“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.