Criminal Procedure Constitutional Rights of the Accused

7/28/2019 Criminal Procedure Constitutional Rights of the Accused

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Criminal Procedure

Constitutional Rights of the

Accused

Harriz F. Dela Cruz

09-18-001

Paralegal - 41

Judge Tita B. Alisuag

Professor


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Article III

Bill of Rights of the Constitution

Section 1. Right to due process

Section 1. Right to equal protection of the laws

Section 3. Right to inadmissibility of evidences obtained under Setion 2

Section 11. Right to a free access to the courts

Section 11. Right to an adequate legal assistance

Section 12(1). Right to be informed to remain silent

Section12(1). Right to counsel

Section12(1). Right to be informed of such rights

Section 12(2). Right against torture

Section 12(2). Right against secret detention

Section 12(3). Right to inadmissibility of evidence against him obtained from

any confession

Section 13. Right to bail

Section 14(1). Right to due process for a criminal offense

Section 14(2). Right to be presumed innocent until presumed guilty

Section 14(2). Right to be heard by himself and to be heard his counsel

Section 14(2). Right to be informed of the cause and nature of the

accusations against him


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Section 14(2). Right to a speedy, impartial, and public trial

Section 14(2). Right to confront the witnesses

Section 14(2). Right to present evidence

Section 16. Right to a speedy disposition of his case

Section 17. Right against self-incrimination

Section 19(1). Right against excessive fines

Section 19(1). Right against cruel, degrading or inhuman punishment

Section 21. Right against double jeopardy

Section 22. Right against ex-post facto laws

Under the doctrine of supremacy of the constitution, the constitution is

the supreme law of the land, it is above all laws, and all laws must conform

to it, otherwise it is inoperative, creates no right, no obligation, in short, no

void.

Right is something that is due to a person by just claim, legal

guarantee, or moral principle.1 It gives protection the accused and serves as

a barrier.

The Constitutional Rights of the Accused are those rights of the

accused which were provided by the Constitution, specifically provided under

Article III Bill of Rights of 1987 Philippine Constitution. These rights are ofparamount consideration, and are designed to protect the accused from any

possible abusive acts of the government. It is intended against the State and

in favor of the accused.

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1 Blacks Law Dictionary, page 4120, (8th edition 2004)

Since the Constitution is the highest law of the land, as it provides the

rights of the accused, it fully guarantees them other than any statutes. It

constrains the government to be negligent in promulgating judgments to

avoid injustice and mistrial, and more importantly to prevent mistakes of

judgment convicting innocent people, so that administration of justice will be

more efficient.

Constitutional Rights of the accused

Article III, Bill of Rights, of the 1987 Constitution provides for the

following rights:

1. All persons shall have the right to a speedy disposition of their

cases before all judicial, quasi-judicial, or administrative bodies.

(Sec. 16)

2. No person shall be held to answer for a criminal offense without due

process of law. (Sec. 14[1])

3. All persons, except those charged with offenses punishable by

reclusion perpetua when evidence of guilt is strong, shall, before

conviction be bailable by sufficient sureties, or be released on

recognizance as may be provided by law.

The right to bail shall not be impaired even when the privilege

of the writ of habeas corpus is suspended.

Excessive bail shall not be required.

4. 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 ad

cause of the accusation against him, to have speedy, impartial, and


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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. (Sec. 14 [2])

5. No person shall be compelled to be a witness against himself. (Sec.

17)

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. (Sec. 12[1])

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. (Sec. 12[2])

Any confession or admission obtained in violation of this or

Section 17 hereof shall be inadmissible in evidence against him.

(Sec. 12[3])

6. Excessive fines shall not be imposed, nor cruel, degrading or

inhuman punishment inflicted. (Sec. 19[1])


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7. No person shall be twice put in jeopardy of punishment for the

same offense. If an act is punished by a law and an ordinance,

conviction or acquittal under either shall constitute a bar to another

prosecution for the same act. (Sec. 21)

8. Free access to the courts and quasi-judicial bodies and adequate

legal assistance shall not be denied to any person by reason of

poverty. (Sec. 11)

Rights of the accused which may be waived and rights which may

not be waived.

A right which may be waived is the right of the accused to

confrontation and cross-examination. A right which may not be waived is the

right of the accused to be informed of the nature and cause of the

accusation against him.

The reason or principle underlying the difference between rights which

may be waived and rights which may not be waived is that those rights

which may be waived are personal, while those rights which may not be

waived involve public interest which may be affected. (2 Moran, Rules of

Court, 1952 Edition, 748)

Procedural right. It is a right that derives from legal or administrative

procedure; a right that helps in the protection or enforcement of a

substantive right. Cf. substantive right. Blacks Law Dictionary 8th Edition,

2004

Substantial right. It is an essential right that potentially affects the

outcome of a lawsuit and is capable of legal enforcement and protection, as

distinguished from a mere technical or procedural right. Blacks Law

Dictionary 8th Edition, 2004


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Substantive right. It is a right that can be protected or enforced

by law; a right of substance rather than form. Cf. procedural right. Blacks

Law Dictionary 8th Edition, 2004

1987 Constitution is the story of governmental power and

constitutional limits on it found in the Bill of Rights.

The totality of governmental power is contained in three great powers:

police power, power of eminent domain, and the power of taxation. These

belong to the very existence of government and without them no

government can exist. Therefore, inherent powers of the government which

the constitution does not grant to the government, but only define and

delimit them and allocate their exercise among various government

agencies. The story of constitutional jurisprudence is the story of great

minds striving to strike a balance between governmental power and personal

freedom.

Chief Justice Shaw stated that police power is the power vested in the

legislature by the constitution to make, ordain, and establish all manner of

wholesome and reasonable laws, statues, and ordinances, either with

penalties or without, not repugnant to the constitution, as they shall judge

to be for the good and welfare of the commonwealth, and of the subjects of

the same.

The police power has been used to justify public health, justify public

safety, public morals. The almost awesome character of police power shown

by the vastness of its reach comes out in greater relief when seen together

with the presumption of constitutionality which its exercise enjoys. The

judiciary should not lightly set aside legislative action when there is no clear

invasion of personal or property rights under the guise of police regulation.


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This vast power is, however, must be exercised within the limits set by

the constitution. In the words of the leading case of U.S. v. Toribio, the

legislative determination of what is a proper exercise of its police power is

not final or conclusive, but is subject to the supervision of the courts. The

exercise of such police power insofar as it may affect the life, liberty or

property of any person is subject to the judicial inquiry. And exercising such

power must be measured with due process clause and the equal

protection clause.

Finally, it should be noted that the restrictions found in the Bill of

Rights, as constitutional law, are directed against the state. They do not

govern the relations between private persons.

The word person includes not only the citizens but also aliens,

private corporations without regard to any differences of race, color, or

nationality.

Article III, Section 1. No person shall be deprived of life, liberty or

property without due process of law, nor shall any person be denied

the equal protection of the laws.

Bill of Rights: Protection against abuse of power.

Justice Malcolm elaborated:

The right to liberty guaranteed by the Constitution includes that right

to exist and the right to be free from arbitrary personal restraint or

servitude. The term cannot be dwarfed into mere freedom from physical

restraint of the person of the citizen, but is deemed to embrace the right of

man to enjoy the faculties to which he has endowed by his Creator, subject

only to such restraints as are necessary for the common welfare.


