G.R. NO. 176389 - ANTONIO LEJANO v. PEOPLE OF THE
PHILIPPINES
G.R.
NO. 176864 - PEOPLE OF THE PHILIPPINES v. HUBERT JEFFREY P. WEBB, ANTONIO
LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER
ESTRADA and GERARDO BIONG
Promulgated:
December
14, 2010
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SEPARATE CONCURRING OPINION
SERENO, J.:
The duty of the prosecution is not
merely to secure a conviction, but to secure a just conviction.
This highly publicized case became the center of the
nation’s attention owing to the public outrage over the atrocious nature of the
crime committed in what was then thought to be a relatively secure
neighborhood. Worse, it brought inconsolable grief to a husband and father who
lost his entire family to senseless violence while he was working overseas.
Events soon after the occurrence of the crime on 30 June 1991 would only help
fuel civic indignation. Just two days thereafter, or on 2 July 1991, La Salle
Engineering student Eldon Maguan was gunned down in cold blood by businessman
Rolito Go over a parking skirmish in San Juan.[1] After the lapse of only 11 days, young Maureen
Hultman and Roland John Chapman were fatally shot by Claudio Teehankee, Jr. in
Dasmarinas Village after a minor scuffle.[2]
The
vehement outcry to find and punish those responsible for the Vizconde horror
initially led, four months after, to the arrest and eventual filing by the
prosecution of Information for two counts of robbery with homicide and one
count of robbery with rape against six named and an undetermined number of
unnamed persons touted as members of the Akyat Bahay gang. In view of
the illegal arrests of the accused and noncompliance with the requirements for
conducting custodial investigation, including evidence of torture in extracting
confessions from the accused, the trial court in its 1993 Decision[3] pronounced the accused not guilty of the
charges. During the same year (1993), another set of suspects (apparently
former contractors/workers of the Vizcondes) was identified, only to be
released later on due to insufficiency of evidence.[4]
Almost
four years after the crime was committed, self-confessed drug user Jessica
Alfaro (Alfaro) named young men from wealthy and powerful families as
perpetrators of the crime, which she claimed to have witnessed, thereby
tantalizing a sympathetic public with ideal visions of justice – of morally
depraved offenders finally caught and no longer able to wreck random havoc on
the lives of law-abiding citizens; of privileged perpetrators subjected to the
rule of law no matter how high and mighty; of bereaved families brought a
measure of comfort for the vindication of wasted young lives.
However, there was little objective forensic
evidence obtained from the crime scene due to deplorable missteps taken by the
investigating police officers. Consequently, Senior Police Officer 1 Gerardo
Biong and some John Does were charged as accessories to the crime for “conceal[ing]
and destroy[ing] the effects or instruments thereof by failing to preserve the
physical evidence and allowing their destruction in order to prevent the
discovery of the crime.”[5]
A
review of the proceedings during preliminary investigation and trial showed
that the prosecution did not fare much better, for it committed acts of
prosecutorial misconduct that effectively deprived the accused of their
constitutionally guaranteed right to due process.
At the outset, it cannot be overemphasized that the prosecuting officer “is the
representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffer. He may prosecute with
earnestness and vigor — indeed, he should do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as much his duty to
refrain from improper methods calculated to produce a wrongful conviction as it
is to use every legitimate means to bring about a just one.”[6]
In the words of Richard Refshauge: “The
adversarial system … is rooted in the notion of a contest with winners and
losers, yet the prosecutor is ethically forbidden from embracing that notion.
The question then, is not what will make the prospect of a conviction more
certain, but what is fair and what will contribute to justice.”[7]
Thus, a criminal trial is not about
personal redress for the victims, but about determining the guilt and the just
punishment of the accused.[8] What is in truth referred to when expanding on
the concept of “fair trial” is that the rights of the accused are protected, to
the extent necessary to ensure fairness for him. Rights of the victim are not
ignored, but they are respected only to the extent that they are consistent
with the fairness of the trial for the accused.[9]
In Allado
V. Diokno,[10] we also elucidated this delicate balancing of
interests in the following manner:
The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is essential for its self-preservation, nay, its very existence. But this does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard the rights of its citizens under the Constitution. Confinement, regardless of duration, is too high a price to pay for reckless and impulsive prosecution. Hence, even if we apply in this case the “multifactor balancing test” which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed and the circumstances attending the incident, still we cannot see probable cause to order the detention of petitioners.
The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former. Thus, relief may be availed of to stop the purported enforcement of criminal law where it is necessary to provide for an orderly administration of justice, to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights.
Let this then be a constant reminder to judges, prosecutors and other government agents tasked with the enforcement of the law that in the performance of their duties they must act with circumspection, lest their thoughtless ways, methods and practices cause a disservice to their office and maim their countrymen they are sworn to serve and protect. We thus caution government agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be oblivious of human rights protected by the fundamental law. While we greatly applaud their determined efforts to weed society of felons, let not their impetuous eagerness violate constitutional precepts which circumscribe the structure of a civilized community.
