Perpetuation of
testimony in heinous crimes
By: Tranquil G.S. Salvador III
“There is a void in gathering the testimonies of vital
witnesses immediately after the commission of heinous crimes.”
I usually base my articles on existing laws and
jurisprudence, but I am making an exception for this week’s article. I intend
to bring to the attention of those who will assume positions in the 19th
Congress of the Philippines, the absence of a law on gathering competent and
relevant testimonies immediately after the commission of heinous crimes,
especially before the case is filed in criminal courts, or when the witnesses
are not found in or are outside of the Philippines.
Crimes are classified as heinous for being grievous,
odious, and hateful. These acts are inherently wicked, vicious, atrocious, and
perverse, making them repugnant to the common standards and norms of decency
and morality (Republic Act 7659). Examples are treason, parricide, murder,
rape, kidnapping and serious illegal detention, robbery with violence,
destructive arson, and plunder, among others.
While there is a legal process at the level of the
Office of the Prosecutor (OP) that determines whether a crime has been probably
committed by the suspect, it may take time before the OP ascertains it. During
this period, the witnesses of both the offended party and the accused may be
vulnerable to duress, violence, undue influence, or physical harm that may
later affect the truthfulness and accuracy of their testimonies in court.
There is evidently a gap in the Rules on how to
protect the testimonies of the witnesses before the case is filed by the OP in
court and the State commences to prosecute. This is a cause for concern of lawyers
and parties in criminal cases because witnesses may depart from the Philippines
with no definite date of return, may die, become sick or infirm, or be
oppressed or harassed by interested parties, before they are presented in
court.
Some say that affidavits submitted before law
enforcement officers and prosecutors during preliminary investigation are
sufficient protection for these testimonies, but these are worthless in the
absence of an opportunity that should be given to the adverse party to cross-examine
the witnesses. This is because cross-examination only takes place during the
deposition or trial for a case in court and not during the preliminary
investigation.
Others also say that there are provisions in the Rules
on Criminal Procedure that deal with a witness who is sick or infirm, about to
depart from the Philippines, or is located more than 100 kilometers from the
venue of the hearing. However, these provisions on the Conditional Examination
of witnesses for the prosecution and accused only apply if the criminal case
has been filed in court and the necessity of preserving the testimony arises
before the actual trial (Sections 12, 13 and 15, Rule 119).
Additionally, conservative legal thinkers say that
there is a provision in the Rules on Criminal Procedure on the discharge of an
accused as a state witness (Section 117, Rule 119). However, this provision
provides only the immunity of the discharged accused from conviction and
preservation of his testimony in court. It does not include the preservation of
witnesses’ testimonies before the filing of a criminal case.
Neither does the Witness Protection, Security and
Benefit Act (Republic Act 6981), offer sufficient protection for the gathering
of witness testimonies in heinous crimes or felonies because: (a) not all
material witnesses may qualify under the witness protection program and even if
they do, they will have to wait for trial; (b) while witnesses are protected
from threat, intimidation, or harassment, their testimonies may still be corrupted
before they are presented in court; and (c) witnesses may linger in safehouses
that can lead them to forget the substance of their testimonies.
There is also the potential danger of witnesses being
threatened, intimidated, or harassed by their guards, who may be used as
conduits by interest groups to distort the witnesses’ testimonies when
presented in court. Furthermore, the female witnesses may, due to unnecessary
personal familiarity with their guards, be susceptible to sexual indiscretion
which may result in unintentional pregnancies.
Risk reduction may be achieved by competent courts
receiving testimonies (not necessarily the court where the criminal cases are
assigned) immediately after the occurrence of the crimes, provided that
witnesses in these cases are subject to cross-examination by the adverse party
or suspect. Unfortunately, there are no laws on this matter.
Perpetuation of testimony would have been an ideal
procedural option to preserve the testimonies of witnesses before a case is
filed in court. Unfortunately, perpetuation of testimony in our Rules applies
only to civil or commercial litigation either by: (a) taking the deposition
(testimony) solely in the action initiated for that purpose; or (b) a
deposition pending appeal in an already pending civil case (Rule 24, Rules of
Civil Procedure).
The perpetuation of testimony is utilized when a
person threatened with or exposed to a suit is unable to bring the issue to an
immediate judicial determination. It may also be availed by a person who intends
to institute an action for the purpose of establishing his rights regarding a
particular matter but is unable to do so (Evidence, Francisco, 1996 citing 16
Am. Jur. 702).
The provision on perpetuation of testimony,
specifically Rule 134, was originally part of the Rules on Evidence adopted by
the Supreme Court on March 14, 1989. However, when the Rules of Civil Procedure
was amended in 1997, the provision on perpetuation of testimony was transferred
to Rule 24 to form part of the modes of discovery now known as Depositions
before action or Pending appeal.
In the case of People v. Sergio and Lacanilao, the
Supreme Court was faced with the problem of applying Rule 23 on Depositions
Pending Action, used in civil cases, to a criminal case instead of using the
Conditional examination of witness for the prosecution, which is under the
Rules on Criminal Procedure (Section 15, Rule 119). This legal issue was
brought about by the conditions laid down by the Indonesian government in
taking the written interrogatories of the convicted Marie Jane Veloso (Veloso)
who is imprisoned in Yogyakarta, Indonesia.
The Indonesian authorities imposed the following
conditions on the taking of Veloso’s testimony, that: (a) she will remain in
detention in Yogyakarta, Indonesia; (b) no cameras shall be allowed; (c) the
lawyers of the parties shall not be present; and (d) the questions shall be
forwarded in writing (G.R. No. 240053, October 9, 2019).
The written interrogatories were supposed to be used
in the prosecution of Cristina Sergio and Julius Lacanilao in the Philippines
for qualified human trafficking, illegal recruitment, and estafa. The request
for written interrogatories was prompted by a statement of Veloso in her
Sinumpaang Salaysay that a certain “Ike”, brother of “Prince” (boyfriend of
Cristina), “handed to her the bag containing the prohibited drugs”.
In applying Rule 23 of the Rules of Civil Procedure to
a criminal case, the Supreme Court was guided by the principle that rules shall
be liberally construed in order to promote their objective of securing a just,
speedy and inexpensive disposition of every action and proceeding. To deny the
prosecution’s motion to take deposition by written interrogatories is to
silence Veloso and deny her and the People of their right to due process (G.R.
No. 240053, October 9, 2019).
Evidently, there is a void in gathering the testimonies of vital witnesses immediately after the commission of heinous crimes. Solutions must be forwarded for the protection of the testimonies of witnesses during the period spanning from preliminary investigation to the filing of the criminal information in court; as well as for the gathering of testimonies when witnesses are outside of or not found in the Philippines for reasons beyond their control.
(Manila Standard, April 1, 2022)