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Malcolm likewise borrowed from Apolinario Mabini calling liberty

freedom to do right and never wrong. . . ever guided by reason and the

upright and honorable conscience of the individual.

Protected property has been deemed to include vested rights, or a perfected

homestead, or a final judgment. It includes the right to work and the right to

earn a living. Ones employment, profession, trade, or calling is protected

property.

The constitutional protection of the right to life is not just a protection

of the right to be alive or to the security of ones limb against physical harm.

The right to life is also the right to a good life.

The poor are the oppressed precisely because they are poor. In their

regard therefore, property is as important as life and their liberty. Shylock

was right: You take my life, when you do take the means whereby I live.

Under the present provision, understood in the light of established

jurisprudence on the position of property in the hierarchy of constitutional

values, property stands a good chance of serving and enhancing the life and

liberty of all.

Due process as procedural fairness

The legislature must provide due process in the enforcement of law.

Thus, due process was understood to relate chiefly to the mode of procedure

which government agencies must follow; it was understood as a guarantee

of procedural fairness. Its essence was expressed by Daniel Webster as a

law which hears before it condemns.

Due process, however, is not always judicial process. This has always

been recognized. Due process does not always include actor, reus, judex,

regular allegations, opportunity to answer and a trial according to some

settled course of judicial proceedings.


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Substantial evidence means such reasonable evidence as a reasonable

mind might accept as adequate to support a conclusion.

What is required is not actual hearing but a real opportunity to be

heard. Thus, one who refuses to appear at a hearing is not thereby denied

due process if a decision is reached without waiting for him.

Substantive due process

If all that the due process clause requires is proper procedure, then

life, liberty, and property can be destroyed, provided, proper forms are

observed. Hence, the clause must be understood to guarantee not just forms

of procedure but also the very substance of life, liberty and property. The

due process clause must be interpreted both as a procedural and as a

substantive guarantee. It must be a guarantee against the exercise of

arbitrary power even when the power is exercised according to proper forms

and procedure.

Shall the judiciary permit a government of men instead of a

government of laws to be set up in the Philippine Islands? the courts will

assist in retaining it as a government of laws, and not of men, and that no

official, however high, is above the law, and that the courts are the forum

which function is to safeguard individual liberty and to punish official

transgressors.

Equal protection

The equal protection clause is a specific constitutional guarantee of the

Equality of the Person. The equality it guarantees is legal equality or, as it

usually put, the equality of all persons before the law. Under it, each

individual is dealt with as an equal person in the law, which does not treat

the person differently because of who he is or what he is or what he

possesses. The goddess of Justice is portrayed with a blindfold, not because


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she must be hindered in seeing where the right lies, but that she may not

discriminate against suitors before her, dispensing instead an even handed

justice to all.

Equality in the criminal process

One clear consequence of economic inequality is inequality in the field

of criminal justice. In a criminal prosecution the accused finds himself face to

face with the State and all its resources of wealth and power. Even the rich

can feel intimidated by the resources that are at the disposal of the State.

How much more helpless will a poor man feel when he finds himself ranged

against the power of the State? It is for this reason that the law takes a

special interest in the poor when brought before the bar of justice to answer

for a crime.

Article III, Section 11. Free access to the courts and quasi-judicial

bodies and adequate legal assistance shall not be denied to any

person by reason of poverty.

This constitutional provision is the basis for the provision of Rule 3,

Section 22, of the New Rules of Court allowing litigation in forma pauperis.

Those protected include low-paid employees, domestic servants and

laborers. They need not be persons so poor that they must be supported at

public expense. It suffices that plaintiff is indigent and the difference

between paupers and indigent persons is that the latter are persons who

have no property or sources of income sufficient for their support aside from

their own labor though self-supporting when able to work and in

employment.

Article III, Section. 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


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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.

The provision is of American provenance coming as it does principally

from two American Supreme Court decisions: Escobedo v. Illinois and

Miranda v. Arizona. Escobedo spoke of the rights of person in custodial

investigations and specified custodial investigation as the time when the

investigation is no longer a general inquiry into an unsolved crime but has

begun to focus on a particular suspect, the suspect has been taken into

police custody, the police carry out a process of interrogations that lends

itself to eliciting incriminating statements. Miranda for its part enumerated

the rights that were available: (1) the person in custody must be informed at

the outset in clear and unequivocal terms that he has a right to remain

silent. (2) After being so informed, he must be told that anything he says

can and will be used against him in court. (3) He must be clearly informed

that he has the right to consult with a lawyer and to have the lawyer with

him during the interrogation. He does not have to ask for a lawyer. The

investigators should tell him that he has the right to counsel at that point.

(4) He should be warned that not only has he the right to consult with a


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lawyer but also that if he is indigent, a lawyer will be appointed to represent

him. (5) Even if the person consents to answer questions without the

assistance of counsel, the moment he asks for a lawyer at any point in the

investigation, the interrogation must cease until an attorney is present. (6)

If the foregoing protections and warnings are not demonstrated during the

trial to have been observed by the prosecution, no evidence obtained as a

result of the interrogation can be used against him . People v. Duero said:

Inasmuch as the prosecution in this case failed to prove that before Duerro

made his alleged oral confession he was informed of his rights to remain

silent and to have counsel and because there is no proof that he knowingly

and intelligently waived those rights, his confession is inadmissible in

evidence.

Meanwhile, however, the process of clarifying the rights that are made

available continue. Discussion of this provision will answer three questions:

(1) When do the rights begin to be available? (2) What rights are made

available? (3) When do the rights cease to be available?

The rights under this section are available to any person under

investigation for the commission of an offense. Investigation in this section

was defined by the 1971 Constitutional Convention as investigation

conducted by the police authorities which will include investigations

conducted by the municipal police, the PC and the NBI and such other police

agencies in our government. This includes conversation with a barangay

captain that is part of an ongoing custodial investigation, Section 12(1)

applies.

Clearly, therefore, the rights enumerated are not available before

government investigators become involved. Thus admissions made in an

administrative investigation conducted by officials of the Philippine Airlines

do not come under Section 12. It does not apply when the confession or


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admission is made to a private individual. Neither does it apply to a person

undergoing audit because an audit examiner is not a law enforcement

officer. Nor does it apply to a verbal admission made to a radio announcer

who was not part of the investigation. Even an admission made to a mayor

who is approached not as a mayor but as confidante is not covered. Similarly

an interview recorded on video and in the presence of newsmen is not

covered. However, because of the inherent danger in the use of television as

a medium for admitting ones guilt, and the recurrence of this phenomenon

in several cases, the Court has warned that it is prudent that trial courts are

reminded that extreme caution must be taken in further admitting similar

confessions. The Court recognized the possibility of connivance with the

police.

Not for that matter does Section 12(1) apply to a situation where a

person presents himself to the police and in the process makes his

admissions. As the court said in People v. Taylaran:

The applicability of the foregoing provision does not seem to

contemplate cases like the present where no written confession is sought to

be presented in evidence as a result of the formal custodial investigation.

What was testified to was only what appellant told the police why he is (sic)

surrendering to them. It is but natural for one who surrenders to the police

to give reason or explanation for his act of surrendering. It can hardly be

said that under such circumstance, the surrenderee is already under

investigation, within the meaning of the constitutional provision. As the

Solicitor General correctly observes on the circumstances of this case: If

however, he voluntarily admits the killing and it was precisely because he

surrendered to admit the killing (sic), the constitutional safeguards (sic) to

be informed of the rights to silence and to counsel may not be invoked.