Indeed, at the core of our criminal justice system
is the presumption of innocence of the accused until proven guilty. Lip service
to this ideal is not enough, as our people are well acquainted with the painful
reality that the rights of the accused to a fair trial were violated with
impunity by an unchecked authority in our not so distant history. In response,
the rights of the accused were enshrined in no less than the 1987 Constitution,
particularly Article III thereof. They are further bolstered by the Rules of
Court, related legislation, general rules on evidence, and rules on ethical
conduct.
The
said rights of the accused come with the corresponding duties, nay, guarantees
on the part of the State, the prosecution in particular. The prosecution’s
disregard of these standards amounts to prosecutorial misconduct.
Some examples of prosecutorial misconduct would be
the intimidation of defense witnesses, the obstruction of defense lawyers’
access to prosecution witnesses, the coercion of confession from the accused,
the issuance of prejudicial comments about the accused, the mishandling and/or
withholding of evidence, and the failure to preserve evidence.[11]
Issuance of Prejudicial Comments About the Accused
Section
14(2), Article III of the 1987 Constitution emphatically mandates:
Section 14. (1) No person shall be held to answer for a
criminal offense without due process of law.
(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.)
The presumption of innocence of the accused is at the center
of our criminal justice system – the cornerstone, as it were, of all the other
rights accorded to the accused, including the right to due process of law. In
pronouncing the presumption of innocence of the accused and their right to due
process, the Constitution declares that the risk of letting the guilty walk
free would be error on the side of justice. This outcome is infinitely better
than imprisoning an innocent person.
Because the accused must be presumed innocent, and because
they are entitled to due process of law, it is the duty of the prosecution not
to issue prejudicial statements about them while the trial is being conducted.
This standard applies with even more force to the trial judge who must at all
times not only be impartial, but also appear to be so.[12]
Allegations of issuance of prejudicial
comments about the accused in this case pertained to the acts of the trial
judge, and not the prosecution. When allegations of instances of the trial
judge’s bias were first brought to this Court, it was understandable that the
Court would accord the judge the presumption of regularity in the performance
of her duties. Her subsequent acts, however, as well as her Decision – taken
together – showed a pattern now recognizable in retrospect as bias against the
accused, amounting to denial of due process.
In Webb, et
al. v. People,[13] the accused assailed the Court of Appeals for
denying their Petition for the inhibition from the case of Judge Amelita Tolentino, the presiding judge of Branch 274 of the Regional Trial Court of Paranaque.
Webb’s first Motion for the disqualification of Judge Tolentino,
filed prior to their arraignment, was anchored on the ground that the said
judge had allegedly told the media that “failure of the accused to surrender
following the issuance of the warrant of arrest is an indication of guilt.” This
motion was denied by Judge Tolentino. Two days later, Webb filed a second
motion to disqualify her. Allegedly, she had further 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, Paranaque. The judge again denied the Motion. Gerardo
Biong also filed a motion to disqualify her on the ground of bias and
partiality, but this Motion was also denied.
Thereafter, at the hearing for the accused’s Petitions for bail
during which the prosecution presented Jessica Alfaro, Judge Tolentino issued
an Order. The judge ruled that Alfaro could not be cross-examined on the
contents of the latter’s April 28 Affidavit. The affidavit was held to be
inadmissible in evidence, as it was allegedly not executed in the presence of a
counsel.
Alfaro
was asked about her brother Patrick Alfaro and her uncle Robert Alfaro. She
admitted that her brother was a drug addict and had been arrested by the
National Bureau of Investigation (NBI) for illegal drug possession. She further
claimed that her brother was now in the United States. The prosecution objected
to further questions regarding the arrest and departure of Alfaro’s brother on
the ground that it was irrelevant, immaterial and impertinent for
cross-examination. Despite the defense counsel’s explanation that the questions
were for the purpose of establishing Alfaro’s bias and motive for testifying
against the accused, the trial court sustained the objection.
Similar
objections on the ground of irrelevance, immateriality and impertinence were
sustained by the trial court when the defense counsel cross-examined Alfaro on
her educational attainment. Prior to the cross-examination, Alfaro was shown
her transcript of records indicating her completion of only one academic year,
thus earning nine units of college.
Accused then filed a Motion to disqualify Judge Tolentino or
inhibit herself from the case due to bias and prejudice, but she denied the
Motion.
The accused thus assailed before this Court [1] the Order of judge
Tolentino denying Webb’s motion for hospitalization; and [2] the Order of Judge
Tolentino disallowing the defense to cross-examine Alfaro on the contents of
her April 28 affidavit.
Accused later filed with this Court a Supplemental Petition to set
aside Judge Tolentino’s Order denying their Motion for inhibition.
This Court resolved to refer the petitions to the Court of Appeals
for proper disposition.
In the meantime, the
hearing on the accused’s Petitions for bail continued, with petitioner Webb
filing a motion for deposition of witnesses residing in the United States, who
would testify on his presence in that country on the date of the commission of
the crime. This Petition was denied by Judge Tolentino on the ground that
petitioner failed to allege that the witnesses did not have
the means to go to the place of the trial. Petitioner Webb
filed another Supplemental Petition to the Court of Appeals challenging the said
Order.
