Right Against Self-Incrimination

The right against self-incrimination is embedded in Sec. 17 of the Bill of Rights

It prevents the all-powerful State from forcing an accused to testify against himself or to give out testimony that may convict him. It would also be unjust to force people to choose between betraying their inclination to protect themselves (committing perjury by lying) or inviting contempt of court by refusing to say anything:
“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 the crime of perjury, and of humanity, because it would prevent the extorting of confessions by duress.”
–U.S. v. Navarro, 1904

It is very important to note that this right DOES NOT PREVENT THE STATE TO ASK QUESTIONS, it merely allows a person to refuse answering incriminating questions, or if the person is the accused, refuse to take the stand at all:
“True, an accused in a criminal case may not be compelled to testify, or to so much as utter a word, even for his own defense. But while the constitutional guaranty against self-incrimination protects a person in all types of cases, be they criminal, civil, or administrative, said privilege, in proceedings other than a criminal case against him who invokes it, is considered an option of refusal to answer incriminating questions, and not a prohibition of inquiry.”
–Suarez v. Tengco, 1961

Thus, a person (ordinary witness) that is not an accused in a criminal case can never refuse to take the stand. But there is an exception to this. We’ll find out later.

Anyway, we’re getting a little ahead of ourselves, let’s start with scope and coverage.

SCOPE AND COVERAGE

The right does not apply to all types of compulsion, it only applies to testimonial compulsion:
“But the prohibition of compelling a man in a criminal court to be a witness against himself, is a prohibition of the use of physical or moral compulsion, to extort communications from him, not an exclusion of his body as evidence, when it may be material.”
–U.S. v. Tan Teng, 1912, citing Holt v. U.S.,1910

Otherwise, if all types of compulsion were to be prohibited, it would end up in an absurd situation:
“If, in other words, it (the rule) created inviolability not only for his [physical control of his] own vocal utterances, but also for his physical control in whatever form exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles – a clear reductio ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, * * * but testimonial compulsion.”
–U.S. v. Tan Teng, 1912

Thus, the following forms of non-testimonial compulsion are not violative of the right against self-incrimination:
1. substance emitting from the body of the defendant was taken from him and was received as evidence in a prosecution for acts of lasciviousness (The substance was tested and the results showed that the accused had gonorrhea)
2. Morphine forced out of the mouth of the accused
3. An order by the judge for the witness to put on a pair of pants to test for size
4. A woman ordered to undergo a pregnancy test
5. Taking of pictures of the accused, even without the assistance of counsel
6. Urine test (for drugs or other substances)
7. Fingerprints test
–People v. Marcelo (2018)
8. Subjection to ultra-violet examination – People v. Tranca (1994)
9. Paraffin test – People v. Gamboa (1991)
10. Hair samples – People v. Rondero (1999)
11. The accused was forced to point to a place where he hid a wallet which was then used, along with its contents, as evidence against him – People v. Malimit (1996)
12. DNA testing – People v. Yatar (2004)

The reason is that what they were forced to do was a “purely mechanical act” which is not a violation of the right against self-incrimination because the accused does not thereby speak his guilt:
The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand of counsel is not required. The essence of the right against self-incrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act.
–People v. Gallarde, 2000

If ever these come up, just say that “the right against self-incrimination can only be invoked when what is involved is testimonial compulsion. Such right is not an exclusion of the accused’s body as evidence. Here, even if _______(insert non-testimonial compulsion here i.e. the accused was forced to undergo drug testing), such compulsion is not testimonial and what the accused did was a purely mechanical act not covered by the right against self-incrimination. Thus, _______ (depends on the categorical question).”

But take note! In drug testing, compulsion is only allowed if the crime in connection to the accused’s arrested is drug-related. The same goes for other forms of non-testimonial compulsion. In other words, THE PIECES OF EVIDENCE OBTAINED MUST BE MATERIAL TO THE PRINCIPAL CAUSE OF ARREST.

Let’s look at a recent case.

Here, the accused was arrested in relation to the crime of extortion. He was made to undergo a drug test (via urine) despite his numerous objections. Despite being a purely mechanical act, the compulsory drug test was deemed violative of the right against self-incrimination:
[We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained were all material to the principal cause of the arrest.
x x x x
In the instant case, we fail to see how a urine sample could be material to the charge of extortion. The RTC and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purposes of drug testing was “merely a mechanical act, hence, falling outside the concept of a custodial investigation.”
x x x x
In the present case, though, petitioner was arrested for extortion; he resisted having his urine sample taken; and finally, his urine sample was the only available evidence that was used as basis for his conviction for the use of illegal drugs.
x x x x
In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons regardless of the crime or offense for which the arrest is being made.

While we express our commendation of law enforcement agents as they vigorously track down offenders in their laudable effort to curb the pervasive and deleterious effects of dangerous drugs on our society, they must, however, be constantly mindful of the reasonable limits of their authority, because it is not unlikely that in their clear intent to purge society of its lawless elements, they may be knowingly or unknowingly transgressing the protected rights of its citizens including even members of its own police force.]
–Dela Cruz v. People, 2014

Thus, the lesson here is, in order for non-testimonial compulsion to be allowed, THE PIECES OF EVIDENCE OBTAINED MUST BE MATERIAL TO THE PRINCIPAL CAUSE OF ARREST.

SEGUE: Mandatory Drug Test for the accused under R.A. 9165 was held unconstitutional:
“The Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor’s office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are “randomness” and “suspicionless.” In the case of persons charged with a crime before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.”
–SJS v. DDB and PDEA, 2008

Moving on.