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It is now established that constitutional procedures on custodial

investigation do not apply to a spontaneous statement, not elicited through

questioning by the authorities, but given in an ordinary manner whereby the

accused orally admits having committed the crime.

The accepted constitutional rule, moreover, following Escobedo and

Miranda, is that the rule covers only situations when the person is already in

custody, for which reason Escobedo ad referred to them as rights under

custodial investigation. Significantly, however, the Court, in Galman v.

Pamaran, departed from this rule. The Court sustained the contention of

General Ver that the provision covered even persons not yet in custody but

already under investigation. The Court said:

The fact that the framers of our (1973) Constitution did not choose to

use the term custodial by having it inserted between the words under

and investigation, as in fact the sentence opens with the phrase any

person goes to prove that they did not adopt in toto the entire fabric of the

Miranda doctrine.

The Text of the 1987 Constitution has preserved the phrase person

under investigation without the word custodial. Moreover, the discussions

on the floor of the 1986 Constitutional Commission manifest an intent, in the

light of experiences during martial law, to expand he coverage of the right to

situations when a person under investigation is not yet in custody. The

discussion was triggered by the question of Commissioner Aquino whether

the guarantee covered both custodial investigation and tactical

investigation. Responding to the question of Commissioner Aquino,

Commissioner Colayco explained that, indeed, the intention was to extend

the guarantee beyond mere strict custodial investigation of the Escobedo

variety to the time immediately after the commission of any offense,

whether the policeman or the person making the investigation had any


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suspect under custody. Or, as Commissioner Aquino summed it up, the

right should extend to the period of custodial interrogation, temporary

detention and preliminary technical custody. Thus, if one puts the Galman

case together with the 1986 deliberations, the conclusion that comes out is

that the rights are available if a person is already in custody as a suspect, or

if the person is the suspect, even if he is not yet deprived in any significant

way of his liberty.

Jurisprudence under the 1987 Constitution, however, has consistently

held, following Escobedo, the stricter view, that the rights begin to be

available only when the person is already in custody. As Justice Regalado

emphasized in People v. Marra:

Custodial investigation involves any questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way. It is only after the

investigation ceases to be a general inquiry into an unsolved crime and

begins to focus on a particular suspect, the suspect is taken into custody,

and the police carries out a process of interrogations that lends itself to

eliciting incriminating statements that the rule begins to operate.

In an obiter dictum and writing for a division in People v. Maqueda,

Justice Davide, who, like Justice Regalado, was a member of the 1986

Constitutional Commission adverted to the view in the Constitutional

Commission that the rights are available even to one who is not yet in

custody.

There are, moreover, other investigatory situations where Section

12(1) does not apply. Subjection to paraffin test is one because it is not

communicative action or testimonial compulsion. Similarly, one placed in a

police line-up does not enjoy Section 12(1) rights, unless there is a move on

the part of the investigators to elicit admissions or confessions. But a person


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already under custodial investigation who is placed in a police line-up is

entitled to Section 12 rights.

Finally, however, it is important for the defense to remember that

rights under Section 12 can be lost by neglect. Where the defense fails to

raise objections to the admissibility of evidence immediately, as required by

Rule 132, Section 36, the accused is deemed to have waived his right to

object to admissibility. This is an indication that the fate of a person

sometimes depends on the quality of counsel he or she can afford.

Right of a person under investigation.

Three rights are made available by Section 12(1): (1) the right to

remain silent; (2) the right to counsel; (3) the right to be informed of such

rights.

Under the right against self-incrimination in Section 17, only an

accused has the absolute right to remain silent. A person who is not an

accused may assume the stance of silence only when asked an incrimination

question. Under Section 12, however, a person under investigation has the

right to refuse to answer any question. His silence, moreover, may not be

used against him.

The 1987 Constitution now specifies that the counsel made available to

the person under investigation must be competent and independent and

preferably of the accuseds own choice. Under the present provision, where

a former judge showed up and said to the detainee: I am here because I

have been summoned to assist you and I am going to assist you, the offer

of assistance was found inadequate to meet the constitutional requirement.

But if the accused never raises an objection to counsel given to him, he is

deemed to have been properly counseled.


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Moreover, the Court has eloquently said that even in times of

emergency, and especially in times of emergency, the right to counsel must

be respected. This was in the case of Diokno v. Enrile where, after

repeatedly being refused permission to see Diokno, counsel filed a

mandamus petition. Diokno was released on September, 1974, but the

Supreme Court decision affirming his right to counsel was made only on

December 19, 1981.

The right to be informed of his rights which are guaranteed here is

more than what is shown in television shows where the police routinely

reads out the rights from a note card. As People v. Rojas put it:

When the Constitution requires a person under investigation to be

informed of his right to remain silent and to counsel, it must be presumed

to contemplate the transmission of a meaningful information rather than just

the ceremonial and perfunctory recitation of an abstract constitutional

principle. As a rule, therefore, it would not be sufficient for a police officer

just to repeat the person under investigation the provisions of the

Constitution. He is not only duty-bound to tell the person the rights to which

the latter is entitled; he must also explain their effects in practical terms.

In other words, the right of a person under investigation to be

informed implies a correlative obligation on the part of the police

investigator to explain, and contemplates an effective communication that

results in understanding what is conveyed. Short of this, there is a denial of

the right, as it cannot then truly be said that the person has been informed

of his rights.

The criminal process includes the investigation prior to the filing of

charges, the preliminary examination and investigation after charges are

filed, and the period of trial. The Miranda rights or the Section 12(1) rights

were conceived for the first of these three phases, that is, when the inquiry


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is under the control of police officers. It is in this situation that the

psychological if not physical atmosphere of custodial investigations, in the

absence of proper safeguards, is inherently coercive. Outside of this

situation, Section 12(1) no longer applies. But Sections 14 and 17 come into

play instead.

This was already adverted to during the deliberations of the 1971

Constitutional Convention when, upon inquiry by Delegate Sambolawan,

Delegate R. Ortiz, who was sponsoring the provision, said that

investigation here did not include judicial and quasi-judicial investigation

such as those conducted by the fiscal of by the judge. Justice Narvasa was

referring to the same matter when he said that Section 12(1) does not apply

to persons under preliminary investigation or already charged in court for a

crime and therefore already under the protection of the court:

It seems quite evident that a defendant on trial or under preliminary

investigation is not under custodial interrogation. His interrogation by the

police, if any there had been would already have been ended at the time for

the filing of the criminal case in court (or in the public prosecutors office).

Hence, with respect to the defendant in a criminal case already pending in

court (or the prosecutor office) there is no occasion to speak of his right

while under custodial interrogation laid down by the second and

subsequent sentences of Section 20, Article IV of the 1973 Constitution [now

Section 12(1)], for the obvious reason that he is no longer under custodial

interrogation.

But unquestionably, the accused in court (or undergoing preliminary

investigation before the public prosecutor), in common with all persons,

possesses the right against self-incrimination set out in the first sentence of

Section 20, Article IV of he 1973 Constitution [now Section 17, Article III],


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i.e., the right to refuse to answer a specific incriminatory question at the

time it is put to him.

Conceivably, however, even after the charges are filed, the police

might still attempt to extract confessions or admissions from the accused

outside of judicial supervision. In such situation, Section 12(1) would still

apply. But outside of such situation, the applicable provisions are Section 14

and Section 17. It is for this reason that an extrajudicial confessions sworn

to before a judge enjoys the mark of voluntariness.