The defense made their
Formal Offer of Evidence upon conclusion of the hearings on the Petitions for
bail. The prosecution filed its Comment/Objection to the Formal Offer of
Evidence. Judge Tolentino ruled on the accused’s formal offer of evidence,
admitting only ten [10] out of the one hundred forty-two [142] exhibits offered
by the defense. Subsequently, the judge
denied the accused’s Petitions for bail.
The Court of Appeals rendered its Decision on the various
Petitions and Supplemental Petitions, reversing Judge Tolentino’s refusal to
admit Alfaro’s April 28 Affidavit. The appellate court, however, denied all the
other reliefs prayed for. The accused thus elevated the matter to this Court.
They subsequently filed a Supplemental Petition, alleging, among
others, that during the trial on the merits, Judge Tolentino had 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 the
judge disallowed the defense to impeach the credibility of Atty. Rivera by the
presentation of an earlier statement executed by him, on the ground that his
statement was immaterial; and that, after ruling that the proffer of oral
evidence made by defense counsel Atty. Vitaliano Aguirre was improper on
cross-examination, Judge Tolentino struck the proffer from the record.
We affirmed the Court of
Appeals’ disposition, explaining as follows:
A critical
component of due process is a hearing before an impartial and disinterested
tribunal [and] 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.[However, t]his 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. …
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. 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. 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 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." This correction diminishes the strength of
petitioners’ charge that respondent judge is hopelessly biased against them. …
… There is still another reason why we should observe caution in
disqualifying respondent judge. The trial of the 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.
Mishandling and/or Withholding of Evidence
The
rights of the accused to have compulsory process to secure the production of
evidence on their behalf is a right enshrined in no less than our Constitution,
particularly Article III, Section 14
thereof, to wit:
Section 14:
(1)No person shall be held to answer for a criminal offense without due process of law.
(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. Xxx (Underscoring supplied.)
This right is echoed and further fleshed out in the Rules of
Criminal Procedure. Rule 115, Section 1
thereof, provides:
SECTION 1. Rights of accused at the trial.—In all criminal prosecutions, the accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b) To be informed of the nature and cause of the accusation against him.
(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his tail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.
(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against himself.
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.
(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed by law. (Underscoring supplied.)
Section
10, Rule 116 of the Rules of Criminal Procedure, in fact further mandates:
SEC. 10. Production or inspection of material evidence in possession of prosecution.—Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in possession or under the control of the prosecution, police, or other law investigating agencies. (Underscoring supplied.)
Thus,
the accused’s right of access to evidence requires the correlative duty of the
prosecution to produce and permit the inspection of the evidence, and not to
suppress or alter it.
Applying
this standard to the present case, it is notable that during preliminary
investigation, the NBI presented to the Department of Justice (DOJ) Panel,
among others, the Sworn Statement of their principal witness, Alfaro, dated 22 May 1995. Before submitting
his Counter-Affidavit, Webb filed with the DOJ Panel a Motion for Production
and Examination of Evidence and Documents for the NBI to produce, among others,
any other written statements of Alfaro.
The
DOJ Panel granted the Motion, and the NBI submitted a mere photocopy of an
earlier Sworn Statement of Alfaro dated 28 April 1995. The Statement did not
appear to be signed by Alfaro’s counsel of choice, named as Atty. Arturo
Mercader, Jr.. in the same document. In this earlier Sworn Statement, Alfaro
declared that she had never met Carmela before that fateful night; that she did
not know why the accused wanted to enter the Vizconde house, except that they
were after Carmela; that the accused entered the premises by jumping over the
fence; that she did not know how the accused were able to enter the house, as
she was about ten (10) meters away from the kitchen door; that she did not know
who opened that door for the accused, but hinted that one of the maids must
have done it since Estrellita and Carmela were tied; and that she had no idea
what transpired in the house until they left the area.
This
Statement contradicted salient points in Alfaro’s 22 May 1995 Sworn Statement,
which was the basis of the NBI’s complaint. In her 22 May 1995 Sworn Statement,
Alfaro claimed to have known Carmela since February 1991; that the group
decided to rape Carmela when Alfaro informed Webb that Carmela had dropped off
a man who appeared to be her boyfriend; that Carmela left open the gate through
which they entered the premises freely; that Alfaro led the group in entering
the kitchen door; that she witnessed the rape of Carmela by Webb and also saw
the bodies of Estrellita and Jennifer piled up on the bed.
The NBI explained that they produced a mere
photocopy of the 28 April 1995 Sworn Statement, because the original was lost.
When the DOJ Panel refused to issue a subpoena duces tecum to Atty.
Mercader, the accused filed a case with the Regional Trial Court of Makati,
Branch 63, to obtain the original of the first Sworn Statement. Atty. Mercader
then appeared and produced before the trial court the original Sworn Statement
of Alfaro dated 28 April 1995, which also contained his signature. Webb retained a certified true copy of the first Sworn Statement
(certified by Assistant State Prosecutor Jovencito Zuno), while the duplicate
original copy thereof was submitted to the DOJ Panel.
The DOJ Panel still found probable cause to charge the accused and
on 10 August 1995, an Information for Rape with Homicide was filed with the
Regional Trial Court of Paranaque against Webb, et al. It was raffled to Branch
274, presided by Judge Amelita Tolentino, who thereupon issued warrants for
their arrest.
