic principle upheld in Aquino is firm ─ [a] trial of any kind or
in any court is a matter of serious importance to all concerned and
should not be treated as a means of entertainment[, and t]o so treat it
deprives the court of the dignity which pertains to it and departs from
the orderly and serious quest for truth for which our judicial
proceedings are formulated. The observation that [m]assive intrusion
of representatives of the news media into the trial itself can so alter
and destroy the constitutionally necessary atmosphere and decorum
stands.
The Court concluded in Aquino:
Considering the prejudice it poses to the defendant's
right to due process as well as to the fair and orderly
administration of justice, and considering further that
the freedom of the press and the right of the people to
information may be served and satisfied by less
distracting, degrading and prejudicial means, live
radio and television coverage of court proceedings
shall not be allowed. Video footages of court
hearings for news purposes shall be restricted and
limited to shots of the courtroom, the judicial
officers, the parties and their counsel taken prior to
the commencement of official proceedings. No video
shots or photographs shall be permitted during the
trial proper.
Accordingly, in order to protect the parties' right to
due process, to prevent the distraction of the
participants in the proceedings and in the last
analysis, to avoid miscarriage of justice, the Court
resolved to PROHlBIT live radio and television
coverage of court proceedings. Video footage of
court hearings for news purposes shall be limited and
restricted as above indicated.[17]
The Court had another unique opportunity in Estrada to revisit the
question of live radio and television coverage of court proceedings in
a criminal case. It held that [t]he propriety of granting or denying the
instant petition involve[s] the weighing out of the constitutional
guarantees of freedom of the press and the right to public
information, on the one hand, and the fundamental rights of the
accused, on the other hand, along with the constitutional power of a
court to control its proceedings in ensuring a fair and impartial
trial. The Court disposed:
The Court is not all that unmindful of recent
technological and scientific advances but to chance
forthwith the life or liberty of any person in a hasty
bid to use and apply them, even before ample safety
nets are provided and the concerns heretofore
expressed are aptly addressed, is a price too high to
pay.
WHEREFORE, the petition is DENIED.
shall be prohibited under pain of contempt of court
and other sanctions in case of violations of the
prohibition; (e) to ensure that the conditions are
observed, the audio-visual recording of the
proceedings shall be made under the supervision and
control of the Sandiganbayan or its Division
concerned and shall be made pursuant to rules
promulgated by it; and (f) simultaneously with the
release of the audio-visual recordings for public
broadcast, the original thereof shall be deposited in
the National Museum and the Records Management
and Archives Office for preservation and exhibition
in accordance with law.[19]

SO ORDERED.[18]
Petitioners note that the 1965 case of Estes v.
In resolving the motion for reconsideration, the Court in Estrada, by [20]
Texas which Aquino and Estrada heavily cited, was borne out of
Resolution of September 13, 2001, provided a glimmer of hope when the dynamics of a jury system, where the considerations for the
it ordered the audio-visual recording of the trial for documentary possible infringement of the impartiality of a jury, whose members
purposes, under the following conditions: are not necessarily schooled in the law, are different from that of a

x x x (a) the trial shall be recorded in its entirety, judge who is versed with the rules of evidence. To
excepting such portions thereof as the Sandiganbayan petitioners, Estes also does not represent the most contemporary
may determine should not be held public under Rule position of the United States in the wake of latest
119, 21 of the Rules of Criminal Procedure; (b)
cameras shall be installed inconspicuously inside the jurisprudence[21] and statistical figures revealing that as of 2007 all
courtroom and the movement of TV crews shall be 50 states, except the District of Columbia, allow television
regulated consistent with the dignity and solemnity of
the proceedings; (c) the audio-visual recordings shall coverage with varying degrees of openness.
be made for documentary purposes only and shall be
made without comment except such annotations of
Other jurisdictions welcome the idea of media coverage. Almost all
scenes depicted therein as may be necessary to
explain them; (d) the live broadcast of the recordings the proceedings of United Kingdoms Supreme Court are filmed, and
before the Sandiganbayan shall have rendered its
decision in all the cases against the former President
sometimes broadcast.[22] The International Criminal Court broadcasts
its proceedings via video streaming in the internet.[23]
On the media coverages influence on judges, counsels and witnesses,
petitioners point out that Aquino and Estrada, like Estes, lack
empirical evidence to support the sustained conclusion. They point
out errors of generalization where the conclusion has been mostly
supported by studies on American attitudes, as there has been no
authoritative study on the particular matter dealing with Filipinos.
Respecting the possible influence of media coverage on the
impartiality of trial court judges, petitioners correctly explain that
prejudicial publicity insofar as it undermines the right to a fair trial
must pass the totality of circumstances test, applied in People v.
Teehankee, Jr.[24] and Estrada v. Desierto,[25] that the right of an
accused to a fair trial is not incompatible to a free press, that
pervasive publicity is not per se prejudicial to the right of an accused
to a fair trial, and that there must be allegation and proof of the
impaired capacity of a judge to render a bias-free decision. Mere fear
of possible undue influence is not tantamount to actual prejudice
resulting in the deprivation of the right to a fair trial.
Moreover, an aggrieved party has ample legal remedies. He may
challenge the validity of an adverse judgment arising from a
proceeding that transgressed a constitutional right.As pointed out by
petitioners, an aggrieved party may early on move for a change of
venue, for continuance until the prejudice from publicity is abated,
for disqualification of the judge, and for closure of portions of the
trial when necessary. The trial court may likewise exercise its power
of contempt and issue gag orders.
One apparent circumstance that sets the Maguindanao Massacre
cases apart from the earlier cases is the impossibility of
accommodating even the parties to the cases the private
complainants/families of the victims and other witnesses inside the
courtroom. On public trial, Estrada basically discusses:
An accused has a right to a public trial but it is a right
that belongs to him, more than anyone else, where his
life or liberty can be held critically in balance. A
public trial aims to ensure that he is fairly dealt with
and would not be unjustly condemned and that his
rights are not compromised in secrete conclaves of
long ago. A public trial is not synonymous with
publicized trial; it only implies that the court doors
must be open to those who wish to come, sit in the
available seats, conduct themselves with decorum
and observe the trial process. In the constitutional
sense, a courtroom should have enough facilities for a
reasonable number of the public to observe the
proceedings, not too small as to render the openness
negligible and not too large as to distract the trial
participants from their proper functions, who shall
then be totally free to report what they have observed
during the proceedings.[26] (underscoring supplied)
Even before considering what is a reasonable number of the public
who may observe the proceedings, the peculiarity of the subject
criminal cases is that the proceedings already necessarily entail the
presence of hundreds of families. It cannot be gainsaid that the
families of the 57 victims and of the 197 accused have as much
interest, beyond mere curiosity, to attend or monitor the proceedings
as those of the impleaded parties or trial participants. It bears noting
at this juncture that the prosecution and the defense have listed more
than 200 witnesses each.
The impossibility of holding such judicial proceedings in a
courtroom that will accommodate all the interested parties, whether
private complainants or accused, is unfortunate enough. What more
if the right itself commands that a reasonable number of the general
public be allowed to witness the proceeding as it takes place inside
the courtroom.Technology tends to provide the only solution to
break the inherent limitations of the courtroom, to satisfy the
imperative of a transparent, open and public trial.
In so allowing pro hac vice the live broadcasting by radio and
television of the Maguindanao Massacre cases, the Court lays down
the following guidelines toward addressing the concerns mentioned
in Aquino and Estrada:
(a) An audio-visual recording of the Maguindanao
massacre cases may be made both for documentary
purposes and for transmittal to live radio and
television broadcasting.
(b) Media entities must file with the trial court a letter
of application, manifesting that they intend to
broadcast the audio-visual recording of the
proceedings and that they have the necessary
technological equipment and technical plan to carry
out the same, with an undertaking that they will
faithfully comply with the guidelines and regulations
and cover the entire remaining proceedings until
promulgation of judgment.
No selective or partial coverage shall be
allowed. No media entity shall be allowed to
broadcast the proceedings without an application
duly approved by the trial court.
(c) A single fixed compact camera shall be installed
inconspicuously inside the courtroom to provide a
single wide-angle full-view of the sala of the trial
court. No panning and zooming shall be allowed to
avoid unduly highlighting or downplaying incidents
in the proceedings. The camera and the necessary
equipment shall be operated and controlled only by a
duly designated official or employee of the Supreme
Court. The camera equipment should not produce or
beam any distracting sound or light rays. Signal lights
or signs showing the equipment is operating should
not be visible. A limited number of microphones and
the least installation of wiring, if not wireless
technology, must be unobtrusively located in places
indicated by the trial court.
The Public Information Office and the Office
of the Court Administrator shall coordinate and assist
the trial court on the physical set-up of the camera
and equipment.
(d) The transmittal of the audio-visual recording from
inside the courtroom to the media entities shall be
conducted in such a way that the least physical
disturbance shall be ensured in keeping with the
dignity and solemnity of the proceedings and the
exclusivity of the access to the media entities.
The hardware for establishing an
interconnection or link with the camera equipment
monitoring the proceedings shall be for the account
of the media entities, which should employ
technology that can (i) avoid the cumbersome
snaking cables inside the courtroom, (ii) minimize
the unnecessary ingress or egress of technicians, and
(iii) preclude undue commotion in case of technical
glitches.
If the premises outside the courtroom lack
space for the set-up of the media entities facilities,
the media entities shall access the audio-visual
recording either via wireless technology accessible
even from outside the court premises or from one
common web broadcasting platform from which
streaming can be accessed or derived to feed the
images and sounds.
At all times, exclusive access by the media
entities to the real-time audio-visual recording should
be protected or encrypted.
(e) The broadcasting of the proceedings for a
particular day must be continuous and in its entirety,
excepting such portions thereof where Sec. 21 of
Rule 119 of the Rules of Court[27] applies, and where
the trial court excludes, upon motion, prospective
witnesses from the courtroom, in instances
where, inter alia, there are unresolved identification
issues or there are issues which involve the security
of the witnesses and the integrity of their testimony
(e.g., the dovetailing of corroborative testimonies is
material, minority of the witness).
The trial court may, with the consent of the
parties, order only the pixelization of the image of the
witness or mute the audio output, or both.
(f) To provide a faithful and complete broadcast of
the proceedings, no commercial break or any other
gap shall be allowed until the days proceedings are
adjourned, except during the period of recess called
by the trial court and during portions of the
proceedings wherein the public is ordered excluded.
(g) To avoid overriding or superimposing the audio
output from the on-going proceedings, the
proceedings shall be broadcast without any voice-
overs, except brief annotations of scenes depicted
therein as may be necessary to explain them at the
start or at the end of the scene. Any commentary shall
observe the sub judice rule and be subject to the
contempt power of the court;
(h) No repeat airing of the audio-visual recording
shall be allowed until after the finality of judgment,
except brief footages and still images derived from or
cartographic sketches of scenes based on the
recording, only for news purposes, which shall
likewise observe the sub judice rule and be subject to
the contempt power of the court;
(i) The original audio-recording shall be deposited in
the National Museum and the Records Management Indeed, the Court cannot gloss over what advances technology has to
and Archives Office for preservation and exhibition
in accordance with law. offer in distilling the abstract discussion of key constitutional
precepts into the workable context.Technology per se has always
(j) The audio-visual recording of the proceedings
shall be made under the supervision and control of been neutral. It is the use and regulation thereof that need fine-
the trial court which may issue supplementary tuning. Law and technology can work to the advantage and
directives, as the exigency requires, including the
furtherance of the various rights herein involved, within the contours
suspension or revocation of the grant of application
by the media entities. of defined guidelines.

WHEREFORE, in light of the foregoing disquisition, the

Court PARTIALLY GRANTS PRO HAC VICE the request for
live broadcast by television and radio of the trial court proceedings
(k) The Court shall create a special committee which of the Maguindanao Massacre cases, subject to the guidelines herein
shall forthwith study, design and recommend
outlined.
appropriate arrangements, implementing regulations,
and administrative matters referred to it by the Court
concerning the live broadcast of the proceedings pro SO ORDERED.
hac vice, in accordance with the above-outlined
guidelines. The Special Committee shall also report
and recommend on the feasibility, availability and
affordability of the latest technology that would meet
the herein requirements.It may conduct consultations
with resource persons and experts in the field of
information and communication technology.

(l) All other present directives in the conduct of the

proceedings of the trial court (i.e., prohibition on
recording devices such as still cameras, tape
recorders; and allowable number of media
practitioners inside the courtroom) shall be observed
in addition to these guidelines.
CRAWFORD V. WASHINGTON
SUPREME COURT OF THE UNITED STATES
CRAWFORD v. WASHINGTON
certiorari to the supreme court of washington
No. 02–9410. Argued November 10, 2003—Decided March 8,
2004
Petitioner was tried for assault and attempted murder. The
State sought to introduce a recorded statement that
petitioner‘s wife Sylvia had made during police interrogation,
as evidence that the stabbing was not in self-defense. Sylvia
did not testify at trial because of Washington‘s marital
privilege. Petitioner argued that admitting the evidence would
violate his Sixth Amendment right to be ―confronted with the
witnesses against him.‖ Under Ohio v. Roberts, 448 U. S. 56,
that right does not bar admission of an unavailable witness‘s
statement against a criminal defendant if the statement bears
―adequate ‗indicia of reliability,‘ ‖ a test met when the evidence
either falls within a ―firmly rooted hearsay exception‖ or bears
―particularized guarantees of trustworthiness.‖ Id., at 66. The
trial court admitted the statement on the latter ground. The
State Supreme Court upheld the conviction, deeming the
statement reliable because it was nearly identical
to, i.e., interlocked with, petitioner‘s own statement to the
police, in that both were ambiguous as to whether the victim
had drawn a weapon before petitioner assaulted him.
Held: The State‘s use of Sylvia‘s statement violated the
Confrontation Clause because, where testimonial statements
are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is confrontation. Pp. 5–33.
(a) The Confrontation Clause‘s text does not alone resolve
this case, so this Court turns to the Clause‘s historical
background. That history supports two principles. First, the
principal evil at which the Clause was directed was the civil-
law mode of criminal procedure, particularly the use of ex
parte examinations as evidence against the accused. The
Clause‘s primary object is testimonial hearsay, and
interrogations by law enforcement officers fall squarely within
that class. Second, the Framers would not have allowed
admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify and the
defendant had had a prior opportunity for cross-examination.
English authorities and early state cases indicate that this was
the common law at the time of the founding. And the ―right …
to be confronted with the witnesses against him,‖ Amdt. 6, is
most naturally read as a reference to the common-law right of
confrontation, admitting only those exceptions established at
the time of the founding. See Mattox v. United States, 156 U.
S. 237, 243. Pp. 5–21.
(b) This Court‘s decisions have generally remained faithful to
the Confrontation Clause‘s original meaning. See, e.g., Mattox,
supra. Pp. 21–23.
(c) However, the same cannot be said of the rationales of
this Court‘s more recent decisions. See Roberts, supra, at
66.The Roberts test departs from historical principles because
it admits statements consisting of ex parte testimony upon a
mere reliability finding. Pp. 24–25.
 (d) The Confrontation Clause commands that reliability be
assessed in a particular manner: by testing in the crucible of
cross-examination. Roberts allows a jury to hear evidence,
untested by the adversary process, based on a mere judicial
determination of reliability, thus replacing the constitutionally
prescribed method of assessing reliability with a wholly foreign
one. Pp. 25–27.

(e) Roberts’ framework is unpredictable. Whether a

statement is deemed reliable depends on which factors a
judge considers and how much weight he accords each of
them. However, the unpardonable vice of the Roberts test is
its demonstrated capacity to admit core testimonial statements
that the Confrontation Clause plainly meant to exclude. Pp.
27–30.

(f) The instant case is a self-contained demonstration

of Roberts’ unpredictable and inconsistent application. It also
reveals Roberts’ failure to interpret the Constitution in a way
that secures its intended constraint on judicial discretion. The
Constitution prescribes the procedure for determining the
reliability of testimony in criminal trials, and this Court, no less
than the state courts, lacks authority to replace it with one of
its own devising. Pp. 30–32.