The 1987 Constitution now says: These rights cannot be waived

except in writing and in the presence of counsel. The implication of this rule

is that, in localities where there are no lawyers, the state must bring the

individual to a place where there is one or bring counsel to the place where

the person is held. And needless to say, the waiver must be in language

which clearly manifests the desire to wave the right.

The constitutional privilege against self-incrimination, also treated

separately as Section 17, has developed and has been interpreted so as to

cover a wide range of forms of self-accusation. To prohibit coerced

confessions, the 1987 Constitution added: secret detention places, solitary,

incommunicado, or other similar forms of detention are prohibited. Secret

detention places has special reference to safe-houses and, like solitary

and incommunicado detention, were phenomena during the authoritarian

regime of Mr. Marcos.

Under the 1987 Bill of Rights, where self-incrimination is treated in

Section 17 and custodial investigation and forced confessions in Section 12,

the rule is reiterated in Section 12(3) thus: Any confession or admission

obtained in violation of this or Section 17 hereof shall be inadmissible in

evidence against him.


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It covers every form of evidence obtained in violation of Section 12

and Section 17, every form of confession tainted with involuntariness. It is a

manifestation of the care with which the law wishes to insure the

voluntariness of confessions. This care was already evident even under the

1935 Constitution. This care also appears in a number of recent cases where

the Supreme Court has insisted that a plea of guilty should be accepted only

after the trial court has taken pains to assure itself that the accused was well

aware of the consequences and full import of his plea. Or, as one decision

eloquently put it, Even if the confession of an accused is gospel truth, if it

was made without the assistance of counsel, it is inadmissible in evidence

regardless of the absence of coercion or even if it had been voluntarily

given. The same would apply to a waiver of the rights to counsel not made

in the presence of counsel.

Moreover, although the word confession was used in the last

sentence of Section 20 of the 1973 Bill of Rights, the protection covered not

only confessions but also admissions. This is now explicit in the 1987

text. The difference between confession and admission is found in Rule 130

of the Rules of Court. Admission is the act, declaration or omission of party

as to a relevant fact (Rule 130, Section 26) whereas confession is the

declaration of an accused acknowledging his guilt of the offense charged, or

of any offense necessarily included therein, (Rule 130, Section 33).

Where the signature of an accused on a receipt for seized property or

marijuana cigarettes where the accused wrote his name is not admissible.

It should also be noted that the exclusionary rule found in Section 12

is not couched in the same language as the exclusionary rule in Section 3.

Section 3 makes evidence illegally obtained inadmissible ofr any purpose in

any proceeding. Section 12 says that confessions made in violation of the

section and Section 17 shall be inadmissible in evidence against him. It


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might be asked whether the text of Section 12 could be open to the

narrowing process which the Miranda rule seems to have undergone in

American jurisprudence. The text of Section 12 is general enough to allow a

strict construction against government. Moreover, considering that

involuntary testimonial evidence is a more serious affront to human dignity

than illegally obtained real evidence, the absolute inadmissibility provided for

in Section 3 should also be read into Section 12, and with greater reason,

since involuntary confessions also affront the right of privacy protected by

Section 2.

The question of retroactivity of the application of this protection

granted by the Constitution was settled in the first important Supreme Court

decision on the new 1973 provision on custodial investigation, Magtoto v.

Manguera. It established the rule that the new provision should only operate

prospectively from the date of effectivity of the new Constitution January 17,

1973. The dissents of Justices Castro, Teehankee, and Fernando arguing for

retroactivity of the rule are persuasive; but the issue is now regarded as

closed and the Court now applies Magtoto where necessary as a matter of

course.

Section 12(4) says: 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. Civil sanction in

the form of damages is, strictly speaking, already covered by the Civil Code

provision on actionable violations of constitutional rights. Penal sanctions are

meant to be a deterrent against violations. And the compensation and

rehabilitation provided for are social welfare measures. The way the

provision is worded, however, it will need implementing legislation. And

against the argument that the provision has no place in a Constitution, it

was pointed out that these matters are intimately connected with the rights


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guaranteed by the Constitution and should see articulation in the Bill of

Rights itself which guarantees the inviolability of the rights.

Article III, Section 13. All persons, except those charged with

offenses punishable by reclusion perpetua when evidence of guilt is

strong, shall, before conviction, be bailable by sufficient sureties, or

be released on recognizance as may be provided by law. The right to

bail shall not be impaired even when the privilege of the writ of

habeas corpus is suspended. Excessive bail shall not be required.

Right to bail

The right to bail, which is a corollary to the right to be presumed

innocent is, like the privilege of the writ of habeas corpus, another means of

immediately obtaining liberty. It also enables the accused to prepare his

defense. Bail is a mode short of confinement which would, with reasonable

certainty, insure the attendance of the accused. If capital offenses or

offenses punishable by reclusion perpetua are not made bailable, it is

because frequently nothing short of confinement can insure the attendance

of one who expects to receive such sentence. Where, however, the right to

bail exists, it should not be rendered nugatory by requiring a sum that is

excessive. So the Constitution commands.

Because of the importance of the right to bail both for the accused and

for the prosecution, certain duties are imposed upon the judge. Basco v.

Rapatalo reiterates them thus:

(1) Notify the prosecutor of the hearing of the application for bail or

require him to submit his recommendation (Section 18, Rule 114

of the Rules of Court as amended);

(2) Conduct a hearing of the application for bail regardless of

whether or not the prosecution refuses to present evidence to


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show that the guilt of the accused is strong for the purpose of

enabling the court to exercise its sound discretion (sections 7

and 8, supra);

(3) Decide whether the evidence of guilt of the accused is strong

based on the summary evidence of the prosecution;

(4) If the guilt of the accused is not strong, discharge the accused

upon the approval of the bailbond. (Section 19, supra).

Otherwise, petition should be denied.

Particularly in cases where the accused is charged with a capital

offense, a hearing, mandatory in nature and which should be summary

or otherwise in the discretion of the court, is required with the

participation of both the defense and a duly notified representative of

the prosecution for the purpose of ascertaining whether or not the

evidence of guilt is strong. The burden of proof is on the prosecution to

show that the evidence meets the required quantum. The prosecution

must be given an opportunity to present, within a reasonable time, all

the evidence that it want to introduce before the court. Likewise, the

petitioner has the right to cross-examine the witnesses and present his

own evidence in rebuttal. When, eventually, the court issues an order

either granting or refusing bail, the same should contain a summary of

the evidence for the prosecution, followed by its conclusion as to

whether or not the evidence of guilt is strong.

The quantum of evidence needed in order to deny an accused

the right to bail is described by the text simply as strong evidence.

This has been construed to mean proof evident or presumption

great. Proof evident or evident proof in this connection means

clear, strong evidence which leads a well-guarded dispassionate

judgment to the conclusion that the offense has been committed as


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charged, that accused is the guilty agent, and that he will probably be

punished capitally if the law is administered. Presumption great

exists when the circumstances testified to are such that the

interference of guilt naturally to be drawn therefrom is strong, clear,

and convincing to an unbiased judgment and excludes all reasonable

doubt as to the guilt of accused, if on an examination of the entire

record the presumption is great that accused is guilty of a capital

offense, bail should be refused. If the prosecution does not present

evidence, the court may ask the prosecution such questions as would

ascertain the strength of the states evidence or judge the adequacy of

the amount of bail.