Webb et al. came to this Court to assail the DOJ Panel’s finding
and the trial court’s issuance of warrants for their arrest. We upheld the
right of petitioners to compel the NBI to disclose exculpatory evidence in
their favor:
Further, petitioners charge the NBI with
violating their right to discovery proceedings during their preliminary
investigation by suppressing the April 28, 1995 original copy of the sworn
statement of Alfaro and the FBI Report. The argument is novel in this
jurisdiction and as it urges an expansive reading of the rights of persons
under preliminary investigation it deserves serious consideration. To start
with, our Rules on Criminal Procedure do not expressly provide for discovery
proceedings during the preliminary investigation stage of a criminal
proceeding. Sections 10 and 11 of Rule 117 do provide an accused the right to
move for a bill of particulars and for production or inspection of material
evidence in possession of the prosecution. But these provisions apply after the
filing of the Complaint or Information in court and the rights are accorded to
the accused to assist them to make an intelligent plea at arraignment and to
prepare for trial.
This failure to provide discovery procedure
during preliminary investigation does not, however, negate its use by a person
under investigation when indispensable to protect his constitutional right to
life, liberty and property. Preliminary investigation is not too early a stage
to guard against any significant erosion of the constitutional right to due
process of a potential accused. As aforediscussed, the object of a preliminary
investigation is to determine the probability that the suspect committed a
crime. We hold that the finding of a probable cause by itself subjects the
suspect’s life, liberty and property to real risk of loss or diminution. In the
case at bar, the risk to the liberty of petitioners cannot be understated for
they are charged with the crime of rape with homicide, a non-bailable offense
when the evidence of guilt is strong.
Attuned to the times, our Rules have
discarded the pure inquisitorial system of preliminary investigation. Instead,
Rule 112 installed a quasi-judicial type of preliminary investigation conducted
by one whose high duty is to be fair and impartial. 44 As this Court emphasized
in Rolito Go vs. Court of Appeals, "the right to have a preliminary
investigation conducted before being bound over for trial for a criminal
offense, and hence formally at risk of incarceration or some other penalty, is
not a mere or technical right; it is a substantive right." A preliminary
investigation should therefore be scrupulously conducted so that the
constitutional right to liberty of a potential accused can be protected from
any material damage. We uphold the legal basis of the right of petitioners to
demand from their prosecutor, the NBI, the original copy of the April 28, 1995
sworn statement of Alfaro and the FBI Report during their preliminary
investigation considering their exculpatory character, and hence, unquestionable
materiality to the issue of their probable guilt. The right is rooted on the
constitutional protection of due process which we rule to be operational even
during the preliminary investigation of a potential accused. It is also
implicit in Section (3) (a) of Rule 112 which requires during the preliminary
investigation the filing of a sworn complaint which shall ". . . state the
known address of the respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting documents . . .
."
In laying down this rule, the
Court is not without enlightened precedents from other jurisdictions. In the
1963 watershed case of Brady v. Maryland the United States Supreme Court held that
"suppression of evidence favorable to an accused upon request violates due
process where the evidence is material to guilt or punishment, irrespective of
the good faith or bad faith of the prosecution." Its progeny is the 1935
case of Mooney v. Holohan which laid down the proposition that a prosecutor’s
intentional use of perjured testimony to procure conviction violates due
process. Thus, evolved jurisprudence firming up the prosecutor’s duty to
disclose to the defense exculpatory evidence in its possession. The rationale
is well put by Justice Brennan in Brady — "society wins not only when the guilty
are convicted but when criminal trials are fair." Indeed, prosecutors
should not treat litigation like a game of poker where surprises can be sprung
and where gain by guile is not punished. (Citations omitted.)
Nevertheless,
we ruled that with the production of the first Sworn Statement, “(p)etitioners
thus had the fair chance to explain to the DOJ Panel then still conducting
their preliminary investigation the exculpatory aspects of this sworn statement.
Unfortunately for petitioners, the DOJ Panel still found probable cause to
charge them despite the alleged material discrepancies between the first and
second sworn statements of Alfaro. For reasons we have expounded, this finding
of probable cause cannot be struck down as done with grave abuse of
discretion.”
It appeared, however, that the prosecution would continue
to suppress Alfaro’s first Sworn
Statement. When bail hearings commenced on 9 October 1995, the prosecution
started with a presentation of the testimony of Alfaro. On 16 October 1995,
Alfaro was allowed by the trial court to testify on the circumstances
surrounding the execution of the two Sworn Statements, notwithstanding that
said statements were not presented for proper identification and marking. On
cross-examination, Alfaro admitted that in the first Sworn Statement were
answers that were not hers, but were only supplied by the NBI agents then
present during the statement-taking. For instance, she stated that the answer to question number
8 is not true, because she only finished second year and was not actually a
college graduate.
On the third day of Alfaro’s cross-examination, the
prosecution objected to questions referring to the first Sworn Statement on the
ground that it was made without the assistance of counsel. The trial court
sustained the objection.[14] The accused’s counsel
orally sought reconsideration, but this was denied.[15] When counsel moved for
reconsideration, the trial court denied the motion “with finality.”[16] The accused’s counsel then
showed the trial court their copy of the first Sworn Statement containing Atty.