147 Wash. 2d 424, 54 P. 3d 656, reversed and remanded.

 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 92427 August 2, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROBERTO PIDO, accused-appellant.
DAVIDE, JR., J.:
Rape is universally condemned as a most detestable crime.1 He
who commits it mocks and scorns, with demented outrage, a
union which Nature designs as a function of reproduction for the
perpetuation of humankind to be accomplished by a man and a
woman through full consent and mutual affection. Indeed,
consent is the common origin of acts between man and woman,
hence rape is not presumed.2 However, once established, it must
be severely and impartially punished.3 This is specially true in our
country where religion, tradition and culture assign a special role
to and impart high respect for the Filipina. When a Filipina
publicly comes out with a denunciation that she has been raped,
she evokes admiration for her courage and sympathy for her
harrowing experience, anguish and humiliation. To her charge
there is at once an aura of truth for, unless her accusation were
true, she would not lay bare her honor and reputation to the
suspicion, skepticism and malicious gossip that so often greet
public revelation of the loss of that which she holds most dear.4
Upon the other hand, the alleged rapist is forthwith
condemned5 However, under our democratic system of
Government, a mere accusation is not synonymous with
guilt.6 Every accused is presumed innocent until the contrary is
proved; that presumption is solemnly guaranteed by the Bill of
Rights.7 The contrary requires proof beyond reasonable doubt, or
that degree of proof which produces conviction in an unprejudiced
mind.8 Short of this, it is not only the right of the accused to be
freed; it is, even more, the constitutional duty of the court to
acquit him.9
Since in rape cases third party corroboration is seldom available
and the victim and the assailant are the only ones who could give
a first-hand or an eye-witness account of the questioned act,10 the
culpability of the offender almost invariably hinges on the story of
the complainant. In the light of the presumption of innocence that
the accused enjoys, the complainant's testimony must perforce
be carefully scrutinized and examined to satisfy the judicial
conscience that the accused did in fact commit the crime.11 Her
testimony should not be received with precipitate incredulity,
especially when the conviction depends at any vital point upon
her uncorroborated testimony; it should not be accepted unless
her sincerity and candor are free from suspicion.12 Such testimony
must be impeccable and ring true throughout,13 or credible and
positive.14 Clearly, therefore, as in other criminal cases, the
evidence for the prosecution in rape cases must stand or fall on
its own merits; it cannot be allowed to draw strength from the
weakness of the evidence for the defense.15 Thus, it has been
said that a rape charge is easy to make, hard to prove and harder
to defend by the party accused, though innocent.16
These are the principles which shall guide Us in the consideration
of this appeal from a judgment of conviction in a rape case.
On 22 May 1981, after a preliminary investigation, a complaint
for
rape,17 subscribed and sworn to on the 7th day of said month by
complainant Teresita Patinio y Gam, and containing the
appropriate certification by Assistant Fiscal Eudoxia T. Gualberto,
the body of which reads:
The undersigned complainant accuses ROBERTO R.
PIDO of the crime of rape, committed as follows:
That on or about the 15th day of April 1980, in the
City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and feloniously,
by means of force and intimidation, to wit: by
holding the neck of the complainant
simultaneously poking a deadly bladed instrument
against her, threatening to kill her should she
shout for help and ordering her to remove her
entire clothings, have sexual intercourse with the
undersigned complainant, against her will.
Contrary to Law.
was filed with the then Court of First Instance (now Regional Trial
Court) of Manila. It was docketed therein as Criminal Case No.
61752 and was assigned to Branch 35 thereof.
The accused entered a plea of not guilty when arraigned on 13
July 1981.
Trial was thereafter had. After resting its case, the prosecution
filed on 23 June 1988 a motion to amend the Information (should
be complaint) by correcting the date of the commission of the
offense from 15 April to 16 April 1980 to conform to the
evidence,18 which was granted by the trial court in its Order of 6
July 1988. The amended complaint was eventually filed on 18
July 1988. Earlier, however, or on 27 June 1988, accused filed a
Motion to Dismiss By Way of Demurrer to Evidence, which was
denied in the Order of 20 December 1988. A Motion for its
reconsideration, filed on 21 January 1989, was likewise denied in
the Order of 1 February 1989.19
The accused terminated the presentation of his evidence on 16
August 1989 and since the prosecuting fiscal manifested that the
People had no rebuttal evidence to offer, the trial court
considered the case submitted for decision.20
On 3 January 1990, the trial court promulgated its
decision,21 dated 5 December 1989, convicting the accused of the
crime of rape and sentencing him as follows:
WHEREFORE, judgment is rendered pronouncing
accused ROBERTO R. PIDO guilty beyond reasonable
doubt as principal of the crime of RAPE, and sentencing
him to reclusion perpetua.
The accused is ordered to indemnify the offended party,
Teresita Patinio, of the sum of P25,000.00 as moral
damages. However, payment of the required docket and
other legal fees shall constitute a lien in the execution of
this award.
With costs against the accused.
SO ORDERED.
On the same date, the accused filed his Notice of Appeal.22
The evidence for the prosecution upon which the conviction is
based is summarized by the trial court as follows:
xxx xxx xxx
From the evidence of the prosecution, the Court gathers
that Teresita and her family were residing in the second
floor of the house at No. 1917-B Dagupan Extension,
Tondo, Manila. The upper storey of that house had a
"sala" and two rooms. One room was occupied by
Lourdes Diaz, the owner of the house, while the other
room was occupied by Lydia Sulit. Teresita and her family
were using the "sala" of the house as their sleeping
quarter.
On April 15, 1980, the deaf-mute mother and the three
children of Teresita Sulit went to sleep at around 9:00
o'clock in the evening. Her husband was then in his place
of work, having been assigned in the night shift. Teresita
herself retired at about 11:00 o'clock in the same evening,
because she took a bath earlier and had to dry her hair.
They slept under one mosquito net, with her mother and
her two-year old chiId on the right side of Teresita and her
twin children, who were four years old, on her left.
Sometime between 1:00 and 2:00 o'clock in the same
evening, Teresita was awakened by an intruder, whom
she identified to be the accused, kneeling on her left side
and strangling her on the neck with his left hand while his
right hand was holding a sharp bladed instrument. The
accused threatened to kill Teresita if she would shout.
Afraid and intimidated by his threat, Teresita kept quiet.
Afterwards the accused told her to remove her panty,
which she did but from her right foot only; her underwear
remained on her left foot. The accused placed himself on
top of her, and with his left hand inserted his penis into
her genital organ. Shortly afterwards, Teresita felt that the
accused reached his orgasm. Then, he told her he would
come back, went out of the mosquito net, put on his
underwear, and left through the window of the house,
leaving Teresita crying.
Meanwhile, Lydia Sulit came out of her room to answer
the call of nature. She saw the accused standing in front
of the window, holding something. She saw him passed
(sic) out of the house through the window. When Lydia
switched on the light in the "sala" of their house, she saw
Teresita inside the mosquito net, sitting and leaning on an
aparador, shaking and crying. After drinking a glass of
water given her by Lydia and after regaining her
composure, Teresita told Lydia that she was raped by the
accused.23
xxx xxx xxx
On the other hand, although not an actual eyewitness of
the sexual assault committed by the accused against the
victim, Lydia Sulit, a housemate of the offended party,
testified that when she came out of their room between
1:00 and 2:00 o'clock in the morning of April 16, 1980, to
answer the call of nature, she saw Teresita Patinio sitting
inside their mosquito net, leaning on an aparador, crying,
pale and shaking, and her panty removed from one of her
legs. When Lydia inquired, what happened, Teresita
answered, she was raped by the accused, who warned
her that he would return . . . .24
xxx xxx xxx
The trial court characterized the testimony of complainant that
accused raped her as "positive and categorical," and "clear,
positive and convincing;" concluded that the credibility of the
declaration of complainant and her witness Lydia Sulit "have not
been shaken (sic) much less destroyed by the searching
questions of the cross-examiner;" and opined that the
spontaneous statement of complainant to Lydia Sulit that accused
raped her is "part of the res gestae and consequently trustworthy
because it was made under the external circumstances of
physical and mental shock, and under a stress of nervous
excitement which stilled the reflective faculties of the victim."
Its own summary of the evidence for the accused is as follows:
and to acquit him because:
The accused, however, denied the charge. While
admitting that he has (sic) sexual intercourse with
Teresita, said accused claims that their tryst was with her
consent. He declared that Teresita was his former
girlfriend; that she was then only 16 years old; that after
just over a year he broke off with their relation because
when she worked in a club somewhere in Pasay City, she
started going out with different men; that while working in
said club she became a prostitute; that on April 15, 1980,
between 9:00 and 10:00 in the evening, he attended the
despedida party of Ruben Paparo, the common-law
husband of Lydia Sulit, held at their backyard; that he
stayed in the party until 12:00 o'clock midnight; that he
could no longer recall how many bottles of beer he had
drank, but he had drank a lot; that in the course of their
drinking spree, he saw Teresita looking out at the window
and waving her hand to him, asking him to come up to her
and to pass in front of the house; that up-stairs, Teresita
asked him to enter their mosquito net and even moved
her youngest child to give them more space; that they
simultaneously took off their clothes and made love; that
while they were in the act, Lydia Sulit came out of her
room and saw them; that she watched them before she
proceeded; that both he and Teresita were embarrassed;
that because of embarrassment she cried; that he
dressed up and returned to the party, passing also
through the front door; that he told Genio Santiago that
they were caught by Lydia Sulit; that Lydia threatened
Teresita that she will report to her (Teresita's) common-
law husband what she (Lydia) saw the accused and
Teresita had done; that on account of such threat,
Teresita filed her present complaint.25
and was considered only as "his denial of the charge and his
claim that the sexual liaison was with the consent of the
complainant"
In his Brief, accused urges Us to reverse the challenged decision
1. THE LOWER COURT ERRED IN HOLDING THAT
THE SPONTANEOUS STATEMENT OF THE VICTIM
MADE TO LYDIA SULIT THAT THE ACCUSED RAPED
HER IS PART OF RES GESTAE.
2. THE LOWER COURT ERRED IN HOLDING THAT
DESPITE THE LENGTHY, RIGID AND SEARCHING
CROSS-EXAMINATION BY THE ACCUSED-
APPELLANT'S COUNSEL, THE ALLEGED VICTIM
TERESITA PATINIO AND HER WITNESS LYDIA SULIT
— THE CREDIBILITY OF THEIR DECLARATIONS
HAVE NOT BEEN SHAKEN MUCH LESS DESTROYED.
3. THE LOWER COURT ERRED IN CONCLUDING
THAT THE ACCUSED OFFERED ONLY HIS DENIAL OF
THE CHARGE AND HIS BARE CLAIM THAT THE
SEXUAL LIAISON WAS WITH THE CONSENT OF THE
COMPLAINANT SINCE THE ACCUSED REINFORCED
HIS ASSERTIONS WHEN SUBJECTED TO RIGID
CROSS EXAMINATION BY THE PROSECUTION
COUNSEL.
4. CONSEQUENTLY, THE LOWER COURT ERRED IN
CONVICTING THE ACCUSED-APPELLANT DESPITE
THAT THE RULE IS THAT CONVICTION MUST REST
NOT ON THE WEAKNESS OF THE DEFENSE BUT ON
THE STRENGTH OF THE PROSECUTION.
5. THE LOWER COURT ERRED IN ORDERING
ACCUSED-APPELLANT TO INDEMNIFY THE
OFFENDED PARTY THE SUM OF P25,000.00 AS
MORAL DAMAGES.26
Accused summarizes his arguments in support of the assigned
errors in this wise:
1. Res gestae was improperly applied by the lower court
considering the reputation for prior sex with other men by
the complainant who could not have been startled by a
sexual tryst with accused. Her testimony that the sexual
intercourse with the accused amounted to rape is highly
improbable and untrustworthy.
2. The cross-examination precisely exposed the
deliberate falsehood and inherent improbability in the
accounts of both victim and witness.
3. The fiscal having rigidly cross-examined the accused
— his testimony vividly reinforced his stand that the
complainant had sex with him with full consent and
cooperation.
4. While the rule is that conviction must rest not on the
weakness of the defense but on the strength of the
prosecution's evidence, the lower court still convicted the
accused. A charge for rape must be supported with
convincing evidence that will definitely prove the alleged
guilt of the rapist.
5. The purported victim in this case is not a young girl with
traditional modesty — but a wizened (sic) mature woman
with extensive experience in sex with other men. Moral
damages are unjustly awarded by the lower court.27
In Appellee's Brief, the Solicitor General maintains that the
decision appealed from is correct and prays that it be affirmed
with the modification that the indemnity for moral damages be
increased from P25,000.00 to P30,000.00. Appellee argues that
on the basis of the evidence for the prosecution, it was
established that accused succeeded in having carnal knowledge
with complainant through force and intimidation; he strangled and
threatened to kill her with a knife. The physical force employed by
accused and his threat to kill her and her children were more than
enough to force her to submission to his bestial desire. Force
need not be overpowering or absolute irresistible; it must only be
sufficient to enable the offender to consummate the purpose
which he had in mind.28 As regards the statement of complainant
to Lydia Sulit that she was raped by the accused, the same is part
of the res gestaebecause it was made under the influence of a
startling event witnessed by the person who made the
declaration; forcible sexual intercourse with a stranger is so
revolting as to constitute a startling event for a woman.
Appellee further maintains that the character of the offended party
in rape committed by force is immaterial;29 the fact that the
offended party may have been of an unchaste character
constitutes no defense in a charge of rape.30Even prostitutes may
be raped.31
In respect to credibility, appellee asserts that the conclusion of
the trial court on the credibility of witnesses in rape cases carries
great weight because it observed their behavior and
deportment.32 Also, accused's offer of compromise is a factor
indicating the truth of complainant's charge.
Finally, appellee argues that the assertion of the accused that the
sexual liaison was with the consent of complainant because she
was his former sweetheart is without foundation for he offered no
evidence to corroborate such claim; besides, assuming this to be
so, the relationship does not preclude rape. Moral damages in
rape is proper. In the instant case, it should be increased to
P30,000.00 in accordance with present jurisprudence.
The basic issue which these conflicting theories raise is whether
or not the guilt of the accused-appellant has been established
beyond reasonable doubt.
We have carefully and meticulously reviewed and analyzed the
evidence for the prosecution in this case and, guided by the
jurisprudential principles and considerations adverted to in the
exordium of this decision, We find that the prosecution failed to
discharge its duty to establish the guilt of the accused beyond
reasonable doubt. Reversal of the decision appealed from is
inevitable.
The prosecution can only rely on the testimonies of the
complainant, Teresita Patinio y Gam, and her witness, Lydia Sulit.
The trial court gave it full weight and credit as easily suggested by
the abundance of quotations, in the challenged decision, of their
testimonies on direct examination. Although it makes reference to
"lengthy, rigid and searching cross-examination by an able and
competent counsel, such that any deliberate falsehood in their
testimonies could have been easily detected and exposed,"
nothing at all is mentioned as regards the implausibilities,
improbabilities and inconsistencies on substantial matters which
the cross-examination revealed and exposed. The trial court
merely hurried itself to the sweeping conclusion that "the
credibility of their declarations have not been shaken much less
destroyed by the searching questions of the cross-examiner." As
hereinafter shown, this is not supported by the facts unfurled
during the cross-examination. On the whole, the challenged
decision leaves much to be desired. We find no serious effort at
all to dispassionately or impartially consider the totality of the
evidence for the prosecution in the light of the teaching in various
rulings that in rape cases, the testimony of the offended party
must not be accepted with precipitate credulity. Common sense
and logic, and above all the duty to render impartial justice, which
is expected from judges, demand that the testimonies of
witnesses must be viewed in their totality. This of course means
that due attention must be given to the cross-examination. It is
the province of the latter to test the credibility of the witnesses,
expose falsehood or half-truth, uncover the truth which rehearsed
direct-examination testimonies may successfully suppress, and
demonstrate inconsistencies on substantial matters which create
reasonable doubt. In short, cross-examination is an indispensable
instrument of criminal justice to give substance and meaning to
the Constitutional right of the accused to confront the witnesses
against him and to show that the presumption of innocence has
remained steadfast and firm.
This case then provides one more occasion for this Court to take
exception to the rule that appellate courts will generally not
disturb the factual findings of the trial court considering that it is in
a better position to decide the question, having heard the
witnesses themselves and observed their deportment and
manner of testifying.33 Two special considerations in this case
justify such departure. Firstly, it was another judge (Judge Alfredo
Lazaro) who heard and received the whole testimony on direct
examination of the complainant and the major portion of her
testimony on cross-examination. Judge Makasiar, who decided
the case, did not then have sufficient basis to form an opinion as
to the complainant's deportment and manner of testifying.
Secondly, the trial court had ignored or overlooked substantial
facts and circumstances, as hereafter shown, which would affect
the result of the case.
The following circumstances cast serious doubts on the theory of
the prosecution that accused had carnal knowledge with
complainant through force and intimidation:
A
There is uncertainty as to the weapon allegedly used to intimidate
complainant. The sworn complaint describes it as a "deadly
bladed instrument"; on direct examination, complainant describes
it as a "knife" (patalim).34 Yet, on cross-examination, she only said
that a pointed instrument which she "does not know" was pointed
on her neck, thus:
Q But an intruder strangled you with his both (sic) hands
on your neck?
 A Only his lefthand sir, but his righthand is (sic) holding a
pointed instrument.
xxx xxx xxx
Q Neither he fondled (sic) you in your breast?
A No sir, he released me because something was pointed
to my neck which I do not know.35
(Emphasis supplied).
and on redirect examination, instead of clarifying what the pointed
weapon was in relation to the knife, what resurfaced was not a
knife but a "pointed object," thus:
Q Let us come (sic) back to the scene where you were
threatened by the accused. You stated on cross-
examination that his lefthand was holding your neck while
his righthand was holding a pointed object and pointed to
your neck, do you remember that?
A Yes, sir.
Q When he threatened you that you should hold his penis
and place it in your vagina where was the pointed
object pointed to you at that time?
A (WITNESS POINTING ON THE RIGHT SIDE OF HER
NECK).36
The complaint was filed on 22 May 1981 after the complainant
had executed an affidavit and a preliminary investigation was
conducted. If indeed accused used a weapon to intimidate
complainant and the latter saw it and there was no doubt at all
that it was a knife, there was no reason why the complainant
should only describe it as a "deadly bladed, instrument" in her
sworn complaint and then merely as a "pointed instrument" on
cross-examination, which the prosecution did not even try to
rectify on redirect examination.
B
In her sworn complaint, complainant categorically asserted that
accused ordered her "to remove her entire clothings," yet in her
direct testimony, she was merely told to remove her panty, which
she did not fully comply with because it was removed from the
right leg only, and remained with the left leg.37 On cross-
examination, she reiterated this and even quoted the alleged
instructions of the accused.
C
On direct examination, complainant testified that when she woke
up because the accused strangled her, the latter was kneeling on
her left side near her twins;38 yet, on cross examination, she
declared that her body was in between his legs, thus:
Q When you woke up, according to you, the accused was
strangling you, what was the position of the accused?
A When I woke up he had my body in between us both
(sic) legs and with the hand placed on my neck in a
strangle hold and he had a knife on his right hand.39
D
By a direct, positive and unequivocal statement, complainant
categorically asserted on direct examination that:
When he [accused] was on top of me, he inserted his
private organ to my private organ.
with the use of his left hand,40 which she repeated in detail at one
point of the cross-examination, thus:
Q After you have removed your panty, what did the
accused do?
A He removed his hand . . . left hand on my neck and
moved his body a little to the back and he held his private
organ and inserted it into my private organ.
Q Which hand did he use in inserting his organ to yours?
A He used his left hand. 41
However, in another point during cross-examination, she affirmed
that the accused was beside her, and she was the one who took
hold of his penis and put it into her private organ:
Q Have you felt his body when he was beside you at that
right?
A Yes, sir.
Q For how many minutes have (sic) you felt his
body when he was beside you?
A Just for a short while, sir.
Q Because you immediately took hold of his penis and
put into your vagina?
A Yes, sir.42
which she did for the following reason:
Q And so that you can immediately finish his intercourse?
A Yes, sir.43
The lame excuse for such conduct offered by her on redirect
examination was because she was nervous as she was
threatened by accused who told her "you insert it otherwise I will
kill you including your children."44 He resorted to this because "at
first he was not able to insert it";45 yet, on direct examination, she
categorically stated that when he was on top of her he inserted
his organ, and although she did not see how, she knew that it
was already inside.46
E
While on direct examination, she wanted to convey that she was
reluctant to remove her panty, and in an earlier cross-
examination, she wanted the court to believe that she spread her
legs preparatory to the intercourse because she was allegedly
ordered by the accused;47 yet subsequently, she was candid
enough to admit that she immediately removed her panty and
raised her dress for the intercourse, thus:
Q So, when this intruder allegedly told you to remove your
panty, you immediately removed your panty?
A Yes, sir, I obeyed him because I was afraid.
Q And after that you immediately raised your dress so
that this intruder can immediately have sexual
intercourse?
A Yes, sir.
Q And immediately this intruder immediately (sic)
penetrated his penis over (sic) your vagina?
A Yes, sir.
 Q And while he was penetrating (sic) his over your A Yes sir, he went away but I could not recall if he left
vagina, he is (sic) making love with you? because I was crying.

A No sir, straight.48 Q Are (sic) you crying aloud?

However, in another portion of the cross-examination, A Not so loud, sir.

complainant, by slip of her tongue, admitted that she in fact
voluntarily removed her panty, thus: Q A You are (sic) crying because of happiness, am I
right?
Q And you never even bothered to go out of the mosquito
net and shout? A No, sir.

A I stood up, sir. Q After making love with you, do you know if this intruder
dressed-up?
Q You stood up because you want (sic) to wear again
your panty which you voluntarily removed? A I do not know anymore sir, I was crying because of fear.

A Yes, sir. xxx xxx xxx

Q You never even bothered to go to the window and
asked (sic) help from your neighbors?
A No. sir.49
(Emphasis supplied)
xxx
F
On cross-examination, the cross examiner succeeded in showing
that the sexual liaison was the product of mutual consent, or the
complainant and the accused were "making love." The following
questions and answers are enlightening:
Q Now, you said that after less than 5 minutes making
love with this alleged intruder, he left you at the sala, am I
right?
Q So, you want to impress this Honorable Court that while
you were making love with the accused this Lydia Sulit
passed by?
A Yes, sir.
xxx xxx
Q While you were making love with the accused, do you
remember if the party is (sic) still going on downstairs?
A Yes, sir.
Q So, there are (sic) still many people at the ground floor
of your house during that night when you were making
love with the accused?
 A No sir, that is not true. Q So, you were then lying when you testified on January
18, 1982 that the accused jumped over the window?
Q Which is not true?
A It was not our window that opened in front of where we
A The people were already asleep, sir. are (sic) sleeping, sir.

Q After making love with the accused, do you know where Q But you are telling that the window is (sic) still open
the accused passed thru in going down? since you slept and making (sic) love with the accused?

A I do not know, sir. A That window was really open because it is (sic) warm,
sir.53
Q Is it not true that the accused jumped over the window?
If the references to "making love" were without basis, or that the
A I do not know sir, I was crying because I was afraid.
50 questions based thereon were misleading, the prosecuting fiscal
should have objected. None was made, and there is no showing
that the prosecuting fiscal is incompetent. After this "love-making"
This claim that she did not then know where the accused passed
rendezvous, the accused promised to return to make love again.
through is of course inconsistent with her assurance on direct
examination that the accused used the window for his exit:
Q And after finishing the intercourse what did this intruder
do if he did anything?
A After he put on his panty or shorts, he left through the
window. This window is at the second floor of the house
where he jumped.51 A He told me that he will return, sir.

xxx xxx xxx Q To make love again with you?