The factors which must be considered in determining bail are:

ability to post bail, the nature of the offense, penalty imposed by law,

character and reputation of the accused, health of the accused,

strength of the evidence, probability of appearing for trial, prior

forfeiture of bonds, whether the accused was a fugitive from justice

when arrested, authority to change the characterization of the offense

but there is no power to reduce or change the crime charged in order

to justify the grant of bail to the accused.

It has been held that a court cannot require a strictly cash bond.

It was established that since bail is constitutionally available to all

persons, it must be available to one who is detained even before

formal charges are filed. But of course, the person claiming the right

must be under actual detention or custody of the law. One is under the

custody of the law either when he has been arrested or has

surrendered himself to the jurisdiction of the court. If granted bail, the

accused does not necessarily have the right to leave the country. As a

necessary consequence of the bail bond, which is intended to make a


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person available any time he is needed by the court, a court may

prevent a person admitted to bail from leaving the country.

It has also been held that the right to bail may be waived even

implicitly in an irrecoverable manner. Thus, it was held by the court

that an accused waived his right when he agreed to remain in legal

custody during the pendency of the trial of his criminal case. After

conviction by the trial court, when presumption of innocence

terminates, the constitutional right to bail should also terminate.

Article III, 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 accusations 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.

Due process in criminal cases

The criminal due process clause of the Bill of Rights presupposes that

the penal law being applied satisfies the substantive requirements of due

process. As to procedural due process, it may be noted that, while the right

to appeal is statutory, once it is granted by law, its suppression is a violation

of due process.

Public trial


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The Court said, To warrant a finding of prejudicial publicity there must

be allegation and proof that the judges have been unduly influenced, not

simply that they might be, by the barrage of publicity. Petitioners cannot

just rely on the subliminal effects of publicity.

The Court added:

Be that as it may, we recognize that pervasive and prejudicial publicity

under certain circumstances can deprive an accused of his due process right

to fair trial.

Moreover, the effect of publicity on judges cannot be presumed especially

since, unlike jurors, judges are trained professionals.

Another aspect of due process, so frequently emphasized, is the right

to be tried by an impartial judge. All suitors, we must say, are entitled to

nothing short of the cold neutrality of an independent, wholly-free,

disinterested and impartial tribunal. The principle is applicable to all types

of cases.

The rights under Section 14(2) guaranteed by the constitution are

rights in all criminal prosecutions and prosecution starts only upon

arraignment. The implication, therefore, is that the rights enumerated in

Section 14(2), including the right to impartiality, are protected only during

the trial.

Finally, it may be asked whether a judge who inherits a case from

another judge may decide a case fairly since he did not hear all the

witnesses presented. The practical answer to the question must be in the

affirmative. As the Court has said: The rule is rooted in practical

considerations. Sometimes it is an impossibility for the judge who tried the

case to be the same judicial officer to decide it. The judge who tired the case

may die, resign or retire from the bench, before he could render judgment


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thereon. We find no legal impediment to his successors continuing with the

trial or rendering judgment on the basis of the evidence submitted if the trial

has been terminated. It is sufficient that in such circumstances the judge, in

deciding the case, must base it completely on the cold record before him, in

the same manner as appellate courts when they review the evidence of the

case raised to them on appeal.

Presumption of innocence

This principle has always been a part of criminal procedural law as

guaranteed first by statutory law (General Orders No. 58) and now by the

Constitution.

Right to be heard

The concept of the right to be heard, applied to criminal procedure,

embodies in shorthand form a very fundamental and multifaceted right of

the accused. In a very broad sense, it can be understood to mean the

totality of the rights embodied in an adequate criminal procedural system.

More precisely, however, it can be viewed as expressing both the qualities of

the hearer and the manner of the hearing.

The qualities demanded of the hearer are fairness and impartiality.

Thhus, it is demanded that the judge may not play the ouble role of

prosecutor and judge in one and the same case. He must maintain an

attitude of neutrality in regard to the prosecution and the accused. Influence

on the judge, even if unconscious, which prevents a calm and careful review

of the evidence can nullify his decision.

The more active role of the accused in expressing the right to be herd

includes three specific rights: (1) the right to present evidence and to be

present at the trial, (2) the right to be assisted by counsel, and (3) the right

to compulsory process to compel the attendance of witnesses in his behalf.


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The right to present evidence includes the right to testify in ones favor

and the right to be given time to call witnesses. If accused of two offenses,

he is entitled to a trial of each case, and it is error for the court to consider

in one case the evidence adduced against him in another. It also includes

the right to present evidence even after a motion to dismiss, made before

presentation of evidence for the defense, has been denied. The substantial

rights of the accused should not be impaired because of his counsels

anxiousness to have him promptly acquitted.

Right to counsel

The right to be heard can be a meaningless farce if it does not include

the right to counsel. Justice Sutherlands well-known observations in Powell

v. Alabama deserve to be quoted:

Even the intelligent and educated layman has small and sometimes

no skill in the science of law. If charged with crime, he is incapable,

generally, of determining for himself whether the indictment is good or bad.

He is unfamiliar with the rules of evidence. Left without the aid of counsel he

may be put on trial without a proper charge, and convicted upon

incompetent evidence, or evidence irrelevant to the issue or otherwise

inadmissible. He lacks both the skill and knowledge adequately to prepare

his defense, even though he has a perfect one. He requires the guiding hand

of counsel at every step in the proceedings against him. Without it, though

he be not guilty, he faces the danger of conviction because he does not

know how to establish his innocence.

Thus, the familiarity of the ordinary layman with court procedures was

compounded by the fact that he was made to face a government official

whose specific function was to prosecute, and who was incomparably more

familiar than the accused with the problems of procedure, the idiosyncrasies

of juries, and last but not least, the personnel of the Court,: The guarantee


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of the right to counsel serves to minimize that imbalance in the adversary

system. In the words of Justice Black:

It embodies a realistic recognition of the obvious truth that the

average defendant does not have the professional skill to protect himself

when brought before a tribunal with power to take his life, or liberty,

wherein the prosecution is presented by an experienced and learned

counsel.

In sum, the basic elements of the right to counsel as it is enforced now

are the following: (1) The court is duty bound to inform the defendant that

he has a right to an attorney before he is arraigned; (2) The court must ask

him if he desires the service of counsel; (3) If he does, and is unable to get

one, the court must assign counsel de oficio; (4) Or, if the accused wishes to

procure private counsel, the court must give him time to obtain one. Where

the appointed counsel could have acted in a double capacity, that is, if his

actual interests were divided between the prosecution and the defense, his

appointment constitutes reversible error; (5) Where duly authorized

members of the bar are not available, the court may appoint resident of the

province and of good repute for probity and ability. As Section 6 of Rule 116

of the Rules of Court puts it, the judge has four pre-arraignment duties: (1)

to inform the accused that he has the right to have his own counsel before

being arraigned; (2) after giving such information, to ask accused whether

he desires the aid of counsel; (3) if he so desires to procure the services of

counsel, the court must grant him reasonable time to do so; and (4) if he so

desires to have counsel but is unable to employ one, the court must assign

counsel de oficio to defend him.