Mercader’s signature and certified as a true copy by Asst. Prosecutor Zuno. In
turn, Assitant Prosecutor Atty. Zuno, who had the duplicate original thereof, failed
or refused to produce the statement despite repeated requests from the accused
Webb. (It was produced only on 24 October 1995.) Alfaro’s cross-examination
continued, with no question pertaining to the first Sworn Statement allowed.
On 8 November 1995, the trial court issued its Order dated
30 October 1995[17] in open court. The Court
rejected the admissibility of the first Sworn Statement and barred its use for
the purpose of impeaching Alfaro’s credibility or for refuting her subsequent
statements. All previous questions and answers connected with the said Sworn
Statement were also ordered expunged from the records. The trial court reasoned
that the said Sworn Statement was an “illegally obtained evidence, and
therefore, cannot be used either directly or indirectly against Alfaro.” Citing
Section 12, Article III of the Constitution, the trial court concluded that
“Alfaro could not be cross-examined by the defense on the contents of the said
affidavit in order to discredit her statement dated May 22, 1995 and her
testimony in open court.”[18]
This
Order led accused Webb et al. to seek Judge Tolentino’s inhibition and to
incorporate the above instance as part of their proof of the trial judge’s
bias. The Court of Appeals denied the Petition, and we affirmed the denial in
the manner laid out in the preceding discussion.
Failure to
Preserve Evidence
As
discussed in the preceding section, the accused’s right to access to evidence
necessitates in the correlative duty of the prosecution to produce and permit
the inspection of the evidence, and not to suppress or alter it. When the
prosecution is called upon not to suppress or alter evidence in its possession
that may benefit the accused, it is also necessarily obliged to preserve the
said evidence. To hold otherwise would be to render illusory the existence of
such right.
The advent of
DNA technology prompted this Court’s promulgation of the New Rules for DNA
Evidence.[19] As DNA evidence provides objective proof of
identification and may be obtained from evidence left in the scene of the crime
or in the victim’s person, it also gives new meaning to the above duty of the
prosecution.
The
prosecution did not fare well when measured against this standard.
Alfaro testified that the group had earlier agreed that Webb would be
the first to rape Carmela. When Alfaro said she saw Webb pumping Carmela, while
two bloodied bodies were on top of the bed, the former was so shocked that she “stepped back and turned around to go
outside.” On her way out, she met Ventura near the door. He said, “Prepare
escape.” Things had apparently gone awry, so they left the place. The
NBI proclaimed that the semen samples they had collected from Carmela were
preserved in slides and remained intact. Thus, in order for the prosecution’s
theory to be consistent, pursuant to the quantum required in criminal cases,
the DNA evidence in the slides must positively match that from accused Webb.
Based on the foregoing circumstances, the defense counsel accordingly
filed a Motion to Direct NBI to Submit Semen Specimen to DNA Analysis during
the course of the trial. Several exchanges of pleadings on the matter were
filed before the trial court, and at no time was the timeliness of the filing
of the Motion at issue. It could not
have been, considering that the Motion was timely filed during the course of
the trial. While the Motion was filed six years after the crime was committed,
the trial of the accused herein did not start until more than four years after
the commission of the crime.
The trial
court denied the Motion on 25 November 1997, holding that since more than six
(6) years had lapsed since the commission of the crime, there was no assurance
that the semen specimen remained uncontaminated. Also, the trial court held
that Webb was not able to show that the proper procedure for the extraction and
preservation of the semen sample had been complied with. Finally, the trial
court held that a DNA test would only lead to confusion of the issues.
However, as
correctly held by Justice Lucenito Tagle in his Dissenting Opinion, the trial
judge’s objections to the DNA testing were based on mere conjectures that ran
against the presumption of regularity in the performance of official duty.
Meanwhile,
the idea that a negative DNA test result would not have necessarily exculpated
Webb, because previous sexual congress by Carmela with another man prior to the
crime could not be discounted, would unrealistically raise the bar of evidence
– and for the wrong party, i.e., for the part of the defense, instead of for the
prosecution. If a negative DNA test
result could not be considered as providing certainty that Webb did not commit
the crime, would it not have at least cast a reasonable doubt that he committed
it?
Moreover, the
argument against the relevance of the semen sample – that the presence of semen
was not necessary to prove that rape was committed – is not in point. What the
defense was after when it sought DNA testing was neither to prove nor to
disprove the commission of rape, but to pinpoint the identity of the assailant.
In this case, semen with spermatozoa was in fact obtained, and it did possess
exculpatory potential that might be beneficial to the accused. In Tijing v. Court of Appeals,[20] we held that “courts should apply the results
of science when competently obtained in aid of situations presented, since to
reject said result is to deny progress.” Hence, it is the constitutional duty
of the trial judge to afford all possible means to both the NBI and the counsel
for accused, in order that such evidence may be scrutinized in open court. The
Court held in People v. Yatar:
DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case.