A He went out of the window where the stairs is just A Yes, sir.
nearby and he stepped on it. There he already went
down. Q And you said "yes" because you like it?

xxx xxx xxx A No sir, I was crying.

A Well, I don't know how he entered, Your Honor, but he Q Because you are (sic) afraid that your husband might
went out through the window.52 know it?

then she confirmed on such cross-examination, thus: A No sir, I was still startled because of my fear.54
G moon but of the "light in the kitchen which was kept open at
This fear, however, seemed to be more imagined than real in the
light of the above findings clearly demonstrating her consent to
the act. As a matter of fact, there is enough evidence to show that
she signaled to the accused to spend time with her and that she
prepared for the tryst. For reasons only known to the prosecution,
it opted not to rebut the damaging testimony of the accused that
among others, complainant signaled to him to come up; she
thereafter took a bath; when he came up, she ordered him to get
inside the mosquito net, and to give him space beside her, she
even moved her youngest child; and then they simultaneously
took off their clothes and made love. While they were in the act,
Lydia Sulit came out of her room and saw them. Because of
embarrassment, complainant cried. He then dressed up and
returned to the party.
That Lydia saw them while they were making love is admitted by
complainant as indicated above. Lydia, however, has her own
version. According to this version, which the trial court
erroneously credited, when she woke up at dawn of 16 April
1980, she saw the accused, who was 4 1/2 meters away facing
the window with his back toward her, in the act of either buttoning
or closing the zipper of his pants; then he passed through the
window. She then turned on the light and saw the complainant
inside the mosquito net sitting with her back against the aparador.
She was crying. Lydia then got a glass of water, gave it to her,
and asked her what happened. Complainant was shaking and so
Lydia waited until she calmed down. After she calmed down, she
told Lydia that she was raped by the accused. At that time,
complainant's panty was still down on one foot.55
According to Lydia, she was able to recognize the accused
because of the "moonlight giving the light inside the house." The
flourescent lamp was put
off.56 However, the complainant, when asked how she was able to
identify the accused, did not make mention of the light of the
night."57
The version of Lydia cannot prevail over the testimonies of both
the complainant and the accused that she (Lydia) saw them "in
the act."
H
The conduct of the complainant after the alleged rape is
inconsistent with that of one who had been subjected to a
harrowing experience under the bestial act of a rapist. Contrary to
the alleged initial interest of the complainant and Lydia Sulit to
seek immediate redress and vindication as evidenced by Lydia's
immediate advice:
Q After Teresita Patinio informed you that she was raped
by Pido and after having observed her condition, what did
you do next?
A Because it was still dark and everybody was still
asleep, I told her to go to (sic) precinct but it is not proper
because we have to go first to the Barangay Chairman,
sir.58
yet, it was only on 30 May 1980 that the sworn statement of the
complainant was prepared.59 The delay has not been explained.
Complainant did not report the incident to her common-law
husband, Nicasio Gam, when he arrived in the morning of the day
it happened, 16 April 1980. As to when she did so, she gave
conflicting versions. In her direct testimony, she declared that it
was only on the following day that she "revealed to him the
truth."60 Yet, on cross-examination, she declared that she reported
it to him several days after:
 Q And you are (sic) afraid that your cousin [referring to
Lydia Sulit] might tell your husband that she saw you
making love with the accused?
A No sir, I reported it to my husband.
Q And that is (sic) several days when your cousin saw
you?
A Yes, sir.61
Lydia Sulit, however, claims that it was she who told
complainant's husband:
Q How did the husband of Teresita Patinio come to know
about the incident?
A I was the one who told the matter to the husband of
Teresita Patinio, sir.62
If she is to be believed, after the act, she just stood up to "wear
again her panty"; however, Lydia testified that complainant was
sitting inside the mosquito net with her back on the aparador and
her panty down on one foot only and although she was crying, it
was not loud enough, it would be heard only if one would come
near her. All that complainant told Lydia was that she was raped
by the accused, who threatened her and promised to "return
back."63When asked to describe the facial expression of
complainant, the best that Lydia could say was that she "looked
pale."
There was nothing in the complainant's behavior to show a
natural reaction to a heinous offense.
What then seems to be clear to Us is that Lydia did not arrive
after the act, but as testified by the accused and corroborated by
complainant herself, she saw both inside the mosquito net. The
complainant was so embarrassed that she had to concoct the
story of rape.
I
Complainant's protestation that she was strangled or choked by
the accused is belied by the medical certificate prepared by Dr.
Maximo Reyes, senior medico-legal officer of the National Bureau
of Investigation, and his testimony.
The medical certificate states:
1. No evident sign of extragenital physical injury noted on
the body of the subject at the time of examination.
On cross-examination, said medico legal officer testified:
Q After examining the alleged victim, did you find any
injury which caused by a (sic) violent acts on her body?
A I did not find any injury, sir.
Q So that, when she presented herself to you for
examination she was at her usual, ordinary health and
person?
A Yes, sir.
COURT:
Q In other words, when you made your physical
examination of the subject you did not find any bruises on
her body from which we may conclude that she was a
victim of physical violence?
A Nothing your Honor,64
With the foregoing, the judicial mind cannot securely rest on a
verdict of conviction. The evidence for the prosecution fails to
1âwphi1

convince Us with moral certainty that the crime of rape was

committed and that the accused is guilty thereof.

The so-called offer of compromise would not save the day for the
prosecution. The evidence on this matter is amorphous.
Moreover, as admitted by the complainant, there was only a
request by Leonardo Pido, brother of appellant, that she should
not go through with the filing of the complaint; he did not offer any
monetary consideration; and that accused appellant was not even
present during that time.65