It should be noted that under present jurisprudence the counsel de

oficio must be a qualified lawyer. However, there are limits to the courts

duty to furnish counsel de oficio. The duty of the court to appoint a counsel


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de oficio when the accused has no counsel of choice and desires to employ

the services of one is mandatory only at the time of arraignment (Rule 116,

Section 6, Revised Rules of Court). This is no longer so where the accused

has proceeded with the arraignment and the trial with a counsel of his choice

but when the time for the presentation of evidence for the defense has

arrived, he appears by himself alone and the absence of his counsel was

inexcusable.

Moreover, unlike the right to counsel under Section 12(1), counsel

need not be one who is the choice of the accused An examination of related

provisions in the Constitution concerning the right to counsel, will show that

the preference in the choice of counsel pertains more aptly and specifically

to a person under investigation [Art. III, Section 14(2)], But, an accused

who wishes to withdraw his appeal to the Supreme Court on the ground that

he could not afford counsel should be given counsel de oficio instead.

Like other personal rights, the right to counsel may be waived. In one

case, where defendant, on being asked whether he could afford to employ a

lawyer, replied in the affirmative but said that he had been unable to come

to an agreement with any one as to the amount he should pay for the

services and thereupon entered into trial conducting his own defense, he

was deemed to have waived his right. This waiver of right is exemplified in

People v. Sim Ben. The accused in this case was informed by the judge of

his right to counsel and he was asked if he desired one. He answered that he

did not. He was then asked if he agreed to have the information read to him

even without counsel. He agreed. Thereupon, the information was read and

translated for him. He pleaded guilty. He was then asked whether he

realized that because of his plea of guilt the punishment provided by law

would be imposed on him. He answered that he did. He was deemed to have

validly waived his right.


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However, in another case, People v. Holgado, The following

interchange transpired in court: Court: Do you have an attorney or are you

going to plead guilty? Accused: I have no lawyer and I will plead guilty.

Whereupon he was arraigned. The Supreme Court ruled that the accused

was denied the right to counsel. Waiver was not effective. As the Court said

in another case, Whenever a protection given by the Constitution is waived

by the person entitled to that protection, the presumption is always against

the waiver. Consequently, the prosecution must prove with strongly

convincing evidence to the satisfaction of this Court that indeed the accused

willingly and voluntarily submitted his confession and knowingly and

deliberately manifested that he was not interested in having a lawyer assist

him during the taking of that confession.

Finally, the rights enumerated in Section 14(2) are rights in all

criminal prosecutions and criminal prosecutions according to the 1971

case ofPeople v. Jose covers the period from arraignment to rendition of

judgment. Hence, according to the same case, the right to counsel exists

only during that period. It has been shown, however, that under the

circumstances of Section 12(1) a right to counsel also exists before

arraignment.

Right to be informed

The heart of the constitutional guarantee its purpose and its

requirements was explained in U.S. v. Karelsen:

The object of this written accusations 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 prosecution 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


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had. 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

circumstance necessary to constitute the crime charged.

Thus, the cardinal requisite is that the accused be informed of facts

that are imputed to him. To satisfy this requisite, the information must

describe the act with sufficient particularity. If personal property is the

subject of the offense, the descriptive terms used must be sufficient in their

common and ordinary acceptation to show with certainty to the common

understanding of intelligent men what the property was and to fully identify

it. If the value of the property is material, it must be stated. If an offense

has a qualifying circumstance, such as relationship in statutory rape, the

relationship must be alleged. The right to assail the sufficiency of the

information or the admission of evidence may be waived by the accused if

he fails to object to its sufficiency during the trial and the deficiency is cured

by competent evidence presented therein.

What is essential therefore is that the accused be informed of the facts

alleged against him; he need not be informed of the characterization of the

crime, which is a conclusion of law. Hence, provided the facts are found in

the body of the information, an incorrect caption is not a fatal defect.

However, of the accused is charged with two informations containing two

sets of facts, while the trial of the two cases may be joint, there should be

two separate verdicts for the two informations. The facts in the two

informations cannot be combined to allow a conviction for a complex crime

consisting of the allegations in the two informations. To do so would violate

his right to be informed of the accusation against him.


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Speedy, impartial, and public trial

As already seen, the right to impartial treatment is already an aspect

of the guarantee of due process. It should be noted, however, that the right

to an impartial trial is not a bar to a judges intervention in cross-

examination. As the Court said: We have had occasion to hold that it is not

only the right but oft-times the duty of a trial judge to examine witnesses

when it appears necessary for the elucidation of the record. Under the

system of legal procedure in vogue in this jurisdiction, where the trial court

is judge of both the law and the facts, it is oft-times expedient or necessary

in the due and faithful administration of justice for the presiding judge . . .

to re-examine a witness in order that his judgment when rendered may rest

upon a full and clear understanding of the facts.

Speedy trial, for its part, is a two-edged sword. It can work against or

to the advantage of the accused. Since the prosecution has the burden of

proof, delay in the trial occasioning disappearance of witnesses and the

dimming of memories can actually lessen the chances of conviction.

Similarly, the accuseds own witnesses can disappear or suffer a similar

dimming of memory.

Speedy trial, as already stated, like fair trial, is necessarily relative. It

is consistent with delays and depends upon circumstances. It secures rights

to the defendant. It does not preclude the rights of public justice. What the

Constitution prohibits are unreasonable delays.

While it is the duty of the prosecution to see to it that criminal cases

are tried without unfounded delays, the accused himself cannot sleep on

said right but must see to it that his case be tried at any early date . . . He

cannot agree to the repeated postponement of the trial of his case and then,

when he finds the government absent or unable to go to trial on any of the

dates of hearing, take advantage of said absence and ask for the dismissal


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of his case. Much less may he be allowed to connive in the hiding of

witnesses in order to delay trial. The constitutional privilege was never

intended as furnishing a technical means for escaping trial.

The right, moreover, may be waived. But waiver is not to be inferred

from mere failure of the accused to urge the trial of the case. Such waiver or

abandonment may be presumed only when the postponement of the trial

has been sought and obtained by the accused himself or by his attorney. The

presumption, in fact, is always against the waiver of constitutionally

protected rights.

In People v. Oplado, it was said that where one of two co-accused can

be tried separately, the absence of the other does not justify delay of the

trial of the accused who is present.

The remedy an accused has for violation of his right to speedy trial is

dismissal of the case and, if he is under detention, release by habeas corpus.

Moreover, dismissal for violation of the right to speedy trial is equivalent to

acquittal and is therefore a bar to subsequent prosecution for the same

offense.

Right of confrontation

Closely connected with and equally essential as the right to be heard is

the right to meet the witnesses face to face, or, as Rule 115, Section 1(f)

of the (New) Rules of Court expresses it, to confront and cross-examine the

witness against him at the trial. The right has a two-fold purpose: (1)

primarily, to afford the accused an opportunity to test the testimony of the

witness by cross-examination, and (2) secondarily, to allow the judge to

observe the deportment of the witness.

Agreements between prosecution and the defense to the effect that

certain witnesses, if presented, would testify to certain facts can deprive the


36/48

defendant of the right to confrontation (besides preventing review of the

evidence by the appellate court). The practice, however, of admitting such

agreements has not been completely disallowed.

A corollary of the right of confrontation is that testimony not subjected

to cross-examination must be excluded from consideration. However, if

cross-examination actually commenced, but, for lack of material time, was

not completed, and the witness in the meantime died before cross-

examination could be resumed, so much of the testimony as had already

been covered by cross-examination is admissible.