DNA evidence
collected from a crime scene can link a suspect to a crime or eliminate one
from suspicion in the same principle as fingerprints are used. Incidents
involving sexual assault would leave biological evidence such as hair, skin
tissue, semen, blood, o saliva which can be left on the victim’s body or at the
crime scene. Hair and fiber from clothing, carpets, bedding or furniture could
also be transferred to the victim’s body during the assault. Forensic DNA
evidence is helpful in proving that there was physical contact between an
assailant and a victim. If properly collected from the victim, crime scene or
assailant, DNA can be compared with known samples to place the suspect at the
scene of the crime.[21]
Thus,
when the present case reached this Court and a similar Motion was filed, we resolved to grant[22] petitioner’s motion to allow DNA testing of
the semen sample collected from the victim in order to compare it with Webb’s
DNA. Unfortunately, said semen sample appears to have been lost by the NBI,
which had custody thereof.
Does the
prosecution’s loss of this potentially exculpatory evidence result in a
fundamentally unfair trial of the accused that entitles him to a judgment of
acquittal?
In resolving this question in the negative, the Dissent
cites Youngblood v. Arizona,[23]
a United States Supreme Court Decision, which held that the prosecution’s
failure to keep intact a piece of potentially exculpatory evidence does not
result in a due process violation, unless the accused is able to show that the
prosecution acted in bad faith.
However, reliance on Youngblood is
ill-advised.
First, Youngblood was
promulgated more than two decades ago, in 1988, when DNA testing was still in
its infancy. Since then, the technology has grown by leaps and bounds.[24] In the United States, there are now only eight
(8) states that have not adopted statutes allowing post-conviction DNA testing[25], with
some requiring the correlative duty to preserve DNA evidence. So far, 261
convicts in the United States have been exonerated as a result of
post-conviction DNA testing.[26]
Second, Youngblood was not a product of a unanimous Decision.
The majority opinion in Youngblood was penned by Justice Rehnquist and
concurred in by Justices White, O’Connor, Scalia and Kennedy, with Justice Stevens
concurring with the result and writing a Separate Opinion. Justice Blackmun
wrote a strong Dissent, which was joined in by Justices Brennan and Marshall.
A critique[27] of the Youngblood
decision points out that there are two competing due process interests therein.
On the one hand is adjudicative fairness, which “seeks to ensure that
the accused receives meaningful protection in court, in other words, reliable
fact finding and a fair trial. … [and which] manifests itself in an assessment
of the materiality of evidence and prejudice to the accused …[as] paramount in
determining whether a due process violation has occurred.” On the other hand is
instrumentalism, which seeks “to impose restraints on the state. …[by]
punishing the state for police and prosecutorial misconduct. … to deter future
misconduct and to create a prophylactic effect. In measuring the misconduct,
one examines the subjective intent of the officer and whether the officer acted
in good faith or bad faith. Under this approach, the focus is on the state, not
the individual. Moreover, the focus on the state and on deterring official
misconduct invites an examination of the costs of providing additional
process.”
The
majority opinion in Youngblood focused on the state of mind of the
police officer rather than on materiality and fairness to the accused. However, in his
Separate Opinion wherein he registered his reservation to the bad faith
standard being laid out by the majority, Justice Stevens recognized that "there may well be
cases in which the defendant is unable to prove that the State acted in bad
faith but in which the loss or destruction of evidence is nonetheless so
critical to the defense as to make a criminal trial fundamentally unfair."
While the earlier case Brady v. Maryland[28]
held that due process violation could be committed even without bad faith,[29] the majority distinguished
Youngblood from Brady by holding that the evidence in Brady
was clearly favorable to the accused, while that in Youngblood was only potentially
exculpatory.
Justice Blackmun opined, though, that
it was impossible for the accused to prove that a particular piece of evidence
was exculpatory when, precisely, it was no longer in existence. Justice
Blackmun also disapproved of the bad-faith standard, because “(a)part from the
inherent difficulty a defendant would have in obtaining evidence to
show a lack of good faith, the line between ‘good faith’ and ‘bad faith’ is
anything but bright, and the majority’s formulation may well create more
questions than it answers.”
Justice Blackmun proposed the following alternative to the
bad-faith standard:
Rather than allow a State’s ineptitude to saddle a defendant with an impossible burden, a court should focus on the type of evidence, the possibility it might prove exculpatory, and the existence of other evidence going to the same point of contention in determining whether the failure to preserve the evidence in question violated due process. To put it succinctly, where no comparable evidence is likely to be available to the defendant, police must preserve physical evidence of a type that they reasonably should know has the potential, if tested, to reveal immutable characteristics of the criminal, and hence to exculpate a defendant charged with the crime.
Justice Blackmun then gave his opinion on how to
balance the defendant’s rights and the duty imposed upon the law enforcement to
preserve evidence:
Due process must also take into account the burdens that the preservation of evidence places on the police. Law enforcement officers must be provided the option, as is implicit in Trombetta, of performing the proper tests on physical evidence and then discarding it. Once a suspect has been arrested, the police, after a reasonable time, may inform defense counsel of plans to discard the evidence. When the defense has been informed of the existence of the evidence, after a reasonable time, the burden of preservation may shift to the defense. There should also be flexibility to deal with evidence that is unusually dangerous or difficult to store.