WHEREFORE, for failure of the prosecution to establish the guilt

of the accused for the crime of rape as charged beyond
reasonable doubt, the decision of the trial court in Criminal Case
No. 61752 is hereby REVERSED and another is hereby entered
ACQUITTING the accused Roberto R. Pido, with costs de officio.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 185527 July 18, 2012
HARRY L. GO, TONNY NGO, JERRY NGO AND JANE
GO, Petitioners,
vs.
THE PEOPLE OF THE PHILIPPINES and HIGHDONE
COMPANY, LTD., ET AL., Respondents.
DECISION
PERLAS-BERNABE, J.:
The procedure for taking depositions in criminal cases recognizes
the prosecution's right to preserve testimonial evidence and prove
its case despite the unavailability of its witness. It cannot,
however, give license to prosecutorial indifference or unseemly
involvement in a prosecution witness' absence from trial. To rule
otherwise would effectively deprive the accused of his
fundamental right to be confronted with the witnesses against
him.
In this Petition for Review on Certiorari under Rule 45 of the
Revised Rules of Court, petitioners seek to nullify and set aside
the February 19, 2008 Decision1 and November 28, 2008
Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No.
99383, which reversed the September 12, 2006 Order3 issued by
the Regional Trial Court (RTC) of Manila, Branch 27 in Civil Case
No. 06-114844 and upheld the grant of the prosecution‘s motion
to take the testimony of a witness by oral depositions in Laos,
Cambodia.
Petitioners Harry Go, Tonny Ngo, Jerry Ngo and Jane Go were
charged before the Metropolitan Trial Court (MeTC) of Manila for
Other Deceits under Article 318 of the Revised Penal Code
(RPC) docketed as Criminal Case No. 396447. The
Information4 dated September 24, 2003, later amended5 on
September 14, 2004, reads:
"That sometime in August 1996, in the City of Manila, Philippines,
the said accused, conspiring, confederating together and helping
one another, did then and there willfully, unlawfully and
feloniously defraud Highdone Company Ltd. Represented by Li
Luen Ping, in the following manner, to wit: all said accused, by
means of false manifestations and fraudulent representations
which they made to said Li Luen Ping to the effect that they have
chattels such as machinery, spare parts, equipment and raw
materials installed and fixed in the premises of BGB Industrial
Textile Mills Factory located in the Bataan Export Processing
Zone (BEPZ) in Mariveles, Bataan, executed a Deed of Mortgage
for a consideration of the amount of $464,266.90 or its peso
equivalent at P20,892,010.50 more or less in favor of ML
Resources and Highdone Company Ltd. Representing that the
said deed is a FIRST MORTGAGE when in truth and in fact the
accused well knew that the same had been previously
encumbered, mortgaged and foreclosed by CHINA BANK
CORPORATION as early as September 1994 thereby causing
damage and prejudice to said HIGHDONE COMPANY LTD., in
the said amount of $464,266.90 or its peso equivalent at
P20,892,010.50 more or less."
Upon arraignment, petitioners pleaded not guilty to the charge.
The prosecution's complaining witness, Li Luen Ping, a frail old
businessman from Laos, Cambodia, traveled from his home
country back to the Philippines in order to attend the hearing held
on September 9, 2004. However, trial dates were subsequently
postponed due to his unavailability.
On October 13, 2005, the private prosecutor filed with the MeTC
a Motion to Take Oral Deposition6 of Li Luen Ping, alleging that he
was being treated for lung infection at the Cambodia Charity
Hospital in Laos, Cambodia and that, upon doctor's advice, he
could not make the long travel to the Philippines by reason of ill
health.
Notwithstanding petitioners' Opposition,7 the MeTC granted8 the
motion after the prosecution complied with the directive to submit
a Medical Certificate of Li Luen Ping. Petitioners sought its
reconsideration which the MeTC denied,9 prompting petitioners to
file a Petition for Certiorari10 before the RTC.
On September 12, 2006, the RTC granted the petition and
declared the MeTC Orders null and void.11 The RTC held that
Section 17, Rule 23 on the taking of depositions of witnesses in
civil cases cannot apply suppletorily to the case since there is a
specific provision in the Rules of Court with respect to the taking
of depositions of prosecution witnesses in criminal cases, which
is primarily intended to safeguard the constitutional rights of the
accused to meet the witness against him face to face.
Upon denial by the RTC of their motion for reconsideration
through an Order dated March 5, 2006,12 the prosecution elevated
the case to the CA.
On February 19, 2008, the CA promulgated the assailed Decision
which held that no grave abuse of discretion can be imputed upon
the MeTC for allowing the deposition-taking of the complaining
witness Li Luen Ping because no rule of procedure expressly
disallows the taking of depositions in criminal cases and that, in
any case, petitioners would still have every opportunity to cross-
examine the complaining witness and make timely objections
during the taking of the oral deposition either through counsel or
through the consular officer who would be taking the deposition of
the witness.
On November 28, 2008, the CA denied petitioners' motion for
reconsideration. Hence, this petition alleging that –
I.THE COURT OF APPEALS ERRED IN NOT FINDING
THAT THE METROPOLITAN TRIAL COURT
INFRINGED THE CONSTITUTIONAL RIGHT OF THE
PETITIONERS TO A PUBLIC TRIAL IN ALLOWING THE
TAKING OF THE DEPOSITION OF THE COMPLAINING
WITNESS IN LAOS, CAMBODIA.
II.THE COURT OF APPEALS ERRED IN NOT FINDING
THAT THE DEPOSITION TAKING OF THE
COMPLAINING WITNESS IN LAOS, CAMBODIA IS AN
INFRINGEMENT OF THE CONSTITUTIONAL RIGHT OF
THE PETITIONERS TO CONFRONT THE SAID
WITNESS FACE TO FACE.
III.THE COURT OF APPEALS ERRED IN SUSTAINING
THE JUDICIAL LEGISLATION COMMITTED BY THE
METROPOLITAN TRIAL COURT IN APPLYING THE
RULES ON DEPOSITION-TAKING IN CIVIL CASES TO
CRIMINAL CASES.
IV.THE COURT OF APPEALS ERRED IN LIMITING THE
TRADITIONAL DEFINITION OF GRAVE ABUSE OF
DISCRETION, OVERLOOKING THE ESTABLISHED
RULE THAT VIOLATION OF THE CONSTITUTION, THE
LAW OR JURISPRUDENCE SIMILARLY COMES
WITHIN THE PURVIEW OF GRAVE ABUSE OF
DISCRETION.
We rule in favor of petitioners.
The Procedure for Testimonial Examination of an Unavailable
Prosecution Witness is Covered Under Section 15, Rule 119.
The examination of witnesses must be done orally before a judge
in open court.13 This is true especially in criminal cases where the
Constitution secures to the accused his right to a public trial and
to meet the witnessess against him face to face. The requirement
is the "safest and most satisfactory method of investigating facts"
as it enables the judge to test the witness' credibility through his
manner and deportment while testifying.14 It is not without
exceptions, however, as the Rules of Court recognizes the
conditional examination of witnesses and the use of their
depositions as testimonial evidence in lieu of direct court
testimony.
Even in criminal proceedings, there is no doubt as to the
availability of conditional examination of witnesses – both for the
benefit of the defense, as well as the prosecution. The Court's
ruling in the case of Vda. de Manguerra v. Risos15 explicitly states
that –
"x x x As exceptions, Rule 23 to 28 of the Rules of Court provide
for the different modes of discovery that may be resorted to by a
party to an action. These rules are adopted either to perpetuate
the testimonies of witnesses or as modes of discovery. In criminal
proceedings, Sections 12, 13 and 15, Rule 119 of the Revised
Rules of Criminal Procedure, which took effect on December 1,
2000, allow the conditional examination of both the defense and
prosecution witnesses." (Underscoring supplied)16
The procedure under Rule 23 to 28 of the Rules of Court allows
the taking of depositions in civil cases, either upon oral
examination or written interrogatories, before any judge, notary
public or person authorized to administer oaths at any time or
place within the Philippines; or before any
Philippine consular official, commissioned officer or person
authorized to administer oaths in a foreign state or country, with
no additional requirement except reasonable notice in writing to
the other party.17
But for purposes of taking the deposition in criminal cases, more
particularly of a prosecution witness who would forseeably be
unavailable for trial, the testimonial examination should be made
before the court, or at least before the judge, where the case is
pending as required by the clear mandate of Section 15, Rule 119
of the Revised Rules of Criminal Procedure. The pertinent
provision reads thus:
SEC. 15. Examination of witness for the prosecution. – When it
satisfactorily appears that a witness for the prosecution is too sick
or infirm to appear at the trial as directed by the court, or has to
leave the Philippines with no definite date of returning, he may
forthwith be conditionally examined before the court where the
case is pending. Such examination, in the presence of the
accused, or in his absence after reasonable notice to attend the
examination has been served on him shall be conducted in the
same manner as an examination at the trial. Failure or refusal of
the accused to attend the examination after notice shall be
considered a waiver. The statement taken may be admitted in
behalf of or against the accused.
Since the conditional examination of a prosecution witness must
take place at no other place than the court where the case is
pending, the RTC properly nullified the MeTC's orders granting
the motion to take the deposition of Li Luen Ping before the
Philippine consular official in Laos, Cambodia. We quote with
approval the RTC's ratiocination in this wise:
The condition of the private complainant being sick and of
advanced age falls within the provision of Section 15 Rule 119 of
the Rules of Court. However, said rule substantially provides that
he should be conditionally examined before the court where the
case is pending. Thus, this Court concludes that the language of
Section 15 Rule 119 must be interpreted to require the parties to
present testimony at the hearing through live witnesses, whose
demeanor and credibility can be evaluated by the judge presiding
at the hearing, rather than by means of deposition. No where in
the said rule permits the taking of deposition outside the
Philippines whether the deponent is sick or not.18(Underscoring
supplied)
Certainly, to take the deposition of the prosecution witness
elsewhere and not before the very same court where the case is
pending would not only deprive a detained accused of his right to
attend the proceedings but also deprive the trial judge of the
opportunity to observe the prosecution witness' deportment and
properly assess his credibility, which is especially intolerable
when the witness' testimony is crucial to the prosecution's case
against the accused. This is the import of the Court's ruling in
Vda. de Manguerra19 where we further declared that –
While we recognize the prosecution's right to preserve the
testimony of its witness in order to prove its case, we cannot
disregard the rules which are designed mainly for the protection
of the accused's constitutional rights. The giving of testimony
during trial is the general rule. The conditional examination of a
witness outside of the trial is only an exception, and as such, calls
for a strict construction of the rules.20 (Underscoring supplied)
It is argued that since the Rules of Civil Procedure is made
explicitly applicable in all cases, both civil and criminal as well as
special proceedings, the deposition-taking before a Philippine
consular official under Rule 23 should be deemed allowable also
under the circumstances.
However, the suggested suppletory application of Rule 23 in the
testimonial examination of an unavailable prosecution witness
has been categorically ruled out by the Court in the same case of
Vda. de Manguerra, as follows:
It is true that Section 3, Rule 1 of the Rules of Court provides that
the rules of civil procedure apply to all actions, civil or criminal,
and special proceedings. In effect, it says that the rules of civil
procedure have suppletory application to criminal cases.
However, it is likewise true that criminal proceedings are primarily
governed by the Revised Rules of Criminal Procedure.
Considering that Rule 119 adequately and squarely covers the
situation in the instant case, we find no cogent reason to apply
Rule 23 suppletorily or otherwise." (Underscoring supplied)
The Conditional Examination of a Prosecution Witness Cannot
Defeat the Rights of the Accused to Public Trial and
Confrontation of Witnesses
The CA took a simplistic view on the use of depositions in
criminal cases and overlooked fundamental considerations no
less than the Constitution secures to the accused, i.e., the right to
a public trial and the right to confrontation of witnesses. Section
14(2), Article III of the
Constitution provides as follows:
Section 14. (1) x x x
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to
be heard by himself and counsel, to be informed of the nature
and cause of the accusation against him, to have a speedy,
impartial and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However,
after arraignment, trial may proceed notwithstanding the absence
of the accused provided that he has been duly notified and his
failure to appear is unjustifiable. (Underscoring supplied)
In dismissing petitioners' apprehensions concerning the
deprivation of their constitutional rights to a public trial and
confrontation, the CA opined that petitioners would still be
accorded the right to cross-examine the deponent witness and
raise their objections during the deposition-taking in the same
manner as in a regular court trial.
We disagree. There is a great deal of difference between the
face-to- face confrontation in a public criminal trial in the presence
of the presiding judge and the cross-examination of a witness in a
foreign place outside the courtroom in the absence of a trial
judge. In the aptly cited case of People v. Estenzo,21 the Court
noted the uniqueness and significance of a witness testifying in
open court, thus:
"The main and essential purpose of requiring a witness to appear
and testify orally at a trial is to secure for the adverse party the
opportunity of cross-examination. "The opponent", according to
an eminent authority, "demands confrontation, not for the idle
purpose of gazing upon the witness, or of being gazed upon by
him, but for the purpose of cross examination which cannot be
had except by the direct and personal putting of questions and
obtaining immediate answers." There is also the advantage of the
witness before the judge, and it is this – it enables the judge as
trier of facts "to obtain the elusive and incommunicable evidence
of a witness' deportment while testifying, and a certain subjective
moral effect is produced upon the witness. It is only when the
witness testifies orally that the judge may have a true idea of his
countenance, manner and expression, which may confirm or
detract from the weight of his testimony. Certainly, the physical
condition of the witness will reveal his capacity for accurate
observation and memory, and his deportment and physiognomy
will reveal clues to his character. These can only be observed by
the judge if the witness testifies orally in court. x x
x"22 (Underscoring supplied)1âw phi 1
The right of confrontation, on the other hand, is held to apply
specifically to criminal proceedings and to have a twofold
purpose: (1) to afford the accused an opportunity to test the
testimony of witnesses by cross-examination, and (2) to allow the
judge to observe the deportment of witnesses.23 The Court
explained in People v. Seneris24 that the constitutional requirement
"insures that the witness will give his testimony under oath, thus
deterring lying by the threat of perjury charge; it forces the
witness to submit to cross-examination, a valuable instrument in
exposing falsehood and bringing out the truth; and it enables the
court to observe the demeanor of the witness and assess his
credibility."25
As the right of confrontation is intended "to secure the accused in
the right to be tried as far as facts provable by witnesses as meet
him face to face at the trial who give their testimony in his
presence, and give to the accused an opportunity of cross-
examination,"26 it is properly viewed as a guarantee against the
use of unreliable testimony in criminal trials. In the American case
of Crawford v. Washington,27 the US Supreme Court had
expounded on the procedural intent of the confrontation
requirement, thus:
Where testimonial statements are involved, we do not think the
Framers meant to leave the Sixth Amendment's right to confront
witness face to face protection to the vagaries of the rules of
evidence, much less to amorphous notions of "reliability".
Certainly, none of the authorities discussed above acknowledges
any general reliability exception to the common-law rule.
Admitting statements deemed reliable by a judge is fundamentally
at odds with the right of confrontation. To be sure, the Clause's
ultimate goal is to ensure reliability of evidence, but it is a
procedural rather than a substantive guarantee. It commands, not
that evidence be reliable, but that reliability be assessed in a
particular manner: by testing in the crucible of cross-examination.
The Clause thus reflects a judgment, not only about the
desirability of reliable evidence (a point on which there could be
little dissent), but about how reliability can best be determined."
(Underscoring supplied)
The Webb Ruling is Not on All Fours with the Instant Case
The CA found the frail and infirm condition of the prosecution
witness as sufficient and compelling reason to uphold the MeTC
Orders granting the deposition-taking, following the ruling in the
case of People v. Webb28 that the taking of an unavailable witness'
deposition is in the nature of a discovery procedure the use of
which is within the trial court's sound discretion which needs only
to be exercised in a reasonable manner and in consonance with
the spirit of the law.29
But the ruling in the cited case is not instantly applicable herein
as the factual settings are not similar. The accused in the Webb
1âwphi1
case had sought to take the oral deposition of five defense
witnesses before a Philippine consular agent in lieu of presenting
them as live witnesses, alleging that they were all residents of the
United States who could not be compelled by subpoena to testify
in court. The trial court denied the motion of the accused but the
CA differed and ordered the deposition taken. When the matter
was raised before this Court, we sustained the trial court's
disallowance of the deposition-taking on the limited ground that
there was no necessity for the procedure as the matter sought to
be proved by way of deposition was considered merely
corroborative of the evidence for the defense.30
In this case, where it is the prosecution that seeks to depose the
complaining witness against the accused, the stringent procedure
under Section 15, Rule 119 cannot be ignored without violating
the constitutional rights of the accused to due process.
Finally, the Court takes note that prosecution witness Li Luen
Ping had managed to attend the initial trial proceedings before
the MeTC of Manila on September 9, 2004. At that time, Li Luen
Ping's old age and fragile constitution should have been
unmistakably apparent and yet the prosecution failed to act with
zeal and foresight in having his deposition or testimony taken
before the MeTC pursuant to Section 15, Rule 119 of the Revised
Rules of Court. In fact, it should have been imperative for the
prosecution to have moved for the preservation of Li Luen Ping's
testimony at that first instance given the fact that the witness is a
non-resident alien who can leave the Philippines anytime without
any definite date of return. Obviously, the prosecution allowed its
main witness to leave the court's jurisdiction without availing of
the court procedure intended to preserve the testimony of such
witness. The loss of its cause is attributable to no other party.
Still, even after failing to secure Li Luen Ping's conditional
examination before the MeTC prior to said witness' becoming sick
and unavailable, the prosecution would capitalize upon its own
failure by pleading for a liberal application of the rules on
depositions. It must be emphasized that while the prosecution
must provide the accused every opportunity to take the deposition
of witnesses that are material to his defense in order to avoid
charges of violating the right of the accused to compulsory
process, the State itself must resort to deposition-taking sparingly
if it is to guard against accusations of violating the right of the
accused to meet the witnesses against him face to face. Great
care must be observed in the taking and use of depositions of
prosecution witnesses to the end that no conviction of an accused
will rely on ex parte affidavits and deposition.31
Thus, the CA ignored the procedure under the Revised Rules of
Criminal Procedure for taking the deposition of an unavailable
prosecution witness when it upheld the trial court's order allowing
the deposition of prosecution witness Li Luen Ping to take place
in a venue other than the court where the case is pending. This
was certainly grave abuse of discretion.
WHEREFORE, the petition is hereby GRANTED. The assailed
Decision dated February 19, 2008 and the Resolution dated
November 28, 2008 of the Court of Appeals are REVERSED and
SET ASIDE. Accordingly, the Decision of the Regional Trial Court
which disallowed the deposition-taking in Laos, Cambodia is
REINSTATED.
SO ORDERED.
UNITED STATES v. SCHEFFER
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
No. 96-1133. Argued November 3, 1997-Decided March
31, 1998
A polygraph examination of respondent airman indicated,
in the opinion of the Air Force examiner administering the
test, that there was "no deception" in respondent's denial
that he had used drugs since enlisting. Urinalysis,
however, revealed the presence of methamphetamine,
and respondent was tried by general court-martial for
using that drug and for other offenses. In denying his
motion to introduce the polygraph evidence to support his
testimony that he did not knowingly use drugs, the
military judge relied on Military Rule of Evidence 707,
which makes polygraph evidence inadmissible in court-
martial proceedings. Respondent was convicted on all
counts, and the Air Force Court of Criminal Appeals
affirmed. The Court of Appeals for the Armed Forces
reversed, holding that a per se exclusion of polygraph
evidence offered by an accused to support his credibility
violates his Sixth Amendment right to present a defense.
Held: The judgment is reversed. 44 M. J. 442, reversed.
JUSTICE THOMAS delivered the opinion of the Court
with respect to Parts I, II-A, and II-D, concluding that
Military Rule of Evidence 707 does not unconstitutionally
abridge the right of accused members of the military to
present a defense. pp. 308-312, 315-317.
(a) A defendant's right to present relevant evidence is
subject to reasonable restrictions to accommodate other
legitimate interests in the criminal trial process.
See, e. g., Rock v. Arkansas, 483 U. S. 44, 55. State and
federal rulemakers therefore have broad latitude under
the Constitution to establish rules excluding evidence.
Such rules do not abridge an accused's right to present a
defense so long as they are not "arbitrary" or
"disproportionate to the purposes they are designed to
serve." E. g., id., at 56. This Court has found the
exclusion of evidence to be unconstitutionally arbitrary or
disproportionate only where it has infringed upon a
weighty interest of the accused. See, e. g., id., at 58.
Rule 707 serves the legitimate interest of ensuring that
only reliable evidence is introduced. There is simply no
consensus that polygraph evidence is reliable: The
scientific community and the state and federal courts are
extremely polarized on the matter. pp. 308-312.
Syllabus
(b) Rule 707 does not implicate a sufficiently weighty
interest of the accused to raise a constitutional concern
under this Court's precedents. The three cases principally
relied upon by the Court of Appeals, Rock, supra, at
57, Washington v. Texas, 388 U. S. 14, 23,
and Chambers v. Mississippi, 410 U. S. 284, 302-303, do
not support a right to introduce polygraph evidence, even
in very narrow circumstances. The exclusions of
evidence there declared unconstitutional significantly
undermined fundamental elements of the accused's