The Court said in Marinas v. Siochi:

From Section 5 of Rule 112 it is clear that, unlike in the preliminary

investigation proper, an accused is not entitled as a matter of right to be

present during the preliminary examination nor to cross-examine the

witnesses presented against him before his arrest, the purpose of said

examination being merely to determine whether or not there is sufficient

reason to issue a warrant of arrest. The provision commanding the

determination of probable cause prior to the issuance of a warrant of arrest,

requires no notice to an accused. A preliminary examination is generally a

proceeding ex parte in which the person charged has no right to participate

or be present.

Compulsory process

Equally important as the right to counsel is the right to compulsory

process for the attendance of witnesses. The accused, however, may not

invoke this right on appeal if he made no effort during the trial to avail

himself of it. Moreover, to establish the right to continuance by reason of the

absence of witnesses the accused must show: (a) that the witnesses is really

material; (b) that he is guilty of no neglect in previously obtaining


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attendance of said witness; (c) that the witness will be available at the time

desired; (d) that no similar evidence could be obtained.

Trial in absentia

The 1987 Constitution, as also the 1973 Constitution, now provides for

allowable trial in absentia. Article III, Section 14(2), has this added

sentence: However, after arraignment, trial may proceed notwithstanding

the absence of he accused provided that he has been duly notified and his

failure to appear is unjustifiable. The evident purpose of this change is to

prevent unnecessary delays of the trial. The rights of the accused are amply

protected because trial in absentia can be had only if three conditions

concur: (1) accused has been arraigned; (2) notice of the trial was duly

served to him and properly returned; (3) his failure to appear is unjustified.

The Court has ruled that the presence of the accused at arraignment is an

absolute requisite for any trial to proceed, the reason being that it is at

arraignment that the accused is informed of the nature and cause of the

accusation against him and it is then that the trial court acquires jurisdiction

over the person. It has also been ruled that the new provision allowing trial

in absentia does not lend itself to a latitudinarian construction that would

preclude forfeiture of bail for one who jumps bail. Moreover, there is a

statutory rule which requires the presence of the accused at promulgation of

judgment.

Trial in absentia can also take place when the accused voluntarily

waives his right to be present. There are, however, restrictive conditions for

allowing waiver. The right may be waived provided that after arraignment

he may be compelled to appear for the purpose of identification by the

witnesses of the prosecution, or provided he unqualifiedly admits in open

court after his arraignment that he is the person named as the defendant in


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the case on trial. Reason for requiring the presence of the accused despite

his waiver, is, if allowed to be absent in all the stages of the proceeding

without giving the Peoples witnesses the opportunity to identify him in

court, he may in his defense and, therefore, is entitled to acquittal. Thus,

for an accused to be excused from attending trial, it is not enough that he

vaguely agrees to be excused from attending trial, it is not enough that he

vaguely agrees to be identified by witnesses in his absence. He must

unqualifiedly admit that every time a witness mentions a name by which he

is known, the witness is to be understood as referring to him.

Article III, Section 16. All persons shall have the right to a speedy

disposition of their cases before all judicial, quasi-judicial, or

administrative bodies.

Speedy disposition of cases

It is a truism that justice delayed can mean justice denied. It should

be noted that the provision guaranties the right generally to a speedy

disposition of their cases. It covers therefore the periods before, during,

and after trial. In this respect it gives broader protection than Section 14(2)

which guarantees merely the right to a speedy trial. It is also broader than

the protection given by Article VIII, Section 15, which covers merely the

period after the submission of a case. Moreover, the present provision

applies to civil, criminal, and administrative cases. As the Court has put it,

the constitutional right to a speedy disposition of cases is not limited to the

accused in criminal proceedings but extends to all parties in all cases,

including civil and administrative cases, and in all proceedings, including

judicial and quasi-judicial hearings.

The concept of speedy disposition of cases, like speedy trial, is a

relative term and must necessarily be a flexible concept. It is consistent with

reasonable delay.


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Lastly, as in the case of violation of the right to a speedy trial, the

remedy for violation of the right to a speedy disposition of a case is dismissal

obtained through mandamus.

Article III, Section 17. No person shall be compelled to be a witness

against himself.

Self-incrimination

The 1987 Constitution separated the provision from the rules on

custodial investigation. But Section 12(3) places violations of the self-

incrimination clause under the exclusionary rule.

The justification for the guarantee was stated by the Court thus: It

was established on the grounds of public policy and humanity: Of policy,

because, if the party were required to testify, it would place the witness

under the strongest temptation to commit perjury; and of humanity,

because it would prevent the extorting of confessions by duress. Another

decision said: The main purpose of the provision . . . is to prohibit

compulsory oral examination of prisoners before the trial, or upon trial, for

the purpose of extorting unwilling confessions or declarations implicating

them in the commission of a crime.

Although the guarantee has proscribed an inquisitorial system of

investigation, it does not prohibit every form of preliminary investigation.

Preliminary investigation is often the only means of discovering the persons

who may be reasonably charged with a crime so as to enable the fiscal his

complaint or information.

To violate the right, it is not necessary that a categorical admission of

a specific offense be sought. Chief Justice Marshall explained that usually a

crime or a criminal act may contain two or more elements and that a

question would have a tendency to incriminate, even if it tends to elicit only


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one of said elements. The right thus includes a right to refuse to testify to

a fact which would be a necessary link in a chain of evidence to prove the

commission of a crime by a witness.

It was held early in Philippine jurisprudence that what is prohibited by

the constitutional guarantee is the use of physical or moral compulsion to

extort communication from the witness, not an inclusion of his body in

evidence, when it may be material. Thus, substance emitting from the body

of the defendant was received as evidence in a prosecution for acts of

lasciviousness. Subjection to ultra-violet examination is allowed. So is

paraffin test. Morphine forced out of the mouth of the accused was received.

An order by the judge for the witness to put on a pair of pants for size was

allowed. The taking of an accused persons picture does not incriminate him.

And since, according to the Court, the kernel of the privilege was the

prohibition of testimonial compulsion. This harsh rule, so contrary to the

humane purpose of the law, was justified by justice Malcolm by the

statement that No rule is intended to be so rigid as to embarrass the

administration of justice in its endeavour to ascertain the truth. The Court

added: Fully conscious that we are resolving a most extreme case . . .

which on first impression is a shock to ones sensibilities, we must

nevertheless enforce the constitutional provision . . . undeterred by merely

sentimental influences. The only proviso imposed was that torture or force

should be avoided.

The rule on the permissibility of requiring a witness to write in order to

furnish a sample of his handwriting was settled in Beltran v. Samson. It was

held that, since witnesses in a preliminary investigation are protected by the

prohibition, they may not be compelled to take a dictation in order to

compare their handwriting with that found in a supposedly falsified

document. In support of this ruling, the Court said:


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. . . writing is something more than moving the body, or the hand, or

the fingers; writing is not a purely mechanical act, because it requires the

application of the intelligence and attention . . .

We say that, for the purpose of the constitutional privilege, there is a

similarity between one who is compelled to produce a document. And one

who is compelled to furnish a specimen of his handwriting, for in both cases,

the witness is require to furnish evidence against himself.

And we say that the present case is more serious . . . because here

the witness is compelled to write and create, by means of the act of writing,

evidence which does not exist.