Third, it is not amiss to note that in the year 2000, the
injustice of the Youngblood decision was brought into sharp relief when
more sophisticated DNA technology was used on the degraded evidence. The
technology yielded a DNA profile that (1) exonerated Larry Youngblood of the
crime charged (child molestation, sexual assault and kidnapping) and (2)
enabled the police to find the real offender. Excerpts from the website of The
Innocence Project, an organization advocating the use of DNA evidence, are as
follows:
Larry Youngblood was convicted in 1985 of child molestation, sexual assault, and kidnapping. He was sentenced to ten years and six months in prison. In October 1983, a ten year old boy was abducted from a carnival in Pima County, Arizona, and molested and sodomized repeatedly for over an hour by a middle aged man. The victim was taken to a hospital, where the staff collected semen samples from his rectum as well as the clothing he was wearing at the time of the assault.
Based on the boy’s description of the assailant as a man with one disfigured eye, Youngblood was charged with the crime. He maintained his innocence at trial, but the jury convicted him, based largely on the eyewitness identification of the victim. No serological tests were conducted before trial, as the police improperly stored the evidence and it had degraded. Expert witnesses at trial stated that, had the evidence been stored correctly, test results might have demonstrated conclusively Youngblood’s innocence.
Larry Youngblood appealed his conviction, claiming the destruction of potentially exculpatory evidence violated his due process rights, and the Arizona Court of Appeals set aside his conviction. He was released from prison, three years into his sentence, but in 1988, the Supreme Court reversed the lower court’s ruling, and his conviction was reinstated (Arizona v. Youngblood, 488 U.S. 51). Youngblood remained free as the case made its way through the Arizona appellate court system a second time, but returned to prison in 1993, when the Arizona Supreme Court reinstated his conviction.
In 1998, Youngblood was released on parole, but was sent back to prison in 1999 for failing to register his new address, as required by Arizona sex offender laws. In 2000, upon request from his attorneys, the police department tested the degraded evidence using new, sophisticated DNA technology. Those results exonerated Youngblood, and he was released from prison in August 2000. The district attorney’s office dismissed the charges against Larry Youngblood that year.
Shortly thereafter, the DNA profile
from the evidence was entered into the national convicted offender databases.
In early 2001, officials got a hit, matching the profile of Walter Cruise, who
is blind in one eye and currently serving time in Texas on unrelated charges.
In August 2002, Cruise was convicted of the crime and sentenced to twenty-four years
in prison.[30]
In view of
all the foregoing salient objections to Youngblood, it should not be
adopted in this jurisdiction.
While it is a
laudable objective to inquire into the state of mind of the prosecution and
punish it when it has committed prosecutorial misconduct, there are times when,
undoubtedly, whether through malice or plain ineptitude, its act or omission
results in plain injustice to the accused.
In our various decisions relating to interlucotory orders and incidents
pertaining to this case, this court’s adherence to instrumentalism has led to
our finding in each instance that there was no due process violation committed
against petitioner, because bad faith was not shown by the prosecution or the
trial judge.
However, since “the task of the pillars of
the criminal justice system is to preserve our democratic society under the
rule of law, ensuring that all those who appear before or are brought to the
bar of justice are afforded a fair opportunity to present their side,”[31] the measure of whether the
accused herein has been deprived of due process of law should not be limited to
the state of mind of the prosecution, but should include fundamental principles
of fair play. Hence, as we write finis
to this case, it is time we evaluate the total picture that the prosecution’s
acts or omissions have wrought upon the accused’s rights with each seemingly
innocuous stroke, whatever its intention may have been.
The various
violations of the accused’s rights have resulted in his failure to secure a just
trial. As such, the judgment of conviction cannot stand.
MARIA
LOURDES P. A. SERENO
Associate Justice
[1] Go v. Court of Appeals, G.R. No. 101837, 11 February 1992, 206 SCRA 138.
[2] People v. Teehankee, Jr., G.R. Nos. 111206-08, 6 October 1995, 319 Phil.128 (1995).
[3] Decision dated 13 September 1993 issued by the
Regional Trial Court of Makati, Branch 63 in Criminal Case Nos. 91-7135 to 37.
[4] Lejano v. People, G.R. Nos. 176389 and 176864, 20 April 2010.
[5] Information,
Regional Trial Court rollo, vol. 1, p. 34.
[6] Tan v. Gallardo, G.R. Nos. L-41213-14 October 5, 1976, 73 SCRA 306, citing Suarez v. Platon, et al., 69 Phil. 556 (1940).
[7] The Prosecution Role in Upholding the Right to a Fair Trial and Responding to Victims/ Witnesses, The Prosecutor Papers, November 2005 at 10.
[8] R v. Boucher, (1954) S.C.R. 16.
[9] Stuart, Don, CHARTER JUSTICE IN CANADIAN CRIMINAL LAW, 2001.p.7.
[10] G.R.
No. 113630, 5 May 1994, 232 SCRA 192.
[11] Cramm, Paul, D. The Perils of Prosecutorial
Misconduct, http://www.24-7pressrelease.com/press-release/theperils-of-prosecutorial-misconduct-102380.php accessed on 10 December 2010.