defense. Such is not the case here, where the court
members heard all the relevant details of the charged
offense from respondent's perspective, and Rule 707 did
not preclude him from introducing any factual evidence,
but merely barred him from introducing expert opinion
testimony to bolster his own credibility. Moreover, in
contrast to the rule at issue in Rock, supra, at 52, Rule
707 did not prohibit respondent from testifying on his own
behalf; he freely exercised his choice to convey his
version of the facts at trial. Pp. 315-317.
THOMAS, J., announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I,
II-A, and II-D, in which REHNQUIST, C. J., and
O'CONNOR, SCALIA, KENNEDY, SOUTER,
GINSBURG, and BREYER, JJ., joined, and an opinion
with respect to Parts II-B and II-C, in which REHNQUIST,
C. J., and SCALIA and SOUTER, JJ., joined. KENNEDY,
J., filed an opinion concurring in part and concurring in
the judgment, in which O'CONNOR, GINSBURG, and
BREYER, JJ., joined, post, p. 318. STEVENS, J., filed a
dissenting opinion, post, p. 320.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the briefs were Acting
Solicitor General Dellinger, Acting Solicitor General
Waxman, Acting Assistant Attorney General Keeney,
David C. Frederick, Joel M. Gershowitz, and Michael J.
Breslin.
Kim L. Sheffield argued the cause for respondent. With
her on the brief were Carol L. Hubbard, Michael L.
McIntyre, Robin S. Wink, and W Craig Mullen. *
*Briefs of amici curiae urging reversal were filed for the
State of Connecticut et al. by John M. Bailey, Chief
State's Attorney of Connecticut, and Judith Rossi, Senior
Assistant State's Attorney, and by the Attorneys General
for their respective jurisdictions as follows: Bill Pryor of
Alabama, Bruce M. Botelho of Alaska, Winston Bryant of
Arkansas, Daniel E. Lungren of California, M. Jane
Brady of Delaware, Thurbert E. Baker
JUSTICE THOMAS announced the judgment of the
Court and delivered the opinion of the Court with respect
to Parts I, II-A, and II-D, and an opinion with respect to
Parts II-B and II-C, in which THE CHIEF JUSTICE,
JUSTICE SCALIA, and JUSTICE SOUTER join.
This case presents the question whether Military Rule of
Evidence 707, which makes polygraph evidence
inadmissible in court-martial proceedings,
unconstitutionally abridges the right of accused members
of the military to present a defense. We hold that it does
not.
I
In March 1992, respondent Edward Scheffer, an airman
stationed at March Air Force Base in California,
volunteered to work as an informant on drug
investigations for the Air Force Office of Special
Investigations (OSI). His OSI supervisors advised him
that, from time to time during the course of his
undercover work, they would ask him to submit to drug
testing and polygraph examinations. In early April,
of Georgia, Jeffrey A. Modisett of Indiana, Carla J. Stovall
of Kansas, Richard P. Ieyoub of Louisiana, Andrew
Ketterer of Maine, J. Joseph Curran, Jr., of Maryland,
Scott Harshbarger of Massachusetts, Mike Moore of
Mississippi, Joseph P. Mazurek of Montana, Don
Stenberg of Nebraska, Frankie Sue Del Papa of Nevada,
Philip T. McLaughlin of New Hampshire, Dennis C.
Vacco of New York, Michael F. Easley of North Carolina,
Betty D. Montgomery of Ohio, Drew Edmondson of
Oklahoma, D. Michael Fisher of Pennsylvania, Jeffrey B.
Pine of Rhode Island, Charles Molony Condon of South
Carolina, Richard Cullen of Virginia, Christine O.
Gregoire of Washington, Robert A. Butterworth of Florida,
and William U Hill of Wyoming; and for the Criminal
Justice Legal Foundation by Kent
Briefs of amici curiae urging affirmance were filed for the
American Polygraph Association by Gordon L.
Vaughan; for the United States Army Defense Appellate
Division by John T. Phelps II; for the Committee of
Concerned Social Scientists by Charles F. Peterson; for
the National Association of Criminal Defense Lawyers
by Charles W Daniels and Barbara E. Bergman; and for
the United States Navy-Marine Corps Appellate Defense
Division by Syed N. Ahmad.
one of the OSI agents supervising respondent requested
that he submit to a urine test. Shortly after providing the
urine sample, but before the results of the test were
known, respondent agreed to take a polygraph test
administered by an OSI examiner. In the opinion of the
examiner, the test "indicated no deception" when
respondent denied using drugs since joining the Air
Force.1
On April 30, respondent unaccountably failed to appear
for work and could not be found on the base. He was
absent without leave until May 13, when an Iowa state
patrolman arrested him following a routine traffic stop and
held him for return to the base. OSI agents later learned
that respondent's urinalysis revealed the presence of
methamphetamine.
Respondent was tried by general court-martial on
charges of using methamphetamine, failing to go to his
appointed place of duty, wrongfully absenting himself
from the base for 13 days, and, with respect to an
unrelated matter, uttering 17 insufficient funds checks.
He testified at trial on his own behalf, relying upon an
"innocent ingestion" theory and denying that he had
knowingly used drugs while working for OSI. On cross-
examination, the prosecution attempted to impeach
respondent with inconsistencies between his trial
testimony and earlier statements he had made to OSI.
Respondent sought to introduce the polygraph evidence
in support of his testimony that he did not knowingly use
drugs. The military judge denied the motion, relying on
Military Rule of Evidence 707, which provides, in relevant
part:
"(a) Notwithstanding any other provision of law, the
results of a polygraph examination, the opinion of a
polygraph examiner, or any reference to an offer to take,
1 The OSI examiner asked three relevant questions: (1)
"Since you've been in the [Air Force], have you used any
illegal drugs?"; (2) "Have you lied about any of the drug
information you've given OSI?"; and (3) "Besides your
parents, have you told anyone you're assisting OSI?"
Respondent answered "no" to each question. App. 12.
failure to take, or taking of a polygraph examination, shall
not be admitted into evidence."
The military judge determined that Rule 707 was
constitutional because "the President may, through the
Rules of Evidence, determine that credibility is not an
area in which a fact finder needs help, and the polygraph
is not a process that has sufficient scientific acceptability
to be relevant." 2 App. 28. He further reasoned that the
factfinder might give undue weight to the polygraph
examiner's testimony, and that collateral arguments
about such evidence could consume "an inordinate
amount of time and expense." Ibid.
Respondent was convicted on all counts and was
sentenced to a bad-conduct discharge, confinement for
30 months, total forfeiture of all pay and allowances, and
reduction to the lowest enlisted grade. The Air Force
Court of Criminal Appeals affirmed in all material
respects, explaining that Rule 707 "does not arbitrarily
limit the accused's ability to present reliable evidence."
41 M. J. 683, 691 (1995) (en bane).
By a 3-to-2 vote, the United States Court of Appeals for
the Armed Forces reversed. 44 M. J. 442 (1996). Without
pointing to any particular language in the Sixth
Amendment, the Court of Appeals held that "[a] per
se exclusion of polygraph evidence offered by an
accused to rebut an attack on his credibility ... violates his
Sixth Amendment right to present a defense." Id., at
445.3 Judge Crawford, dissent-
2 Article 36 of the Uniform Code of Military Justice
authorizes the President, as Commander in Chief of the
Armed Forces, see U. S. Const., Art. II, § 2, to
promulgate rules of evidence for military courts: "Pretrial,
trial, and post-trial procedures, including modes of proof,
... may be prescribed by the President by regulations
which shall, so far as he considers practicable, apply the
principles oflaw and the rules of evidence generally
recognized in the trial of criminal cases in the United
States district courts." 10 U. S. C. § 836(a).
3 In this Court, respondent cites the Sixth Amendment's
Compulsory Process Clause as the specific constitutional
provision supporting his claim. He also briefly contends
that the "combined effect" of the Fifth and Sixth
Amendments confers upon him the right to a "'meaningful
op-
ing, stressed that a defendant's right to present relevant
evidence is not absolute, that relevant evidence can be
excluded for valid reasons, and that Rule 707 was
supported by a number of valid justifications. Id., at 449-
451. We granted certiorari, 520 U. S. 1227 (1997), and
we now reverse.
II
A defendant's right to present relevant evidence is not
unlimited, but rather is subject to reasonable
restrictions.4 See Taylor v. Illinois, 484 U. S. 400, 410
(1988); Rock v. Arkansas, 483 U. S. 44, 55
(1987); Chambers v. Mississippi, 410 U. S. 284, 295
(1973). A defendant's interest in presenting such
evidence may thus "'bow to accommodate other
legitimate interests in the criminal trial process.'" Rock,
supra, at 55 (quoting Chambers, supra, at 295);
accord, Michigan v. Lucas, 500 U. S. 145, 149 (1991). As
a result, state and federal rulemakers have broad latitude
under the Constitution to establish rules excluding
evidence from criminal trials. Such rules do not abridge
an accused's right to present a defense so long as they
are not "arbitrary" or "disproportionate to the purposes
they are designed to serve." Rock, supra, at 56;
accord, Lucas, supra, at 151. Moreover, we have found
the exclusion of evidence to be unconstitutionally
arbitrary or disproportionate only where it has infringed
upon a weighty interest of the accused. See Rock,
supra, at 58; Chambers, supra, at
302; Washington v. Texas, 388 U. S. 14, 22-23 (1967).
portunity to present a complete
defense,'" Crane v. Kentucky, 476 U. S. 683, 690 (1986)
(citations omitted), and that this right in turn
encompasses a constitutional right to present polygraph
evidence to bolster his credibility.
4 The words "defendant" and "jury" are used throughout
in reference to general principles of law and in discussing
nonmilitary precedents. In reference to this case or to the
military specifically, the terms "court," "court members,"
or "court-martial" are used throughout, as is the military
term "accused," rather than the civilian term "defendant."
Rule 707 serves several legitimate interests in the
criminal trial process. These interests include ensuring
that only reliable evidence is introduced at trial,
preserving the court members' role in determining
credibility, and avoiding litigation that is collateral to the
primary purpose of the trial.5 The Rule is neither arbitrary
nor disproportionate in promoting these ends. Nor does it
implicate a sufficiently weighty interest of the defendant
to raise a constitutional concern under our precedents.
A
State and Federal Governments unquestionably have a
legitimate interest in ensuring that reliable evidence is
presented to the trier of fact in a criminal trial. Indeed, the
exclusion of unreliable evidence is a principal objective of
many evidentiary rules. See, e. g., Fed. Rules Evid. 702,
802, 901; see also Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U. S. 579, 589 (1993).
The contentions of respondent and the dissent
notwithstanding, there is simply no consensus that
polygraph evidence is reliable. To this day, the scientific
community remains extremely polarized about the
reliability of polygraph techniques. 1 D. Faigman, D.
Kaye, M. Saks, & J. Sanders, Modern Scientific Evidence
565, n. t, § 14-2.0 to § 14-7.0 (1997); see also 1 P.
Giannelli & E. Imwinkelried, Scientific
5 These interests, among others, were recognized by the
drafters of Rule 707, who justified the Rule on the
following grounds: the risk that court members would be
misled by polygraph evidence; the risk that the traditional
responsibility of court members to ascertain the facts and
adjudge guilt or innocence would be usurped; the danger
that confusion of the issues "'could result in the court-
martial degenerating into a trial of the polygraph
machine;'" the likely waste of time on collateral issues;
and the fact that the "'reliability of polygraph evidence
has not been sufficiently established.''' See 41 M. J. 683,
686 (USAF Ct. Crim. App. 1995) (citing Manual for
Courts-Martial, United States, Analysis of the Military
Rules of Evidence, App. 22, p. A22-46 (1994 ed.)).
Evidence § 8-2(C), pp. 225-227 (2d ed. 1993)
(hereinafter Giannelli & Imwinkelried); 1 J. Strong,
McCormick on Evidence § 206, p. 909 (4th ed. 1992)
(hereinafter McCormick). Some studies have concluded
that polygraph tests overall are accurate and reliable.
See, e. g., S. Abrams, The Complete Polygraph
Handbook 190-191 (1989) (reporting the overall accuracy
rate from laboratory studies involving the common
"control question technique" polygraph to be "in the range
of 87 percent"). Others have found that polygraph tests
assess truthfulness significantly less accurately-that
scientific field studies suggest the accuracy rate of the
"control question technique" polygraph is "little better
than could be obtained by the toss of a coin," that is, 50
percent. See Iacono & Lykken, The Scientific Status of
Research on Polygraph Techniques: The Case Against
Polygraph Tests, in 1 Modern Scientific
Evidence, supra, § 14-5.3, at 629 (hereinafter Iacono &
Lykken).6
This lack of scientific consensus is reflected in the
disagreement among state and federal courts concerning
both the
6 The United States notes that in 1983 Congress' Office
of Technology Assessment evaluated all available
studies on the reliability of polygraphs and concluded
that" '[o]verall, the cumulative research evidence
suggests that when used in criminal investigations, the
polygraph test detects deception better than chance, but
with error rates that could be considered significant.'''
Brief for United States 21 (quoting U. S. Congress, Office
of Technology Assessment, Scientific Validity of
Polygraph Testing: A Research Review and Evaluation-A
Technical Memorandum 5 (OTATM-H-15, Nov. 1983)).
Respondent, however, contends current research shows
polygraph testing is reliable more than 90 percent of the
time. Brief for Respondent 22, and n. 19 (citing J. Matte,
Forensic Psychophysiology Using the Polygraph 121-129
(1996)). Even if the basic debate about the reliability of
polygraph technology itself were resolved, however,
there would still be controversy over the efficacy of
countermeasures, or deliberately adopted strategies that
a polygraph examinee can employ to provoke
physiological responses that will obscure accurate
readings and thus "fool" the polygraph machine and the
examiner. See, e. g., Iacono & Lykken § 14-3.0.
admissibility and the reliability of polygraph evidence.7
Although some Federal Courts of Appeals have
abandoned the per se rule excluding polygraph evidence,
leaving its admission or exclusion to the discretion of
district courts under Daubert, see, e. g., United
States v. Posado, 57 F.3d 428, 434 (CA5 1995); United
States v. Cordoba, 104 F.3d 225, 228 (CA9 1997), at
least one Federal Circuit has recently reaffirmed its per
se ban, see United States v. Sanchez, 118 F.3d 192, 197
(CA4 1997), and another recently noted that it has "not
decided whether polygraphy has reached a sufficient
state of reliability to be admissible." United
States v. Messina, 131 F.3d 36, 42 (CA2 1997). Most
States maintain per se rules excluding polygraph
evidence. See, e. g., State v. Porter, 241 Conn. 57, 92-
95, 698 A. 2d 739, 758-759 (1997); People v. Gard, 158
Ill. 2d 191, 202-204, 632 N. E. 2d 1026, 1032 (1994); In
re Odell, 672 A. 2d 457, 459 (RI 1996) (per curiam);
Perkins v. State, 902 S. W. 2d 88, 94-95 (Ct. App. Tex.
1995). New Mexico is unique in making polygraph
evidence generally admissible without the prior
stipulation of the parties and without significant
restriction. See N. M.
7 Until quite recently, federal and state courts were
uniform in categorically ruling polygraph evidence
inadmissible under the test set forth in Frye v. United
States, 293 F.1d 13 (CADC 1923), which held that
scientific evidence must gain the general acceptance of
the relevant expert community to be admissible.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.
S. 579 (1993), we held that Frye had been superseded
by the Federal Rules of Evidence and that expert
testimony could be admitted if the district court deemed it
both relevant and reliable.
Prior to Daubert, neither federal nor state courts found
any Sixth Amendment obstacle to the categorical rule.
See, e. g., Bashor v. Risley, 730 F.2d 1228,
1238 (CA9), cert. denied, 469 U. S. 838
(1984); People v. Price, 1 Cal. 4th 324, 419-420, 821 P.
2d 610, 663 (1991), cert. denied, 506 U. S. 851 (1992).
Nothing in Daubert foreclosed, as a constitutional
matter, per se exclusionary rules for certain types of
expert or scientific evidence. It would be an odd inversion
of our hierarchy of laws if altering or interpreting a rule of
evidence worked a corresponding change in the meaning
of the Constitution.
Opinion of THOMAS, J.
Rule Evid. § 11-707.8 Whatever their approach, state
and federal courts continue to express doubt about
whether such evidence is reliable. See, e. g., United
States v. Messina, supra, at 42; United States v. Posado,
supra, at 434; State v. Porter, supra, at 126-127, 698 A.
2d, at 774; Perkins v. State, supra, at 94; People v. Gard,
supra, at 202-204, 632 N. E. 2d, at 1032; In re Odell,
supra, at 459.
The approach taken by the President in adopting Rule
707-excluding polygraph evidence in all military trials-is a
rational and proportional means of advancing the
legitimate interest in barring unreliable evidence.
Although the degree of reliability of polygraph evidence
may depend upon a variety of identifiable factors, there is
simply no way to know in a particular case whether a
polygraph examiner's conclusion is accurate, because
certain doubts and uncertainties plague even the best
polygraph exams. Individual jurisdictions therefore may
reasonably reach differing conclusions as to whether
polygraph evidence should be admitted. We cannot say,
then, that presented with such widespread uncertainty,
the President acted arbitrarily or disproportionately in
promulgating a per se rule excluding all polygraph
evidence.
B Life Ins. Co. v. Ward, 140 U. S. 76, 88 (1891).
It is equally clear that Rule 707 serves a second
legitimate governmental interest: Preserving the court
members' core
8 Respondent argues that because the Government-and
in particular the Department of Defense-routinely uses
polygraph testing, the Government must consider
polygraphs reliable. Governmental use of polygraph
tests, however, is primarily in the field of personnel
screening, and to a lesser extent as a tool in criminal and
intelligence investigations, but not as evidence at trials.
See Brief for United States 34, n. 17; Barland, The
Polygraph Test in the USA and Elsewhere, in The
Polygraph Test 76 (A. Gale ed. 1988). Such limited, out
of court uses of polygraph techniques obviously differ in
character from, and carry less severe consequences
than, the use of polygraphs as evidence in a criminal trial.
They do not establish the reliability of polygraphs as trial
evidence, and they do not invalidate reliability as a valid
concern supporting Rule 707's categorical ban.
function of making credibility determinations in criminal
trials. A fundamental premise of our criminal trial system
is that "the jury is the lie detector." United
States v. Barnard, 490 F.2d 907, 912 (CA9 1973)
(emphasis added), cert. denied, 416 U. S. 959 (1974).
Determining the weight and credibility of witness
testimony, therefore, has long been held to be the "part of
every case [that] belongs to the jury, who are presumed
to be fitted for it by their natural intelligence and their
practical knowledge of men and the ways of men." Aetna
By its very nature, polygraph evidence may diminish the
jury's role in making credibility determinations. The
common form of polygraph test measures a variety of
physiological responses to a set of questions asked by
the examiner, who then interprets these physiological
correlates of anxiety and offers an opinion to the jury
about whether the witness-often, as in this case, the
accused-was deceptive in answering questions about the
very matters at issue in the trial. See 1 McCormick §
206.9 Unlike other expert witnesses who testify about
factual matters outside the jurors' knowledge, such as the
analysis of fingerprints, ballistics, or DNA found at a
crime scene, a polygraph expert can supply the jury only
with another opinion, in addition to its own, about whether
the witness was telling the truth. Jurisdictions, in
promulgating rules of evidence, may legitimately be
concerned about the risk that juries will give excessive
9 The examiner interprets various physiological
responses of the examinee, including blood pressure,
perspiration, and respiration, while asking a series of
questions, commonly in three categories: direct
accusatory questions concerning the matter under
investigation, irrelevant or neutral questions, and more
general "control" questions concerning wrongdoing by
the subject in general. The examiner forms an opinion of
the subject's truthfulness by comparing the physiological
reactions to each set of questions. See generally
Giannelli & lmwinkelried 219-222; Honts & Quick, The
Polygraph in 1995: Progress in Science and the Law, 71
N. D. L. Rev. 987, 990-992 (1995).
Opinion of THOMAS, J.
weight to the opinions of a polygrapher, clothed as they
are in scientific expertise and at times offering, as in
respondent's case, a conclusion about the ultimate issue
in the trial. Such jurisdictions may legitimately determine
that the aura of infallibility attending polygraph evidence
can lead jurors to abandon their duty to assess credibility
and guilt. Those jurisdictions may also take into account
the fact that a judge cannot determine, when ruling on a
motion to admit polygraph evidence, whether a particular
polygraph expert is likely to influence the jury unduly. For
these reasons, the President is within his constitutional
prerogative to promulgate a per se rule that simply
excludes all such evidence.
c The three of our precedents upon which the Court of
A third legitimate interest served by Rule 707 is avoiding
litigation over issues other than the guilt or innocence of
the accused. Such collateral litigation prolongs criminal
trials and threatens to distract the jury from its central
function of determining guilt or innocence. Allowing
proffers of polygraph evidence would inevitably entail
assessments of such issues as whether the test and
control questions were appropriate, whether a particular
polygraph examiner was qualified and had properly
interpreted the physiological responses, and whether
other factors such as countermeasures employed by the
examinee had distorted the exam results. Such
assessments would be required in each and every
case.10 It thus offends no constitutional principle for the
President to conclude that a per se rule excluding all
polygraph evidence is appropriate. Because litigation
over the admissibility of polygraph evidence is by its very
nature col-
10 Although some of this litigation could take place
outside the presence of the jury, at the very least a
foundation must be laid for the jury to assess the
qualifications and skill of the polygrapher and the validity
of the exam, and significant cross-examination could
occur on these issues.
lateral, a per se rule prohibiting its admission is not an
arbitrary or disproportionate means of avoiding itY
D
Appeals principally relied, Rock v. Arkansas,
Washington v. Texas, and Chambers v. Mississippi, do
not support a right to introduce polygraph evidence, even
in very narrow circumstances. The exclusions of
evidence that we declared unconstitutional in those
cases significantly undermined fundamental elements of
the defendant's defense. Such is not the case here.
In Rock, the defendant, accused of a killing to which she
was the only eyewitness, was allegedly able to remember
the facts of the killing only after having her memory
hypnotically refreshed. See Rock v. Arkansas, 483 U. S.,
at 46. Because Arkansas excluded all hypnotically
refreshed testimony, the defendant was unable to testify
about certain relevant facts, including whether the killing
had been accidental. See id., at 47-49. In holding that the
exclusion of this evidence violated the defendant's "right
to present a defense," we noted that the rule deprived the
jury of the testimony of the only witness who was at the
scene and had firsthand knowledge of the facts. See id.,
at 57. Moreover, the rule infringed upon the defendant's
interest in testifying in her own defense-an interest that