Beltran, however, was distinguished from Marcelo v. Sandiganbayan

where the accused where asked to affix their signatures on the envelopes of

the letters which constituted the corpus delicti in a mail pilferage case. The

Court said: To be sure, the use of specimen handwriting in Beltran is

different form and the use of petitioners signature in this case. In that case,

the purpose was to show that the specimen handwriting matched the

handwriting in the document alleged to have been falsified and thereby show

that the accused was the author of the crime (falsification) while in this case

the purpose for securing the signature of petitioner on the envelopes was

merely to authenticate the envelops as the one seized from him and his co-

accused.

When a person, however, voluntarily answers an incriminating

question, he is deemed to have waived his right. Moreover, after the

accused pleaded guilty, for the purpose of ascertaining the proper penalty to

be imposed or for any other legal purposes, the court may properly ask such

questions as are necessary to that end. By this plea of guilty, he is deemed

to have waived his right to the extend, at least of not allowing him

subsequently to claim error by reason of such questions or answers thereto.


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Besides, it is the courts which determine whether or not a question is in fact

incriminating. But an invariable answer of I do not remember is equivalent

to refusal to answer and does not constitute waiver.

The privilege against self-incrimination can be rendered meaningless if

the silence of a witness may be used against him. Hence, the rule has been

established that refusal of an accused to be a witness or of a witness to

answer should in no manner be used against them. This rule, however, does

not prohibit an unfavourable interference from failure of one party to

produce evidence that is in his control.

Documents and records

It will be recalled that Philippine jurisprudence prior to Stonehill v.

Diokno had linked the inadmissibility of illegally obtained evidence with the

self-incrimination clause. Jurisprudence on the subject was founded on Boyd

v. United States which had declared that a compulsory production of the

private books and papers of the owner . . . is compelling him to be a witness

against himself, within the meaning of the Fifth Amendment. Both Stonehill

and Article III, Section 3(1), have since divorced the exclusionary rule in the

search and seizure clause from self-incrimination. Nevertheless, the rule

established in Boyd still remains that the self-incrimination clause covers

documentary evidence.

It should also be noted that, unlike the search and seizure clause,

which protects both natural persons and corporations, the privilege against

self-incrimination is a personal one, applying only to natural individuals.

Moreover, a corporate officer may not prevent the production of corporate

papers on the ground that they may incriminate him personally, for in such

situation it would not be a case of the officer incriminating himself but the

corporation incriminating him.


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Article III, Section 19. (1) Excessive fines shall not be imposed, nor

cruel, degrading or inhuman punishment inflicted. Neither shall

death penalty be imposed, unless, for compelling reasons involving

heinous crimes, the Congress hereafter provides for it. Any death

penalty already imposed shall be reduced to reclusion perpetua.

(2) The employment of physical, psychological, or degrading

punishment against any prisoner or detainee, or the use of

substandard or inadequate penal facilities under subhuman

conditions shall be dealt with by law.

Cruel, degrading or inhuman punishment; excessive fines

In Legarda v. Valdez, it was clearly established that the phrase cruel

and unusual embodied an inseparable pair: To be prohibited by this

provision the punishment must not only be unusual but it must also be cruel.

There is no reason why unusual punishments which were not cruel should

have been prohibited. Punishments are cruel when they involve torture or

a lingering death; but the punishment of death is not cruel, within the

meaning of that word as used in the Constitution. It implies there something

inhuman and barbarous, something more than the mere extinguishment of

life.

Thus to be cruel and unusual or excessive within the meaning of

the Constitution, the penalty must be flagrantly disproportionate to the

offense no matter under what circumstances the offense may be committed;

but to be clearly excessive under Article 5 of the Penal Code, it need only

be disproportionate to the circumstances of the offense and of the offender.

In the former, the punishment imposed by the Legislature has exceeded the

limits of its discretionary power, and the Court steps in to apply the

constitutional brake; in the Latter, the Legislature has acted within the limits

of its power, but an unforeseen situation occurs which calls for clemency and


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the court can merely recommend clemency because in the constitutional

scheme it has power only to apply the law.

Abolition of death penalty

It was made clear that there was no intention to pass judgment on

capital punishment as cruel and unusual. The matter should be left to

legislative discretion. Thus, when lethal injection was challenged as a cruel

and unusual punishment disallowed by the Constitution, the Court easily

dismissed the contention appealing to well-settled jurisprudence that the

death penalty per se is not a cruel, degrading or inhuman punishment.

Punishment is so if it involves torture or a lingering death; but the

punishment of death is not cruel, within the meaning of that word as used in

the Constitution. Unconstitutional punishment implies something inhuman

and barbarous, something more than the mere extinguishment of life.

Article III, Section 21. No person shall be twice put in jeopardy of

punishment for the same offense. If an act is punished by a law and

an ordinance, conviction or acquittal under either shall constitute a

bar to another prosecution for the same act.

Double jeopardy

Justice Moran, writing in 1941, could said: Being thus a mere

recognition of the maxim of the common law, and adoptment from the

Constitution of the United States, the principle of double jeopardy followed in

this jurisdiction the same no narrower or wider line of development as in

Anglo-Saxon jurisprudence.

It will also be seen that the role which the Rules of Court has played in

the development of the doctrine on double jeopardy has made it very

difficult to determine what aspect of the development belongs to

constitutional double jeopardy and what to statutory double jeopardy.


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When jeopardy attaches

Under present law, to raise the defense of double or second jeopardy

three requisites must be shown: (1) a first jeopardy must have attached

prior to the second; (2) the first jeopardy must have terminated; (3) the

second jeopardy must be for the same offense as that in the first. These

three requisites provide a convenient division for the discussion of the

subject.

The Court enumerated the requisites for the attachment of jeopardy:

(a) upon a good indictment, (b) before a competent court, (c) after

arraignment, and (d) after plea.

Rule 117, Section 7 of the New Rules of Court, says that there must be

a valid complaint or information or other formal charge sufficient in form

and substance to sustain a conviction. Under such rule, it has been

uniformly held that if the charge is fatally defective in form, jeopardy does

not attach. Thus, too, when the substance of the information does not allege

sufficient facts to constitute an offense, jeopardy does not attach. Under

these and similarly defective informations, the accused can never be

convicted and, hence, he cannot be said to have been in jeopardy of

conviction.

When the courtthat takes cognizance of the case without jurisdiction,

either because the crime charged is outside the ambit of the courts powers

or because the crime was committed outside the territorial jurisdiction of t

he court, all proceedings in such court are void and the accused cannot be

convicted. Hence, again, jeopardy does not attach.

Conviction by a court that is without jurisdiction is a nullity and, at

most, has the effect of a preliminary investigation. In a preliminary


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investigation, however, the accused is not placed in jeopardy because it has

no purpose except that of determining whether a crime has been committed

and whether there is probable cause to believe the accused guilty thereof.

However, the Supreme Court ruled that in the case of People v. Balisacan,

where the accused pleaded guilty and was allowed to present evidence in

mitigation, his evidence amounted to a withdrawal of his plea of guilty and,

since no new plea was entered, there was no jeopardy which the acquittal

could terminate.

Termination of jeopardy

Once jeopardy has attached, may double jeopardy be raised as a

defense even before the termination of the first jeopardy? Justice Roberto

Concepcion, in Yap v. Lutero, wrote:

Our bill of Rights deals with two kinds of double jeopardy. The first

sentence of clause 20, Section 1, Article III of the [1935] Constitution

ordains that no person shall be twice put in jeopardy of punishment