[12] Montemayor v. Bermejo, Jr., A.M. No. MTJ-04-1535, 12 March 2004, 425 SCRA 403.
[13] G.R. No.127262, 24 July 1997, 276 SCRA 243, 342 Phil. 206.
[14] TSN, 19 October 1995, pp. 23-24.
[15] Id., pp. 25-33.
[16] Id., pp. 33-45.
[17] Order, Regional Trial Court rollo, vol. 1, pp. 852-860.
[18] Id. at pp. 7-8.
[19] A.M. No. 06-11-5-SC effective 15 October 2007.
[20] G.R. No. 125901, 8 March 2001, 406 Phil. 449.
[21] G.R. No. 150224, 19 May 2004, 428 SCRA 504.
[22] Resolution dated 20 April 2010.
[23] 488 U.S. 51 (1988).
[24] In his Article, OLD BLOOD, BAD BLOOD, AND YOUNGBLOOD: DUE PROCESS,
LOST EVIDENCE, AND THE LIMITS OF BAD FAITH, 86
Wash. U. L. Rev. 241, Norman C. Bay reported (pp. 282-283):
Forensic DNA typing was not
developed until 1985, when Dr. Alec Jeffreys, an English scientist, used the
technique to exonerate one suspect in the sexual assault and murder of two
young girls and to inculpate another. Three years later, in 1988, the same year
Youngblood was decided, the FBI began testing DNA. That same year, for the
first time, a state appellate court upheld the admission of DNA evidence in a
criminal case. The crime at issue in Youngblood occurred well before the advent
of DNA testing, and the Supreme Court decided the case when DNA testing was in
its infancy, still embroiled in litigation over its reliability and
admissibility.
In the two decades since it was first used,
forensic DNA typing has continued to progress. At this point, scientists have
developed three generations of tests. The current, dominant generation of
technology is the polymerase chain reaction (PCR). This approach analyzes DNA
taken from the nucleus of a cell. PCR allows the DNA in a biological sample to
be replicated; only a minute amount of DNA is needed and the sample from which
it comes can be highly degraded. Only a few cells are required for reliable
results. Usable DNA can be recovered from a myriad of items, including computer
keyboards, hats, bandannas, eyeglasses, facial tissue, cotton swabs, dirty
laundry, toothpicks, chewing gum, cigarette butts, envelope seals, the mouths
of bottles, the rims of glasses, or urine stains.
PCR is usually followed by short tandem repeat
(STR) testing, which compares thirteen specific regions, or loci, found on
nuclear DNA. The odds that two unrelated individuals will share the same
thirteen-loci DNA profile can be as high as one in a billion or more. Thus,
PCR-STR analysis is both highly sensitive and discriminating. It is sensitive
in that small amounts of biological material can be tested. It is
discriminating in that the results of a thirteen-loci comparison generate
unique DNA profiles that can establish guilt or innocence to a practical
certainty in certain types of cases.
Yet another powerful forensic DNA tool has
emerged: mitochondrial DNA (mtDNA) testing. Unlike STR analysis, this technique
examines the DNA contained in the mitochondria of a cell, not its nucleus. This
is important because some biological material, including hair shafts, bones,
and teeth, lack nuclei, but possess mitochondria. In some cases, especially
those involving decomposed tissue, only teeth or bones may remain.
Mitochondrial DNA testing allows for the study and comparison of DNA in such
material. One drawback to mtDNA is that it is not as discriminating as STR.
Mitochondrial DNA is passed maternally; consequently, siblings and maternal
relatives have the same mtDNA, and the test cannot distinguish among them.
Nonetheless, mtDNA provides a powerful supplement to STR and may allow for
analysis when none is otherwise available. Among other things, mtDNA has
identified one of the unknown soldiers in the Tomb of the Unknown Soldier in
Arlington National Cemetery, the remains of Czar Nicholas II and his family,
and the likely offspring of Thomas Jefferson and Sally Heming.
Since 1985, the field of forensic DNA typing
has continued to progress. Emerging Y-chromosome analysis focuses on variations
in male genetic material; it may prove to be helpful in sexual assault cases
involving multiple male perpetrators. Hand-held or portable devices with
"labs-on-a-chip" may be developed that allow for rapid DNA testing at
a crime scene. Robotic systems are already being used to help process DNA
samples. Similarly, computer software compares and interprets STR data. In
short, forensic DNA typing will continue to become increasingly automated,
faster, cheaper, and more accurate. This, in turn, ought to affect the due
process calculus when the state loses or destroys potentially exculpatory
evidence. The context in which such problems arise today is entirely different
than when Youngblood was decided.” (Citations omitted.)
[25] 98 J. Crim. L. & Criminology 329
[26] The Innocence Project. <http://www.innocenceproject.org> accessed on 12 December 2010.
[27] 86 Wash. U. L. Rev.
241.
[28] 373 U.S. 83 (1963).
[29] The Court in Brady held: "The suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution."
[30] The Innocence Project – Know the Cases: Browse
Profiles: Larry Youngblood, <http://www.innocenceproject.org/Content/Larry_Youngblood.php>
accessed on 12/13/2010
[31] Tan v. People, G.R. No. 173637, 21
April 2009, 586 SCRA 139.