we deemed particularly significant, as it is the defendant
who is the target of any crimi-
11 Although the Court of Appeals stated that it had
"merely remove[d] the obstacle of the per se rule against
admissibility" of polygraph evidence in cases where the
accused wishes to proffer an exculpatory polygraph to
rebut an attack on his credibility, 44 M. J. 442, 446
(1996), and respondent thus implicitly argues that the
Constitution would require collaterallitigation only in such
cases, we cannot see a principled justification whereby a
right derived from the Constitution could be so narrowly
contained.
nal prosecution. See id., at 52. For this reason, we stated
that a defendant ought to be allowed "to present his own
version of events in his own words." Ibid.
In Washington, the statutes involved prevented
codefendants or coparticipants in a crime from testifying
for one another and thus precluded the defendant from
introducing his accomplice's testimony that the
accomplice had in fact committed the crime.
See Washington v. Texas, 388 U. S., at 16-17. In
reversing Washington's conviction, we held that the Sixth
Amendment was violated because "the State arbitrarily
denied [the defendant] the right to put on the stand a
witness who was physically and mentally capable of
testifying to events that he had personally
observed." Id., at 23.12
In Chambers, we found a due process violation in the
combined application of Mississippi's common-law
"voucher rule," which prevented a party from impeaching
his own witness, and its hearsay rule that excluded the
testimony of three persons to whom that witness had
confessed. See Chambers v. Mississippi, 410 U. S., at
302. Chambers specifically confined its holding to the
"facts and circumstances" presented in that case; we
thus stressed that the ruling did not "signal any
diminution in the respect traditionally accorded to the
States in the establishment and implementation of their
own criminal trial rules and procedures." Id., at 302-
303. Chambers therefore does not stand for the
proposition that the defendant is denied a fair opportunity
to defend himself whenever a state or federal rule
excludes favorable evidence.
Rock, Washington, and Chambers do not require that
Rule 707 be invalidated, because, unlike the evidentiary
rules at issue in those cases, Rule 707 does not implicate
any signifi-
12 In addition, we noted that the State of Texas could
advance no legitimate interests in support of the
evidentiary rules at issue, and those rules burdened only
the defense and not the prosecution. See 388 U. S., at
2223. Rule 707 suffers from neither of these defects.
cant interest of the accused. Here, the court members
heard all the relevant details of the charged offense from
the perspective of the accused, and the Rule did not
preclude him from introducing any factual evidence.13
Rather, respondent was barred merely from introducing
expert opinion testimony to bolster his own credibility.
Moreover, in contrast to the rule at issue in Rock, Rule
707 did not prohibit respondent from testifying on his own
behalf; he freely exercised his choice to convey his
version of the facts to the court-martial members. We
therefore cannot conclude that respondent's defense was
significantly impaired by the exclusion of polygraph
evidence. Rule 707 is thus constitutional under our
precedents.
***
For the foregoing reasons, Military Rule of Evidence 707
does not unconstitutionally abridge the right to present a
defense. The judgment of the Court of Appeals is
reversed.
It is so ordered.
13 The dissent suggests, post, at 331, that polygraph
results constitute "factual evidence." The raw results of a
polygraph exam-the subject's pulse, respiration, and
perspiration rates-may be factual data, but these are not
introduced at trial, and even if they were, they would not
be "facts" about the alleged crime at hand. Rather, the
evidence introduced is the expert opinion testimony of
the polygrapher about whether the subject was truthful or
deceptive in answering questions about the alleged
crime. A per se rule excluding polygraph results therefore
does not prevent an accused-just as it did not prevent
respondent here-from introducing factual evidence or
testimony about the crime itself, such as alibi witness
testimony, see ibid. For the same reasons, an expert
polygrapher's interpretation of polygraph results is not
evidence of "'the accused's whole conduct,' " see post, at
336, to which Dean Wigmore referred. It is not evidence
of the "'accused's ... conduct'" at all, much less "conduct"
concerning the actual crime at issue. It is merely the
opinion of a witness with no knowledge about any of the
facts surrounding the alleged crime, concerning whether
the defendant spoke truthfully or deceptively on another
occasion.
Opinion of KENNEDY, J.
JUSTICE KENNEDY, with whom JUSTICE O'CONNOR,
JusTICE GINSBURG, and JUSTICE BREYER join,
concurring in part and concurring in the judgment.
I join Parts I, II-A, and II-D of the opinion of the Court. In
my view it should have been sufficient to decide this case
to observe, as the principal opinion does, that various
courts and jurisdictions "may reasonably reach differing
conclusions as to whether polygraph evidence should be
admitted." Ante, at 312. The continuing, good-faith
disagreement among experts and courts on the subject
of polygraph reliability counsels against our invalidating
a per se exclusion of polygraph results or of the fact an
accused has taken or refused to take a polygraph
examination. If we were to accept respondent's position,
of course, our holding would bind state courts, as well as
military and federal courts. Given the ongoing debate
about polygraphs, I agree the rule of exclusion is not so
arbitrary or disproportionate that it is unconstitutional.
I doubt, though, that the rule of per se exclusion is wise,
and some later case might present a more compelling
case for introduction of the testimony than this one does.
Though the considerable discretion given to the trial court
in admitting or excluding scientific evidence is not a
constitutional mandate, see Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U. S. 579, 587 (1993), there is
some tension between that rule and our holding today.
And, as JUSTICE STEVENS points out, there is much
inconsistency between the Government's extensive use
of polygraphs to make vital security determinations and
the argument it makes here, stressing the inaccuracy of
these tests.
With all respect, moreover, it seems the principal opinion
overreaches when it rests its holding on the additional
ground that the jury's role in making credibility
determinations is diminished when it hears polygraph
evidence. I am in substantial agreement with JUSTICE
STEVENS' observation that the argument demeans and
mistakes the role and competence of jurors in deciding
the factual question of guilt or innocence. Post, at 336-
337. In the last analysis the principal opinion says it is
unwise to allow the jury to hear "a conclusion about the
ultimate issue in the trial." Ante, at 314. I had thought this
tired argument had long since been given its deserved
repose as a categorical rule of exclusion. Rule 704(a) of
the Federal Rules of Evidence states:
"Except as provided in subdivision (b), testimony in the
form of an opinion or inference otherwise admissible is
not objectionable because it embraces an ultimate issue
to be decided by the trier of fact." The Advisory
Committee's Notes state:
"The older cases often contained strictures against
allowing witnesses to express opinions upon ultimate
issues, as a particular aspect of the rule against opinions.
The rule was unduly restrictive, difficult of application,
and generally served only to deprive the trier of fact of
useful information. 7 Wigmore §§ 1920, 1921;
McCormick § 12. The basis usually assigned for the rule,
to prevent the witness from 'usurping the province of the
jury,' is aptly characterized as 'empty rhetoric.' 7 Wigmore
§ 1920, p. 17." Advisory Committee's Notes on Fed. Rule
Evid. 704, 28 U. s. C., p. 888.
The principal opinion is made less convincing by its
contradicting the rationale of Rule 704 and the well
considered reasons the Advisory Committee recited in
support of its adoption.
The attempt to revive this outmoded theory is especially
inapt in the context of the military justice system; for the
one narrow exception to the abolition of the ultimate
issue rule still surviving in the Federal Rules of Evidence
has been omitted from the corresponding rule adopted
for the military. The ultimate issue exception in the
Federal Rules of Evidence is as follows:
"No expert witness testifying with respect to the mental
state or condition of a defendant in a criminal case may
state an opinion or inference as to whether the defendant
did or did not have the mental state or condition
constituting an element of the crime charged or of a
defense thereto. Such ultimate issues are matters for the
trier of fact alone." Fed. Rule Evid. 704(b).
The drafting committee for the Military Rules of Evidence
renounced even this remnant. It said: "The statutory
qualifications for military court members reduce the risk
that military court members will be unduly influenced by
the presentation of ultimate opinion testimony from
psychiatric experts." Manual for Courts-Martial, United
States, Analysis of the Military Rules of Evidence, App.
22, p. A22-48 (1995 ed.). Any supposed need to protect
the role of the finder of fact is diminished even further by
this specific acknowledgment that members of military
courts are not likely to give excessive weight to opinions
of experts or otherwise to be misled or confused by their
testimony. Neither in the federal system nor in the military
courts, then, is it convincing to say that polygraph test
results should be excluded because of some lingering
concern about usurping the jury's responsibility to decide
ultimate issues.
JUSTICE STEVENS, dissenting.
The United States Court of Appeals for the Armed Forces
held that the President violated the Constitution in June
1991, when he promulgated Rule 707 of the Military
Rules of Evidence. Had I been a member of that court, I
would not have decided that question without first
requiring the parties to brief and argue the antecedent
question whether Rule 707 violates Article 36(a) of the
Uniform Code of Military Justice, 10 U. S. C. § 836(a). As
presently advised, I am persuaded that the Rule does
violate the statute and should be held invalid for that
reason. I also agree with the Court of Appeals that the
Rule is unconstitutional. This Court's contrary holding
rests on a serious undervaluation of the importance of
the citizen's constitutional right to present a defense to a
criminal charge and an unrealistic appraisal of the
importance of the governmental interests that undergird
the Rule. Before discussing the constitutional issue, I
shall comment briefly on the statutory question.
I
Rule 707 is a blanket rule of exclusion.1 No matter how
reliable and how probative the results of a polygraph test
may be, Rule 707 categorically denies the defendant any
opportunity to persuade the court that the evidence
should be received for any purpose. Indeed, even if the
parties stipulate in advance that the results of a lie
detector test may be admitted, the Rule requires
exclusion.
The principal charge against the respondent in this case
was that he had knowingly used methamphetamine. His
principal defense was "innocent ingestion"; even if the
urinalysis test conducted on April 7, 1992, correctly
indicated that he did ingest the substance, he claims to
have been unaware of that fact. The results of the lie
detector test conducted three days later, if accurate,
constitute factual evidence that his physical condition at
that time was consistent with the theory of his defense
and inconsistent with the theory of the prosecution. The
results were also relevant because they tended to
confirm the credibility of his testimony. Under Rule 707,
even if the results of the polygraph test were more
reliable than the results of the urinalysis, the weaker
evidence is admissible and the stronger evidence is
inadmissible.
Under the now discredited reasoning in a case decided
75 years ago, Frye v. United States, 54 App. D. C. 46,
293
1 Rule 707 states, in relevant part:
"Notwithstanding any other provision of law, the results of
a polygraph examination, the opinion of a polygraph
examiner, or any reference to an offer to take, failure to
take, or taking of a polygraph examination, shall not be
admitted into evidence." Mil. Rule Evid. 707(a).
F. 1013 (1923), that anomalous result would also have
been reached in nonmilitary cases tried in the federal
courts. In recent years, however, we have not only
repudiated Frye's general approach to scientific
evidence, but the federal courts have also been engaged
in the process of rejecting the oncepopular view that all
lie detector evidence should be categorically
inadmissible.2 Well reasoned opinions are concluding,
consistently with this Court's decisions
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.
S. 579 (1993), and General Electric Co. v. Joiner, 522 U.
S. 136 (1997), that the federal rules wisely allow district
judges to exercise broad discretion when evaluating the
admissibility of scientific evidence.3 Those opinions
correctly observe that the rules of evidence generally
recognized in the trial of civil and criminal cases in the
federal courts do not contain any blanket prohibition
against the admissibility of polygraph evidence.
2 "There is no question that in recent years polygraph
testing has gained increasingly widespread acceptance
as a useful and reliable scientific tool. Because of the
advances that have been achieved in the field which
have led to the greater use of polygraph examination,
coupled with a lack of evidence that juries are unduly
swayed by polygraph evidence, we agree with those
courts which have found that a per se rule disallowing
polygraph evidence is no longer warranted .... Thus, we
believe the best approach in this area is one which
balances the need to admit all relevant and reliable
evidence against the danger that the admission of the
evidence for a given purpose will be unfairly
prejudicial." United States v. Piccinonna, 885 F.2d 1529,
1535 (CAll 1989). "[W]e do not now hold that polygraph
examinations are scientifically valid or that they will
always assist the trier of fact, in this or any other
individual case. We merely remove the obstacle of the
per se rule against admissibility, which was based on
antiquated concepts about the technical ability of the
polygraph and legal precepts that have been expressly
overruled by the Supreme Court." United
States v. Posado, 57 F.3d 428, 434 (CA5 1995).
3 "The per se ... rule excluding unstipulated polygraph
evidence is inconsistent with the 'flexible inquiry'
assigned to the trial judge by Daubert. This is particularly
evident because Frye, which was overruled
by Daubert, involved the admissibility of polygraph
evidence." United States v. Cordoba, 104 F.3d 225,
227 (CA9 1997).
In accord with the modern trend of decisions on this
admissibility issue, in 1987 the Court of Military Appeals
held that an accused was "entitled to attempt to lay" the
foundation for admission of favorable polygraph
evidence. United States v. Gipson, 24 M. J. 246, 253
(1987). The President responded to Gipson by adopting
Rule 707. The governing statute authorized him to
promulgate evidentiary rules "which shall, so far as he
considers practicable, apply the principles of law and the
rules of evidence generally recognized in the trial of
criminal cases in the United States district courts." 10 U.
S. C. § 836(a).4 Thus, if there are military concerns that
warrant a special rule for military tribunals, the statute
gives him ample authority to promulgate special rules
that take such concerns into account.
Rule 707 has no counterpart in either the Federal Rules
of Evidence or the Federal Rules of Criminal Procedure.
Moreover, to the extent that the use of the lie detector
plays a special role in the military establishment, military
practices are more favorable to a rule of admissibility
than is the less structured use of lie detectors in the
civilian sector of our society. That is so because the
military carefully regulates the administration of
polygraph tests to ensure reliable results. The military
maintains "very stringent standards for polygraph
examiners" 5 and has established its own Poly-
4 "Pretrial, trial, and post-trial procedures, including
modes of proof, for cases arising under this chapter
triable in courts-martial, military commissions and other
military tribunals, and procedures for courts of inquiry,
may be prescribed by the President by regulations which
shall, so far as he considers practicable, apply the
principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United
States district courts, but which may not be contrary to or
inconsistent with this chapter." 10 U. S. C. § 836(a).
5 According to the Department of Defense's 1996 Report
to Congress:
"The Department of Defense maintains very stringent
standards for polygraph examiners. The Department of
Defense Polygraph Institute's basic polygraph program is
the only program known to base its curriculum on
forensic psychophysiology, and conceptual, abstract, and
applied knowl-
graph Institute, which is "generally considered to be the
best training facility for polygraph examiners in the United
States." 6 The military has administered hundreds of
thousands of such tests and routinely uses their results
for a wide variety of official decisions.7
edge that meet the requirements of a master's degree-
level of study. Candidates selected for the Department of
Defense polygraph positions must meet the following
minimum requirements:
"1. Be a United States citizen. "2. Be at least 25 years of
age.
"3. Be a graduate of an accredited four-year college or
have equivalent experience that demonstrates the ability
to master graduate-level academic courses.
"4. Have two years of experience as an investigator with
a Federal or other law enforcement agency ....
"5. Be of high moral character and sound emotional
temperament, as confirmed by a background
investigation.
"6. Complete a Department of Defense-approved course
of polygraph instruction.
"7. Be adjudged suitable for the position after being
administered a polygraph examination designed to
ensure that the candidate realizes, and is sensitive to, the
personal impact of such examinations.
"All federal polygraph examiners receive their basic
polygraph training at the Department of Defense
Polygraph Institute. After completing the basic polygraph
training, DoD personnel must serve an internship
consisting of a minimum of six months on-the-job-training
and conduct at least 25 polygraph examinations under
the supervision of a certified polygraph examiner before
being certified as a Department of Defense polygraph
examiner. In addition, DoD polygraph examiners are
required to complete 80 hours of continuing education
every two years." Department of Defense Polygraph
Program, Annual Polygraph Report to Congress, Fiscal
Year 1996, pp. 14-15; see also Yankee, The Current
Status of Research in Forensic Psychophysiology and Its
Application in the Psychophysiological Detection of
Deception, 40 J. Forensic Sciences 63 (1995).
6 Honts & Perry, Polygraph Admissibility: Changes and
Challenges, 16 Law and Human Behavior 357, 359, n. 1
(1992) (hereinafter Honts & Perry).
7Between 1981 and 1997, the Department of Defense
conducted over 400,000 polygraph examinations to
resolve issues arising in counterintelligence, security, and
criminal investigations. Department of Defense Polygraph
Program, Annual Polygraph Report to Congress, Fiscal
Year
The stated reasons for the adoption of Rule 707 do not
rely on any special military concern. They merely invoke
three interests: (1) the interest in excluding unreliable
evidence; (2) the interest in protecting the trier of fact
from being misled by an unwarranted assumption that the
polygraph evidence has "an aura of near infallibility"; and
(3) the interest in avoiding collateral debates about the
admissibility of particular test results.
It seems clear that those interests pose less serious
concerns in the military than in the civilian context.
Disputes about the qualifications of the examiners, the
equipment, and the testing procedures should seldom
arise with respect to the tests conducted by the military.
Moreover, there surely is no reason to assume that
military personnel who perform the factfinding function
are less competent than ordinary jurors to assess the
reliability of particular results, or their relevance to the
issues.8 Thus, there is no identifiable military concern
that justifies the President's promulgation of a special
military rule that is more burdensome to the accused in
military trials than the evidentiary rules applicable to the
trial of civilians.
It, therefore, seems fairly clear that Rule 707 does not
comply with the statute. I do not rest on this ground,
however, because briefing might persuade me to change
my views, and because the Court has decided only the
constitutional question.
II
The Court's opinion barely acknowledges that a person
accused of a crime has a constitutional right to present a
1997, p. 1; id., Fiscal Year 1996, p. 1; id., Fiscal Year
1995, p. 1; id., Fiscal Year 1994, p. 1; id., Fiscal Year
1993, App. A; id., Fiscal Year 1992, App. A; id., Fiscal
Year 1991, App. A-I (reporting information for 1981-
1991).
8 When the members of the court-martial are officers, as
was true in this case, they typically have at least a
college degree as well as significant military service. See
10 U. S. C. § 825(d)(2); see also, e. g., United
States v. Carter, 22 M. J. 771, 776 (A. C. M. R. 1986).
defense. It is not necessary to point to "any particular
language in the Sixth Amendment," ante, at 307, to
support the conclusion that the right is firmly established.
It is, however, appropriate to comment on the importance
of that right before discussing the three interests that the
Government relies upon to justify Rule 707.
The Sixth Amendment provides that "the accused shall
enjoy the right ... to have compulsory process for
obtaining witnesses in his favor." Because this right "is an
essential attribute of the adversary system itself," we
have repeatedly stated that few rights "are more
fundamental than that of an accused to present
witnesses in his own defense." 9 According to Joseph
Story, that provision was included in the Bill of Rights in
reaction to a notorious common-law rule categorically
excluding defense evidence in treason and felony
cases.10 Our holding in Washington v. Texas, 388 U. S.
14(1967), that this right is applicable to the States, rested
on the premises that it "is in plain terms the right to
present a defense" and that it "is a fundamental element
of due proc-
9 "Few rights are more fundamental than that of an
accused to present witnesses in his own defense, see, e.
g., Chambers v. Mississippi, 410 U. S. 284, 302 (1973).
Indeed, this right is an essential attribute of the adversary
system itself .... The right to compel a witness' presence
in the courtroom could not protect the integrity of the
adversary process if it did not embrace the right to have
the witness' testimony heard by the trier of fact. The right
to offer testimony is thus grounded in the Sixth
Amendment .... " Taylor v. Illinois, 484 U. S. 400, 408-409
(1988).
10 "Joseph Story, in his famous Commentaries on the
Constitution of the United States, observed that the right
to compulsory process was included in the Bill of Rights
in reaction to the notorious common-law rule that in
cases of treason or felony the accused was not allowed
to introduce witnesses in his defense at all. Although the
absolute prohibition of witnesses for the defense had
been abolished in England by statute before 1787, the
Framers of the Constitution felt it necessary specifically
to provide that defendants in criminal cases should be
provided the means of obtaining witnesses so that their
own evidence, as well as the prosecution's, might be
evaluated by the jury." Washington v. Texas, 388 U. S.
14, 19-20 (1967) (footnotes omitted).
ess of law." 11 Consistent with the history of the
provision, the Court in that case held that a state rule of
evidence that excluded "whole categories" of testimony
on the basis of a presumption of unreliability was
unconstitutional.12
The blanket rule of inadmissibility held invalid
in Washington v. Texas covered the testimony of alleged
accomplices. Both before and after that decision, the
Court has recognized the potential injustice produced by
rules that exclude entire categories of relevant evidence
that is potentially unreliable. At common law interested
parties such as defendants,13 their spouses,14 and their
co-conspirators 15 were not competent
11 "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." Id., at 19.
12 "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.
"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." Id., at 22.
13 "It is familiar knowledge that the old common law
carefully excluded from the witness stand parties to the
record, and those who were interested in the result; and
this rule extended to both civil and criminal cases. Fear of
perjury was the reason for the rule." Benson v. United
States, 146 U. S. 325, 335 (1892).
14 "The common-law rule, accepted at an early date as
controlling in this country, was that husband and wife
were incompetent as witnesses for or against each other
....
"The Court recognized that the basic reason underlying
thEe] exclusion [of one spouse's testimony on behalf of
the other] had been the practice of disqualifying
witnesses with a personal interest in the outcome of a
case. Widespread disqualifications because of interest,
however, had long since
[Footnote 15 is on p. 328J
witnesses. "Nor were those named the only grounds of
exclusion from the witness stand; conviction of crime,
want of religious belief, and other matters were held
sufficient. Indeed, the theory of the common law was to
admit to the witness stand only those presumably honest,
appreciating the sanctity of an oath, unaffected as a party
by the result, and free from any of the temptations of
interest. The courts were afraid to trust the intelligence of
jurors." Benson v. United States, 146 U. S. 325, 336
(1892). And, of course, under the regime established
by Frye v. United States, scientific evidence was
inadmissible unless it met a stringent "general
acceptance" test. Over the years, with respect to
category after category, strict rules of exclusion have
been replaced by rules that broaden the discretion of trial
judges to admit potentially unreliable evidence and to
allow properly instructed juries to evaluate its weight.
While that trend has included both rulemaking and
nonconstitutional judicial decisions, the direction of the
trend has been consistent and it has been manifested in
constitutional holdings as well.
Commenting on the trend that had followed the decision
in Benson, the Court in 1918 observed that in the
"years which have elapsed since the decision of
the Benson Case, the disposition of courts and of
legislative bodies to remove disabilities from witnesses
has continued, as that decision shows it had been going
forward before, under dominance of the conviction of our
time that the
been abolished both in this country and in England in
accordance with the modern trend which permitted
interested witnesses to testify and left it for the jury to
assess their credibility. Certainly, since defendants were
uniformly allowed to testify in their own behalf, there was
no longer a good reason to prevent them from using their
spouses as witnesses. With the original reason for
barring favorable testimony of spouses gone the Court
concluded that this aspect of the old rule should go
too." Hawkins
15 See Washington v. Texas, 388 U. S., at 20-21.
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, rather than by
rejecting witnesses as incompetent, with the result that
this principle has come to be widely, almost universally, provisions of the Sixth Amendment'). We break no new
accepted in this country and in Great ground in observing that an essential component of
Britain." Rosen v. United States, 245 U. S. 467, 471. procedural fairness is an opportunity to be heard. In re
Oliver, 333 U. S. 257, 273
See also Funk v. United States, 290 U. S. 371, 377-378 (1948); Grannis v. Ordean, 234 U. S. 385, 394 (1914).
(1933). It was in a case involving the disqualification of That opportunity would be an empty one if the State were
spousal testimony that Justice Stewart stated: "Any rule permitted to exclude competent, reliable evidence
that impedes the discovery of truth in a court of law
impedes as well the doing of justice." Hawkins v. United (1973), we concluded that "where constitutional rights
States, 358 U. S. 74, 81 (1958) (concurring opinion). directly affecting the ascertainment of guilt are implicated,
the hearsay rule may not be applied mechanistically to
State evidentiary rules may so seriously impede the defeat the ends of justice." 17 As the Court notes today,
discovery of truth, "as well as the doing of justice," that restrictions on the "defendant's right to present relevant
they preclude the "meaningful opportunity to present a evidence," ante, at 308, must comply with the admonition
complete defense" that is guaranteed by the in Rock v. Arkansas, 483 U. S. 44, 56 (1987), that they
Constitution, Crane v. Kentucky, 476 U. S. 683, 690 "may not be arbitrary or disproportionate to the purposes
(1986) (internal quotation marks omitted).16 they are designed to serve." Applying that admonition to
In Chambers v. Mississippi, 410 U. S. 284, 302 Arkansas' blanket rule prohibiting the admission of
hypnotically refreshed testimony, we concluded that a
16 "Whether rooted directly in the Due Process Clause of "State's legitimate interest in barring unreliable evidence
the Fourteenth does not extend to per se exclusions that may be reliable
Amendment, Chambers v. Mississippi, [410 U. S. in an individual case." Id., at 61. That statement of
284 (1973)], or in the Compulsory Process or constitutional law is directly relevant to this case.
Confrontation clauses of the Sixth
Amendment, Washington v. Texas, 388 U. S. 14, 23 bearing on the credibility of a confession when such
(1967); Davis v. Alaska, 415 U. S. 308 (1974), the evidence is central to the defendant's claim of innocence.
Constitution guarantees criminal defendants 'a In the absence of any valid state justification, exclusion of
meaningful opportunity to present a complete this kind of exculpatory evidence deprives a defendant of
defense.' California v. Trombetta, 467 U. S. [479,485 the basic right to have the prosecutor's case encounter
(1984)]; cf. Strickland v. Washington, 466 U. S. 668, 684- and 'survive the crucible of meaningful adversarial
685 (1984) ('The Constitution guarantees a fair trial testing.' United States v. Cronic, 466 U. S. 648, 656
through the Due Process Clauses, but it defines the basic (1984). See also Washington v. Texas, supra, at 22-
elements of a fair trial largely through the several 23." Crane v. Kentucky, 476 U. S., at 690-691.
17 "Few rights are more fundamental than that of an
accused to present witnesses in his own defense. E. g.,
Webb v. Texas, 409 U. S.
95 (1972); Washington v. Texas, 388 U. S. 14, 19
(1967); In re Oliver, 333 U. S. 257 (1948). In the exercise
of this right, the accused, as is required of the State,
must comply with established rules of procedure and
evidence designed to assure both fairness and reliability
in the ascertainment of guilt and innocence. Although
perhaps no rule of evidence has been more respected or
more frequently applied in jury trials than that applicable
to the exclusion of hearsay, exceptions tailored to allow
the introduction of evidence which in fact is likely to be
trustworthy have long existed. The testimony rejected by
the trial court here bore persuasive assurances of
trustworthiness and thus was well within the basic
rationale of the exception for declarations against
interest. That testimony also was critical to Chambers'
defense. In these circumstances, where constitutional
rights directly affecting the ascertainment of guilt are
implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of
justice." Chambers v. Mississippi, 410 U. S., at 302.
III
The constitutional requirement that a blanket exclusion of
potentially unreliable evidence must be proportionate to
the purposes served by the rule obviously makes it
necessary to evaluate the interests on both sides of the
balance. Today the Court all but ignores the strength of
the defendant's interest in having polygraph evidence
admitted in certain cases. As the facts of this case
illustrate, the Court is quite wrong in assuming that the
impact of Rule 707 on respondent's defense was not
significant because it did not preclude the introduction of
any "factual evidence" or prevent him from conveying "his
version of the facts to the court-martial
members." Ante, at 317. Under such reasoning, a rule
that excluded the testimony of alibi witnesses would not
be significant as long as the defendant is free to testify
himself. But given the defendant's strong interest in the
outcomean interest that was sufficient to make his
testimony presumptively untrustworthy and therefore
inadmissible at common law-his uncorroborated
testimony is certain to be less persuasive than that of a
third-party witness. A rule that bars him "from introducing
expert opinion testimony to bolster his own credibility,"
ibid., unquestionably impairs any "meaningful opportunity
to present a complete defense"; indeed, it is sure to be
outcome determinative in many cases.
Moreover, in this case the results of the polygraph test,
taken just three days after the urinalysis, constitute
independent factual evidence that is not otherwise
available and that strongly supports his defense of
"innocent ingestion." Just as flight or other evidence of
"consciousness of guilt" may sometimes be relevant, on
some occasions evidence of "consciousness of
innocence" may also be relevant to the central issue at
trial. Both the answers to the questions propounded by
the examiner, and the physical manifestations produced
by those utterances, were probative of an innocent state
of mind shortly after he ingested the drugs. In Dean
Wigmore's view, both "conduct" and "utterances" may
con-
stitute factual evidence of a "consciousness of
innocence." 18 As the Second Circuit has held, when
there is a serious factual dispute over the "basic defense
[that defendant] was unaware of any criminal
wrongdoing," evidence of his innocent state of mind is
"critical to a fair adjudication of criminal charges." 19 The
exclusion of the test results in this case cannot be fairly
equated with a ruling that merely prevented the
defendant from encumbering the record with cumulative
evidence. Because the Rule may well have affected the
outcome of the trial, it unquestionably "infringed upon a
weighty interest of the accused." Ante, at 308.
The question, then, is whether the three interests on
which the Government relies are powerful enough to
support a categorical rule excluding the results of all
polygraph tests no matter how unfair such a rule may be
in particular cases.
18 "Moreover, there are other principles by which a
defendant may occasionally avail himself of conduct as
evidence in his favor-in particular, of conduct indicating
consciousness of innocence, ... of utterances asserting
his innocence ... , and, in sedition charges, of conduct
indicating a loyal state of mind ... " lA J. Wigmore,
Evidence § 56.1, p. 1180 (Tillers rev.ed. 1983); see
United States v. Reifsteck, 841 F.2d 701, 705 (CA6
1988).
19 "Mariotta's basic defense was that he was unaware of
any criminal wrongdoing at Wedtech, that he was an
innocent victim of the machinations of the sophisticated
businessmen whom he had brought into the company to
handle its financial affairs. That defense was seriously in
issue as to most of the charges against him, drawing
considerable support from the evidence ....
''With the credibility of the accusations about Mariotta's
knowledge of wrongdoing seriously challenged, evidence
of his denial of such knowledge in response to an
opportunity to obtain immunity by admitting it and
implicating others became highly significant to a fair
presentation of his defense ....
''Where evidence of a defendant's innocent state of mind,
critical to a fair adjudication of criminal charges, is
excluded, we have not hesitated to order a new
trial." United States v. Biaggi, 909 F.2d 662, 691-
692 (CA2 1990); see also United States v. Bucur, 194
F.2d 297 (CA7 1952); Herman v. United States, 48 F.2d
479 (CA5 1931).
Reliability
There are a host of studies that place the reliability of
polygraph tests at 85% to 90%.20 While critics of the
polygraph argue that accuracy is much lower, even the
studies cited by the critics place polygraph accuracy at
70%.21 Moreover, to the extent that the polygraph errs,
studies have repeatedly shown that the polygraph is
more likely to find innocent people guilty than vice
versa.22 Thus, exculpatory polygraphs-like the one in
this case-are likely to be more reliable than inculpatory
ones.
Of course, within the broad category of lie detector
evidence, there may be a wide variation in both the
validity and the relevance 23 of particular test results.
Questions about the examiner's integrity, independence,
choice of questions, or training in the detection of
deliberate attempts to provoke misleading physiological
responses may justify exclusion of
20 Raskin, Honts, & Kircher, The Scientific Status of
Research on Polygraph Techniques: The Case for
Polygraph Tests, in 1 Modern Scientific Evidence 572 (D.
Faigman, D. Kaye, M. Saks, & J. Sanders eds. 1997)
(hereinafter Faigman) (compiling eight laboratory studies
that place mean accuracy at approximately 90%); id., at
575 (compiling four field studies, scored by independent
examiners, that place mean accuracy at 90.5%); Raskin,
Honts, & Kircher, A Response to Professors Iacono and
Lykken, in Faigman 627 (compiling six field studies,
scored by original examiners, that place mean accuracy
at 97.5%); Abrams, The Complete Polygraph Handbook
190-191 (1989) (compiling 13 laboratory studies that,
excluding inconclusive results, place mean accuracy at
87%).
21 Iacono & Lykken, The Scientific Status of Research
on Polygraph Techniques: The Case Against Polygraph
Tests, in Faigman 608 (compiling three studies that place
mean accuracy at 70%).
22 E. g., Iacono & Lykken, The Case Against Polygraph
Tests, in Faigman 608-609; Raskin, Honts, & Kircher, A
Response to Professors Iacono and Lykken, in Faigman
621; Honts & Perry 362; Abrams, The Complete
Polygraph Handbook, at 187-188, 191.
23 See, e. g., Judge Gonzalez's careful attention to the
relevance inquiry in the proceedings on remand from the
Court of Appeals decision in Piccinonna. 729 F. Supp.
1336 (SD Fla. 1990).
specific evidence. But such questions are properly
addressed in adversary proceedings; they fall far short of
justifying a blanket exclusion of this type of expert
testimony.
There is no legal requirement that expert testimony must
satisfy a particular degree of reliability to be admissible.
Expert testimony about a defendant's "future
dangerousness" to determine his eligibility for the death
penalty, even if wrong "most of the time," is routinely
admitted. Barefoot v. Estelle, 463 U. S. 880, 898-901
(1983). Studies indicate that handwriting analysis, and
even fingerprint identifications, may be less trustworthy
than polygraph evidence in certain cases.24 And, of
course, even highly dubious eyewit-
24 One study compared the accuracy of fingerprinting,
handwriting analysis, polygraph tests, and eyewitness
identification. The study consisted of 80 volunteers
divided into 20 groups of 4. Fingerprints and handwriting
samples were taken from all of the participants.
In each group of four, one person was randomly
assigned the role of "perpetrator." The perpetrator was
instructed to take an envelope to a building doorkeeper
(who knew that he would later need to identify the
perpetrator), sign a receipt, and pick up a package. After
the "crime," all participants were given a polygraph
examination.
The fingerprinting expert (comparing the original
fingerprints with those on the envelope), the handwriting
expert (comparing the original samples with the signed
receipt), and the polygrapher (analyzing the tests) sought
to identify the perpetrator of each group. In addition, two
days after the "crime," the doorkeeper was asked to pick
the picture of the perpetrator out of a set of four pictures.
The results of the study demonstrate that polygraph
evidence compares favorably with other types of
evidence. Excluding "inconclusive" results from each test,
the fingerprinting expert resolved 100% of the cases
correctly, the polygrapher resolved 95% of the cases
correctly, the handwriting expert resolved 94% of the
cases correctly, and the eyewitness resolved only 64% of
the cases correctly. Interestingly, when "inconclusive"
results were included, the polygraph test was more
accurate than any of the other methods: The polygrapher
resolved 90% of the cases correctly, compared with 85%
for the handwriting expert, 35% for the eyewitness, and
20% for the fingerprinting expert. Widacki & Horvath, An
Experimental Investigation of the Relative Validity and
Utility of the Polygraph Technique and Three Other
Common Methods of Criminal Identification, 23 J.
Forensic Sciences 596, 596-600 (1978); see also Honts
& Perry 365.
witness testimony is, and should be, admitted and tested
in the crucible of cross-examination. The Court's reliance
on potential unreliability as a justification for a categorical
rule of inadmissibility reveals that it is "overly pessimistic
about the capabilities of the jury and of the adversary
system generally. Vigorous cross-examination,
presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible
evidence." Daubert, 509 U. S., at 596.25
25 The Government argues that there is a widespread
danger that people will learn to "fool" the polygraph, and
that this possibility undermines any claim of reliability. For
example, the Government points to the availability of a
book called Beat the Box: The Insider's Guide to
Outwitting the Lie Detector. Tr. of Oral Arg. 53; Brief for
United States 25, n. 10. Beat the Box, however, actually
cuts against a per se ban on polygraph evidence. As the
preface to the book states:
"Dr. Kalashnikov [the author] is a polygraph professional.
If you go up against him, or someone like him, he'll
probably catch you at your game. That's because he
knows his work and does it by the book.
"What most people don't realize is that there are a lot of
not so professional polygraph examiners out there. It's
very possible that you may be tested by someone who is
more concerned about the number of tests he will run this
week (and his Christmas bonus) than he is about the
precision of each individual test.
"Remember, the adage is that you can't beat the
polygraph system but you can beat the operator. This
book is gleefully dedicated to the idea of a sporting
chance." V. Kalashnikov, Beat the Box: The Insider's
Guide to Outwitting the Lie Detector (1983) (preface); id.,
at 9 ("[W]hile the system is all but unbeatable, you can
surely beat the examiner").
Thus, Beat the Box actually supports the notion that
polygraphs are reliable when conducted by a highly
trained examiner-like the one in this case.
Nonetheless, some research has indicated that people
can be trained to use "countermeasures" to fool the
polygraph. See, e. g., Honts, Raskin, & Kircher, Mental
and Physical Countermeasures Reduce the Accuracy of
Polygraph Tests, 79 J. Applied Psychology 252 (1994).
This possibility, however, does not justify a per se ban.
First, research indicates that individuals must receive
specific training before they can fool the polygraph
(i. e., information alone is not enough). Honts, Hodes, &
Raskin, Effects
The Role of the Jury
It is the function of the jury to make credibility
determinations. In my judgment evidence that tends to
establish either a consciousness of guilt or a
consciousness of innocence may be of assistance to the
jury in making such determinations. That also was the
opinion of Dean Wigmore:
"Let the accused's whole conduct come in; and whether it
tells for consciousness of guilt or for consciousness of
innocence, let us take it for what it is worth, remembering
that in either case it is open to varying explanations and
is not to be emphasized. Let us not deprive an innocent
person, falsely accused, of the inference which common
sense draws from a consciousness of innocence and its
natural manifestations." 2 J. Wigmore, Evidence § 293, p.
232 (J. Chadbourn rev. ed. 1979).
There is, of course, some risk that some "juries will give
excessive weight to the opinions of a polygrapher,
clothed as they are in scientific expertise," ante, at 313-
314. In my judgment, however, it is much more likely that
juries will be guided by the instructions of the trial judge
concerning the credibility of expert as well as lay
witnesses. The strong presumption that juries will follow
the court's instructions,
see, e. g., Richardson v. Marsh, 481 U. S. 200, 211
(1987), applies to exculpatory as well as inculpatory
evidence. Com-
of Physical Countermeasures on the Physiological
Detection of Deception, 70 J. Applied Psychology 177,
185 (1985); see also Honts, Raskin, Kircher, & Hodes,
Effects of Spontaneous Countermeasures on the
Physiological Detection of Deception, 16 J. Police
Science and Administration 91, 93 (1988) (spontaneous
countermeasures ineffective). Second, as
countermeasures are discovered, it is fair to assume that
polygraphers will develop ways to detect these
countermeasures. See, e. g., Abrams & Davidson,
Counter-Countermeasures in Polygraph Testing, 17
Polygraph 16, 17-19 (1988); Raskin, Honts, & Kircher,
The Case for Polygraph Tests, in Faigman 577-578. Of
course, in any trial, jurors would be instructed on the
possibility of countermeasures and could give this
possibility its appropriate weight.
mon sense suggests that the testimony of disinterested
third parties that is relevant to the jury's credibility
determination will assist rather than impair the jury's
deliberations. As with the reliance on the potential
unreliability of this type of evidence, the reliance on a fear
that the average jury is not able to assess the weight of
this testimony reflects a distressing lack of confidence in
the intelligence of the average American.26
Collateral Litigation
The potential burden of collateral proceedings to
determine the examiner's qualifications is a manifestly
insufficient justification for a categorical exclusion of
expert testimony. Such proceedings are a routine
predicate for the admission of any expert testimony, and
may always give rise to searching cross-examination. If
testimony that is critical to a fair determination of guilt or
innocence could be excluded for that reason, the right to
a meaningful opportunity to present a defense would be
an illusion.
It is incongruous for the party that selected the examiner,
the equipment, the testing procedures, and the questions
asked of the defendant to complain about the examinee's
burden of proving that the test was properly conducted.
While there may well be a need for substantial collateral
proceedings when the party objecting to admissibility has
a basis for questioning some aspect of the examination, it
seems quite obvious that the Government is in no
position to challenge
26 Indeed, research indicates that jurors do not "blindly"
accept polygraph evidence, but that they instead weigh
polygraph evidence along with other evidence.
Cavoukian & Heslegrave, The Admissibility of Polygraph
Evidence in Court: Some Empirical Findings, 4 Law and
Human Behavior 117, 123, 127-128, 130 (1980)
(hereinafter Cavoukian & Heslegrave); see also Honts &
Perry 366-367. One study found that expert testimony
about the limits of the polygraph "completely
eliminated the effect of the polygraph evidence" on the
jury. Cavoukian & Heslegrave 128-129 (emphasis
added).
the competence of the procedures that it has developed
and relied upon in hundreds of thousands of cases.
In all events the concern about the burden of collateral
debates about the integrity of a particular examination, or
the competence of a particular examiner, provides no
support for a categorical rule that requires exclusion even
when the test is taken pursuant to a stipulation and even
when there has been a stipulation resolving all potential
collateral issues. Indeed, in this very case there would
have been no need for any collateral proceedings
because respondent did not question the qualifications of
the expert who examined him, and surely the
Government is in no position to argue that one who has
successfully completed its carefully developed training
program 27 is unqualified. The interest in avoiding evidence in all cases, no matter how reliable or probative
burdensome collateral proceedings might support a rule the evidence may be. Accordingly, I respectfully dissent.
prescribing minimum standards that must be met before
any test is admissible,28 but it surely does not support
the blunderbuss at issue.29

IV

The Government's concerns would unquestionably

support the exclusion of polygraph evidence in particular
cases, and may well be sufficient to support a narrower
rule designed to respond to specific concerns. In my
judgment, however,

29 It has been suggested that if exculpatory polygraph

evidence may be adduced by the defendant, the
prosecutor should also be allowed to introduce
inculpatory test results. That conclusion would not be
dictated by a holding that vindicates the defendant's Sixth
Amendment right to summon witnesses. Moreover, as
noted above, studies indicate that exculpatory polygraphs
are more reliable than inculpatory ones. See n. 22, supra.
In any event, a concern about possible future legal
developments is surely not implicated by the narrow
issue presented by the holding of the Court of Appeals
for the Armed Forces in this case. Even if it were, I can
see nothing fundamentally unfair about permitting the
results of a test taken pursuant to stipulation being
admitted into evidence to prove consciousness of guilt as
well as consciousness of innocence.

those concerns are plainly insufficient to support a

categorical rule that prohibits the admission of polygraph
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 183152-54 January 21, 2015
REYNALDO H. JAYLO, WILLIAM V ALENZONA and ANTONIO
G. HABALO, Petitioners,
vs.
SANDIGANBAYAN (FIRST DIVISION), PEOPLE OF THE
PHILIPPINES and HEIRS OF COL. ROLANDO DE GUZMAN,
FRANCO CALANOG and AVELINO
MANGUERA, Respondents.
DECISION
SERENO, CJ:
What are the repercussions of the failure of the accused to
appear, without justifiable cause, at the promulgation of a
judgment of conviction? With the resolution of this singular issue,
the Court writes finis to the 24-year-old controversy before us.
Assailed in this Petition for Review on Certiorari under Rule 45 of
the Rules of Court is the Decision1 of the Sandiganbayan finding
petitioners guilty beyond reasonable doubt of the crime of
homicide. Petitioners also challenge the Resolution dated 29
November 20072 issued by the same court, which took no action
on the motion for reconsideration filed by petitioners, and the
Resolution dated 26 May 20083 denying the motion for
reconsideration of the earlier Resolution.
ANTECEDENT FACTS
Petitioners Reynaldo Jaylo (Jaylo), William Valenzona
(Valenzona) and Antonio Habalo (Habalo), together with Edgardo
Castro (Castro),4 were officers of the Philippine National Police
Western Police District placed on special detail with the National
Bureau of Investigation (NBI).5
In June of 1990, the United States Drug Enforcement Agency (US
DEA) approached the NBI with information on the sale of a
considerable amount of heroin in the Philippines. Jaylo was
assigned by then NBI Director Alfredo Lim to head the team that
would conduct a buy-bust operation with the aid of US DEA
undercover agent Philip Needham (Needham).
From 3 to 8 July 1990, Needham, posing as a member of an
international drug syndicate, conducted negotiations for the
purchase of 10 kilos of heroin from Estella Arrastia (Arrastia),
Franco Calanog (Calanog) and Rolando De Guzman (De
Guzman).The exchange was scheduled on the evening of 10 July
1990 at the parking lot of the Magallanes Commercial Center.
Needham arrived at the parking lot on board a taxicab with
Arrastia and Philip Manila (Manila), an undercover NBI operative
who posed as Needham‘s bodyguard.6 The taxicab was driven by
Romeo Noriega (Noriega), another undercover NBI operative.7
At the parking lot, Needham and Arrastia met Calanog and
Avelino Manguera (Manguera), who both alighted from a blue
Volkswagen Beetle; and De Guzman, who alighted from a brown
Saab.8 Needham approached the Volkswagen and examined the
heroin in the backseat.9 After some time, he straightened up and
walked back towards the taxicab, while executing the
prearranged signal of taking out his handkerchief and blowing his
nose.10
It is at this point that the versions of the prosecution and the
defense diverged, particularly on the manner of the arrest.
Version of the Prosecution
On board two vehicles, Jaylo, Castro, Valenzona, Habalo, and at
least 15 other operatives, rushed in and surrounded De Guzman,
Calanog, and Manguera.11
Jaylo pointed his gun at De Guzman. Two other operatives
instructed Calanog and Manguera to lie face down on the ground
and placed a foot on their backs while training a gun at them. The
rest cordoned the area.
Later, a car with passengers Needham, US DEA country attaché
Andrew Fenrich (Fenrich), and two armed bodyguards moved out
of the cordoned area. When the car was safely on its way, Jaylo
and his men shot De Guzman, Calanog, and Manguera. They
waited 15 minutes for the victims to bleed out and thereafter
loaded them into the vehicles under the ruse of bringing them to
the hospital.12
Version of the Defense
When he saw Needham executing the prearranged signal, Manila
executed the second signal of wiping the right side of his face as
confirmation.13
Castro, who was driving a Lancer car with Jaylo as his
passenger, stepped on the accelerator to block the path of the
Volkswagen.14 Both of them immediately alighted from the vehicle.
Jaylo confronted De Guzman in the Saab, while Castro arrested
Calanog in the Volkswagen. Meanwhile, Valenzona and Habalo
approached Manguera.15
A speeding blue-green car and a burst of gunfire caught the
attention of the operatives while they were approaching their
quarries.16 Taking advantage of the distraction, De Guzman,
Calanog, and Manguera reached for their firearms and tried to
shoot.
Jaylo was able to move away, so only the window on the driver‘s
side of the Saab was hit and shattered.17 He retaliated and shot
De Guzman twice, hitting him in the left eye and chest.18
Out of instinct, Castro shoved the gun of Calanog upward and
shot him twice.19 Calanog staggered, but again aimed the gun at
him. It was then that Castro shot Calanog two times more,
causing the latter to finally fall down.
Valenzona and Habalo saw Manguera in the act of drawing his
firearm.20 Both of them fired and hit him.
The operatives brought De Guzman, Calanog, and Manguera to
the hospital.21 Upon verifying their identities, the victims were
found to be soldiers: Colonel Rolando de Guzman and Major
Franco Calanog.22 Manguera was the driver/security aide of Major
Calanog.23
The Elma Committee
President Corazon Aquino issuedAdministrative Order No.
18224 on 13 July 1990 creating the "Elma Committee." Headed by
Presidential Assistant for Legal and Judicial Affairs Magdangal
Elma, with Undersecretary of National Defense Leonardo
Quisumbing and Undersecretary of Justice Eduardo Montenegro
as members, the Elma Committee was tasked to conduct an
investigation of all the facts and circumstances surrounding the
seizure of heroin and the shooting incident.
Pursuant to its mandate to submit its findings and
recommendations to the President after the completion of its
investigation, the Elma Committee recommended the prosecution
of Jaylo for the killing of De Guzman, Castro for that of Calanog,
and Valenzona and Habalo for that of Manguera.25
However, in three separate Amended Informations dated 8
September 1992 and filed before the Sandiganbayan, Jaylo,
Castro, Valenzona and Habalo, together with several John Does,
were charged with conspiracy in the murder of De
Guzman,26 Calanog,27 and Manguera.28 RULING OF THE
SANDIGANBAYAN
In a Decision dated 17 April 2007, the Sandiganbayan found
Jaylo, Castro, Valenzona, and Habalo guilty of homicide. Jaylo
was convicted for the killing of De Guzman under Criminal Case
No. 17984; Castro for that of Calanog under Criminal Case No.
17985; and Valenzona and Habalo for Manguera‘s under Criminal
Case No. 17986.29 Each of the accused was sentenced to
imprisonment ofsix years and one day of prision mayoras
minimum to 14 years, eight months and one day of reclusion
temporalas maximum, and perpetual disqualification from public
office. Each was likewise ordered to pay ₱50,000 as damages to
the heirs of their respective victims, and a proportionate share in
the costs of suit.
The Sandiganbayan noted that the prosecution and the defense
were in agreement that the four accused shot and killed the three
victims.30 With this established fact, it was only necessary to
determine the following:
a) Whether the accused conspired to kill the victims;
b) Whether the killing was attended by treachery, evident
premeditation and taking advantage of superior strength;
and
c) Whether the killing was justified by the circumstance of
fulfillment of duty or lawful exercise of a right or office.
According to the Sandiganbayan, the evidence presented did not
show conspiracy or any intention on the partof the four accused
to aid one another in the shooting.31 They did not demonstrate a
preconceived common plan or scheme to liquidate the suspected
drug dealers. The prosecution was also unable to prove the
attendance of any of the qualifying circumstances.32 Treachery
was not established. The Sandiganbayan ruled that it could not
take judicial notice of the statements given before the Elma
Committee by Dr. Desiderio Moraleda, who had conducted the
autopsy on the victims. Dr. Moraleda died before he could testify
before the Sandiganbayan, and his testimony onthe trajectory of
the bullets and the positions of the assailants relative to those of
the victims could not be admitted in evidence without violating the
rules on hearsay evidence.
On the allegation that the four accused took advantage of
superior strength, the court ruled that there was no evidence
showing the use of excessive force out of proportion to the
defense available to the victims. In particular, the shooting of
Manguera by Valenzona and Habalo only showed numerical
superiority, not superior strength.
The prosecution also failed to prove evident premeditation. It was
not able to indicate the time when the four accused determined to
commit the killing; neither was it able to pinpoint the overt act
demonstrating that they adhered to their resolve to commit the
crime even after the lapse of enough time "to allow their
conscience to overcome the resolution of their will."33
For their part, the accused also failed to prove their defense of
fulfillment of a duty or lawful exercise of a right or office.34 The
Sandiganbayan was not convinced that they had acted within the
bounds allowed for an arrest in a buy-bust operation.
For one, the Sandiganbayan highly doubted the existence of the
speeding car that distracted the operatives while they were
arresting the suspected drug dealers. In this regard, it took note
of the inconsistent testimonies of Manila and Noriega on one
hand and of Needham on the other.
According to Manila, when he heard the gunfire from the
speeding car, he covered Needham and ran with him towards the
South Superhighway, away from the taxicab driven by
Noriega.35 Needham got into the diplomatic car that approached
them. When the shooting subsided, he went back to the scene.
According to Noriega, he saw the speeding car going towards the
Maranaw Building parking lot and heard three gunshots.
Thereafter, he saw Needham run towards his taxi and board it.
While Noriega was trying to get Needham away from the area, a
diplomatic car blocked their taxicab, and the latter transferred to
that car.
According to Needham, however, he immediately walked back to
the taxi after executing the prearranged signalfor the arrest, got in
the cab and left the scene. As the taxicab was leaving, he saw
the "rescue" coming in.36 Other than that, he did not notice any
commotion or gunfire. He was then picked up by Fenrich, and
they went on their way.
The Sandiganbayan also noted that the slugs or shells recovered
from the scene all came from short firearms, contrary to Jaylo‘s
testimony that the shots from the speeding car were from a rifle
(an "armalite").
Further militating against the existence of the speeding car was
Jaylo‘s incident Report dated 10 July 1990, in which he stated
that when they rushed in for the arrest, they were met by a volley
of gunfire from the three cars of the suspected drug
dealers.37 There was no mention at all of any speeding car.
Considering the failure of the prosecution to prove conspiracy and
the attendance of any of the alleged qualifying circumstances, as
well as the failure of the defense to prove the justifying
circumstance of fulfillment of a duty or lawful exercise of a right or
office, the Sandiganbayan ruled that the crime committed was
homicide.
During the promulgation of the Sandiganbayan‘s judgment on 17
April 2007, none of the accused appeared despite notice.38 The
court promulgated the Decision in absentia, and the judgment
was entered in the criminal docket. The bail bonds of the accused
were cancelled, and warrants for their arrest issued.
On 30 April 2007, counsel for Jaylo, Valenzona, and Habalo filed
a Motion for Partial Reconsideration39 of the Decision. In the
assailed Resolution dated 29 November 2007, the
Sandiganbayan took no action on the motion and ordered the
implementation of the warrants for the arrest of the convicted
accused.40 The court ruled that the 15-day period from the
promulgation of the judgment had long lapsed without any of the
accused giving any justifiable cause for their absence during the
promulgation. Under Section 6 of Rule 120 of the Rules of
Court,41 Jaylo, Valenzona and Habalo have lost the remedies
available under the Rules against the Sandiganbayan‘s judgment
of conviction, including the filing of a motion for reconsideration.
In an Ad Cautelam Motion for Reconsideration42 dated 25 January
2008, counsel for the three urged the Sandiganbayan to givedue
course to and resolve the Motion for Partial Reconsideration. The
Sandiganbayan issued the second assailed Resolution dated 26
May 2008. The court ruled that for the failure of the three to
surrender and move for leave to avail themselves of a motion for
reconsideration within 15 days from the date of promulgation, the
judgment has become final and executory, and no action on the
motion for reconsideration can be taken.43 It then reiterated its
order to implement the warrants for the arrest of the three. ISSUE
On 19 June 2008, petitioners Jaylo, Valenzona and Habalo, by
counsel, filed the instant petition assailing the Sandiganbayan
Decision dated 17 April 2007 and Resolutions dated 29
November 2007 and 26 May 2008. Regarding the Decision dated
17 April 2007, petitioners argue that the
Sandiganbayan erred in ruling as follows:
 1. The negative finding of a conspiracy did not lead to the
positive finding of the justifying circumstance of fulfillment
of duty.
2. There was a contradiction between the testimonies of
Manila and Noriega on one hand and Needham on the
other.
3. The existence of the speeding car was highly doubtful.
4. The inconsistency in the testimony of Jaylo was
determinative of his lack of credibility.
5. There should be conclusive physical evidence to prove
the justifying circumstance of fulfillment of duty.
6. The admissions of petitioners before the Elma
Committee were admissible in evidence.
7. Petitioners are guilty of homicide even in the absence
of their positive identification as the ones who committed
the crimes charged.
Anent the Resolutions dated 29 November 2007 and 26 May
2008, petitioners argue:
1. Section 6 of Rule 120 of the Rules of Court cannot
diminish, increase or modify substantive rights like the
filing of a motion for reconsideration provided under
Presidential Decree No. (P.D.) 1606.44
2. The conditions under Section 6 Rule120 of the Rules of
Court do not obtain in the instant case.
As stated at the outset, the resolution of the instant case hinges
on the question regarding the effects of the non appearance of
the accused, without justifiable cause, in the promulgation of the
judgment of conviction. In the interest of judicial economy, we
shall proceed with a discussion on this question. For reasons that
will be expounded on below, the application in this case of the law
and rules on the non appearance of the accused, without
justifiable cause, in the promulgation of the judgment of
conviction shall determine for us the propriety of conducting a
review of the Sandiganbayan Decision dated 17 April 2007.
OUR RULING
Section 6, Rule 120, of the Rules of Court provides that an
accused who failed to appear at the promulgation of the judgment
of conviction shall lose the remedies available against the said
judgment.
Section 6, Rule 120, of the Rules of Court states:
SECTION 6. Promulgation of judgment. — The judgment is
promulgated by reading it in the presence of the accused and any
judge of the court in which it was rendered. However, if the
conviction is for a light offense, the judgment may be pronounced
in the presence of his counsel or representative. When the judge
is absent or outside the province or city, the judgment may be
promulgated by the clerk of court.
If the accused is confined or detained in another province or city,
the judgment may be promulgated by the executive judge of the
Regional Trial Court having jurisdiction over the place of
confinement or detention upon request of the court which
rendered the judgment. The court promulgating the judgment
shall have authority to accept the notice of appeal and to approve
the bail bond pending appeal; provided, that if the decision of the
trial court convicting the accused changed the nature of the
offense from non-bailable to bailable, the application for bail can
only be filed and resolved by the appellate court.
The proper clerk of court shall givenotice to the accused
personally or through his bondsman or warden and counsel,
requiring him to be present at the promulgation of the decision. If
the accused was tried in absentia because he jumped bail or
escaped from prison, the notice to him shall be served at his last
known address.
In case the accused fails to appear at the scheduled date of
promulgation of judgment despite notice, the promulgation shall
be made by recording the judgment in the criminal docket and
serving him a copy thereof at his last known address or thru his
counsel.
If the judgment is for conviction and the failure of the accused to
appear was without justifiable cause, he shall lose the remedies
available in these rules against the judgment and the court shall
order his arrest. Within fifteen (15) days from promulgation of
judgment, however, the accused may surrender and file a motion
for leave of court to avail of these remedies. He shall state the
reasons for his absence at the scheduled promulgation and if he
proves that his absence was for a justifiable cause, he shall be
allowed to avail of said remedies within fifteen (15) days from
notice.(6a) (Emphasis supplied)
Except when the conviction is for a light offense, in which case
the judgment may be pronounced in the presence of the counsel
for the accused or the latter‘s representative, the accused is
required to be present at the scheduled date of promulgation of
judgment. Notice of the schedule of promulgation shall be made
to the accused personally or through the bondsman or warden
and counsel.
The promulgation of judgment shall proceed even in the absence
of the accused despite notice. The promulgation in absentia shall
be made by recording the judgment in the criminal docket and
serving a copy thereof to the accused at their last known address
or through counsel. The court shall also order the arrest of the
accused ifthe judgment is for conviction and the failure to appear
was without justifiable cause.45
If the judgment is for conviction and the failure to appear was
without justifiable cause, the accused shall lose the remedies
available in the Rules of Court against the judgment. Thus, it is
incumbent upon the accused to appear on the scheduled date of
promulgation, because it determines the availability of their
possible remedies against the judgment of conviction. When the
accused fail to present themselves at the promulgation of the
judgment of conviction, they lose the remedies of filing a motion
for a new trial or reconsideration (Rule 121) and an appeal from
the judgment of conviction (Rule 122).46
The reason is simple. When the accused on bail fail to present
themselves at the promulgation of a judgment of conviction, they
are considered to have lost their standing in court.47 Without any
standing in court, the accused cannot invoke itsjurisdiction to
seek relief.48
Section 6, Rule 120, of the Rules of Court, does not take away
substantive rights; itmerely provides the manner through which an
existing right may be implemented.
Petitioners claim that their right to file a motion for reconsideration
or an appeal has a statutory origin, as provided under Section 7
of P.D. 1606, to wit:
Section 7. Form, Finality and Enforcement of Decisions. — All
decisions and final orders determining the merits of a case or
finally disposing of the action or proceedings of the
Sandiganbayan shall contain complete findings of the facts and
the law on which they are based, on all issues properly raised
before it and necessary in deciding the case.
A petition for reconsideration of any final order or decision may be
filed within fifteen (15) days from promulgation or notice of the
final order or judgment, and such motion for reconsideration shall
be decided within thirty (30) days from submission thereon.
(Emphasis supplied)
xxxx
According to petitioners, Section 7 of P.D. 1606 did not provide
for any situation as to when the right to file a motion for
reconsideration may be deemed lost. Thus, it is available at all
times and the Rules promulgated by the Supreme Court cannot
operate to diminish or modify the right of a convicted accused to
file a motion for reconsideration.49Furthermore, they argue, the
right to file a motion for reconsideration is a statutory grant, and
not merely a remedy "available in [the] Rules," as provided under
Section 6 of Rule 120 of the Rules of Court. Thus, according to
them, their absence at the promulgation of judgment before the
Sandiganbayan cannot be deemed to have resulted in the loss of
their rightto file a motion for reconsideration.
Petitioners‘ argument lacks merit.
Like an appeal, the right to file a motion for reconsideration is a
statutory grant or privilege. As a statutory right, the filing of a
motion for reconsideration is to be exercised in accordance with
and in the manner provided by law. Thus, a party filing a motion
for reconsideration must strictly comply with the requisites laid
down in the Rules of Court.50
It bears stressing that the provision on which petitioners base
their claim states that "[a] petition for reconsideration of any final
order or decision maybe filed within fifteen (15) days from
promulgation or notice of the final order or judgment."51 In Social
Security Commission v. Court of Appeals,52 we enunciated that
the term "may" denotes a mere possibility, an opportunity, or an
option. Those granted this opportunity may choose to exercise it
or not. If they do, they must comply with the conditions attached
thereto.53
Aside from the condition that a motion for reconsideration must
be filed within 15 days from the promulgation or notice of the
judgment, the movant must also comply with the conditions laid
down in the Rules of Court, which applies to all cases and
proceedings filed with the Sandiganbayan.54
Petitioners insist that the right to file a motion for reconsideration
under Section 7 of P.D. 1606 is a guarantee, and no amount of
Rules promulgated by the Supreme Court can operate to diminish
or modify this substantive right. Aptly citing Fabian v.
Desierto,55 the Sandiganbayan was correct in rejecting the
argument of petitioners in this wise:
Fabian v. Desiertolays down the test for determining whether a
rule prescribed by the Supreme Court, for the practice and
procedure of the lower courts, abridges, enlarges or modifies any
substantive right, to wit:
"…whether the rule really regulates procedure, that is, the judicial
process for enforcing rights and duties recognized by substantive
lawand for justly determining remedy and redress for a disregard
or infraction of them. If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the right to appeal, it
may be classified as a substantive matter; but if it operates as a
means of implementing an existing right then the rule deals
merely with procedure.
Applying the Fabian v. Desiertotest, it appears indubitable that
Section 6, Rule 120 of the Rules of Court (ROC) clearly applies to
the Sandiganbayan.
Section 6, Rule 120, ROC as well as Section 4, Rule VIII of the
Revised Rules of the Sandiganbayan (which makes applicable
Section 6, Rule 120, ROC when the accused is absent during
promulgation of judgment) merely regulates the right to file a
motion for reconsideration under P.D. 1606. These are mere
rules of procedure which the Supreme Court is competent to
adopt pursuant to its rule-making power under Article VIII, Section
5(5) of the Constitution. And, contrary to the view espoused by
the accused, said rules do not take away, repeal or alter the right
to file a motion for reconsideration as said right still exists. The
Supreme Court merely laid down the rules on promulgation of a
judgment of conviction done in absentia in cases when the
accused fails to surrender and explain his absence within 15 days
from promulgation. The Supreme Court can very well do this as
the right to file a motion for reconsideration under P.D. 1606 is
not preclusive in character. Indeed, there is nothing in P.D. 1606
which prevents the Supreme Court from regulating the procedure
for promulgation of decisions in criminal cases done in absentia.56
Section 6, Rule 120, of the Rules of Court, does not take away
per se the right of the convicted accused to avail of the remedies
under the Rules. It is the failure of the accused to appear without
justifiable cause on the scheduled date of promulgation of the
judgment of conviction that forfeits their right to avail themselves
of the remedies against the judgment.
It is not correct to say that Section 6, Rule 120, of the Rules of
Court diminishes or modifies the substantive rights of petitioners.
It only works in pursuance of the power of the Supreme Court to
"provide a simplified and inexpensive procedure for the speedy
disposition of cases."57 This provision protects the courts from
delay in the speedy disposition of criminal cases – delay arising
from the simple expediency of nonappearance of the accused on
the scheduled promulgation of the judgment of conviction.
In this case, petitioners have just shown their lack of faith in the
jurisdiction of the Sandiganbayan by not appearing before it for
the promulgation of the judgment on their cases. Surely they
cannot later on expect to be allowed to invoke the
Sandiganbayan‘s jurisdiction to grant them relief from its
judgment of conviction.
It is incumbent upon the accused to
show justifiable cause for their
absence at the promulgation of the
judgment of conviction.
According to petitioners, even if wewere to apply Section 6, Rule
120, the conditions under which an accused loses the remedies
available in the Rules of Court do not obtain in this case. It is
argued that for the provision to apply, it must be shown that 1) the
accused was notified of the scheduled date of promulgation, and
that 2) the accused failed to appear at the promulgation of the
judgment of conviction without justifiable cause.
Petitioners insist that the Sandiganbayan did not bother to
determine whether their absence at the promulgation of judgment
was without justifiable cause. In other words, as petitioners would
have it, it was incumbent upon the Sandiganbayan to take pains
to find out whether their absence at the promulgation was without
justifiable cause, and only then could the court conclude that
petitioners have lost the remedies available in the Rules of Court
against the judgment of conviction.
It is well to note that Section 6, Rule 120, of the Rules of Court
also provides the remedy by which the accused who were absent
during the promulgation may reverse the forfeiture of the
remedies available to them against the judgment of conviction. In
order to regain their standing in court, the accused must do as
follows: 1) surrender and 2) file a motion for leave of court to avail
of the remedies, stating the reasons for their absence, within 15
days from the date of the promulgation of judgment.58
In Villena v. People,59 we stated that the term "surrender"
contemplates the act by the convicted accused of physically and
voluntarily submitting themselves to the jurisdiction of the court to
suffer the consequences of the judgment against them. Upon
surrender, the accused must request permission of the court to
avail of the remedies by making clear the reasons for their failure
to attend the promulgation of the judgment of conviction.
Clearly, the convicted accused are the ones who should show
that their reason for being absent at the promulgation of judgment
was justifiable. If the court finds that the reasons proffered justify
their nonappearance during the promulgation of judgment, it shall
allow them to avail of the remedies.60 Thus, unless they surrender
and prove their justifiable reason to the satisfaction of the court,
their absence is presumed to be unjustified.
On the scheduled date of promulgation on 17 April 2007, the
Sandiganbayan noted that only Atty. Francisco Chavez, counsel
for petitioners, appeared.61 Jaylo was not served notice of the
promulgation, because he was no longer residing athis given
address. Valenzona and Habalo were duly notified. Castro had
died on 22 December 2006.62
conviction, the Decision of the Sandiganbayan attained finality 15
days reckoned from 17 April 2007.
In view thereof, this Court no longer has the power to conduct a
review of the findings and conclusions in the Decision of the
Sandiganbayan. The Decision is no longer subject to change,
revision, amendment, or reversal.63Thus, there is no need to pass
upon the issues raised by petitioners assailing it.
WHEREFORE, the petition is DENIED. The Sandiganbayan
Resolutions dated 29 November 2007 and 26 May 2008 in
Criminal Case Nos. 17984-86 are AFFIRMED. The
Sandiganbayan Decision dated 17 April 2007, having attained
finality, stands.

Petitioners did not surrender within 15 days from the SO ORDERED.

promulgation of the judgment of conviction. Neither did they ask
1âwphi 1

for leave of court to avail themselves of the remedies, and state

the reasons for their absence. Even if we were to assume that the
failure of Jaylo to appear at the promulgation was due to failure to
receive notice thereof, it is not a justifiable reason. He should
have filed a notice of change ofaddress before the
Sandiganbayan.

The Sandiganbayan was correct in not taking cognizance of the

Motion for Partial Reconsideration filed by counsel for petitioners.
While the motion was filed on 30 April 2007, it did not operate to
regain the standing of petitioners in court. For one, it is not anact
of surrender that is contemplated by Section 6, Rule 120, of the
Rules of Court. Moreover, nowhere in the Motion for Partial
Reconsideration was it indicated that petitioners were asking for
leave to avail of the remedies against the judgment of conviction,
or that there were valid reasons for their absence at the
promulgation.

For the failure of petitioners to regain their standing in court and

avail themselves of the remedies against the judgment of