Aside from covering purely mechanical non-testimonial acts, the coverage of the right against self-incrimination has evolved to include the compulsion for the production of documents, papers, and chattels that may be used as evidence against the witness. The reasoning is that he would still need to testify as to the identity and authenticity of the document:
“For though the disclosure thus sought be not oral in form, and though the documents or chattels be already in existence and not desired to be first written and created by testimonial act or utterance of the person in response to the process, still no line can be drawn short of any process which treats him as a witness; because in virtue it would be at any time liable to make oath to the identity or authenticity or origin of the articles produced.”
–Beltran v. Samson, 1929, citing Professor Wigmore (a famous legal author)

But of course, this right cannot be invoked in a situation where the State has a right to inspect the documents, such as the books of accounts of corporations, under the police power or even taxing power.
-Justice Isagani Cruz, Constitutional Law, 2013, p. 309

There is no exact case explaining the right against self-incrimination vis-a-vis production of documents, nor its exception under police and taxing power. I guess something close to its application is when the PCGG would allow a group of lawyers to be excluded as defendants in a case ONLY IF they surrender the identity of their client and DOCUMENTS RELATED TO SUSPECTED TRANSACTIONS. This condition was held invalid by the SC for being violative of attorney-client privilege, equal protection, and the right against self-incrimination:
“We find that the condition precedent required by the respondent PCGG of the petitioners for their exclusion as parties-defendants in PCGG Case No. 33 violates the lawyer-client confidentiality privilege. The condition also constitutes a transgression by respondents Sandiganbayan and PCGG of the equal protection clause of the Constitution. It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. Moreover, the PCGG’s demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions, not only in violation of the attorney-client privilege but also of the constitutional right against self-incrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the expense of such rights.”
–Regala v. Sandiganbayan, 1996

As to the exception, the right against self-incrimination was said not to apply when the documents sought to be produced were public records:
“Finally, it is contended that the issuance of the subpoena duces tecum would violate petitioners’ right against self-incrimination. It is enough to state that the documents required to be produced in this case are public records and those to whom the subpoena duces fecum is directed are government officials in whose possession or custody the documents area. Moreover, if, as petitioners claim the disbursement by the EIIB of funds for personal service has already been cleared by the COA, there is no reason why they should object to the examination of the documents by respondent Ombudsman.”
–Almonte v. Vasquez, 1995

And because it is similar to the compulsory production of documents which is covered by the right against self-incrimination, to force the accused (in a falsification of documents case) to furnish a specimen of his handwriting is likewise covered by the right against self-incrimination. The reason is that the witness is required to furnish evidence against himself. Another reason is that it is not a “purely mechanical act” unlike our examples earlier:
“Furthermore, in the case before us, 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 intelligence and attention; and in the case at bar writing means that the petitioner herein is to furnish a means to determine whether or not he is the falsifier, as the petition of the respondent fiscal clearly states. Except that it is more serious, we believe the present case is similar to that of producing documents or chattels in one’s possession.
x x x x
We say that, for the purposes 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 required to furnish evidence against himself.
x x x x
And we say that the present case is more serious than that of compelling the production of documents or chattels, because here the witness is compelled to write and create, by means of the act of writing, evidence which does not exist, and which may identify him as the falsifier.”
–Beltran v. Samson, 1929

The next question that comes to mind is, does this mean that the right is only available in criminal cases?

No. Here are the rules.

APPLICATION

GENERAL RULE:
In criminal proceedings, the right against self-incrimination can be invoked by the accused in a criminal case, and he can refuse to take the stand. But, if the witness is not the accused, he cannot refuse to take the stand, he can only refuse to answer incriminating questions. In other proceedings, whether a party or a non-party, the same rule as an ordinary witness applies, i.e., he also cannot refuse to take the stand, but can only refuse to answer incriminating questions.

Here is an excerpt explaining that, in cases other than criminal cases, no one can refuse to take the stand:
[Except in criminal cases, there is no rule prohibiting a party litigant from utilizing his adversary as a witness. As a matter of fact, section 83 of Rule 123, Rules of Court, expressly authorizes a party to call an adverse party to the witness stand and interrogate him. This rule is, of course, subject to the constitutional injunction not to compel any person to testify against himself. But it is established that the privilege against self-incrimination must be invoked at the proper time, and the proper time to invoke it is when a question calling for a criminating answer is propounded. This has to be so, because before a question is asked there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. As stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify “cannot decline to appear, nor can he decline to be sworn as a witness” and “no claim of privilege can be made until a question calling for a criminating answer is asked; at that time, and, generally speaking, at that time only, the claim of privilege may properly be interposed.”]
Gonzales v. Secretary of Labor, 1954

EXTENDED RULE:
A person that is not an accused may refuse to take the stand in administrative proceedings which possess a criminal or penal aspect, where there is an impending threat of deprivation of his liberty or property. For example, (1) when a doctor is in an administrative proceeding which may result in the revocation of his license, (2) when a person faces a judgment in an administrative proceeding that may result in the forfeiture of his property, (3) in an extradition proceeding where the person may lose his liberty via extradition:
[In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one’s license as a medical practitioner, is an even greater deprivation than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature.

The cases mentioned above refer to an impending threat of deprivation of one’s property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result — the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty.]
–Secretary of Justice v. Lantion, 2000

In other words, the accused’s right against self-incrimination is on a higher tier than an ordinary witness’ right against self-incrimination (General Rule). Here is an excerpt explaining the difference between an accused’s and an ordinary witness’ right:
“Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any all questions.”
–Chavez v. CA, 1968

However, the accused right is extended to respondents in administrative investigations that are criminal or penal in nature as we explained earlier (Extended rule). But to add to that, it has been held that even a person that is not a party to the proceedings may refuse to take the stand IF THERE IS AN IMPENDING THREAT OF PUNISHMENT:
“Concededly, this right of the accused against self-incrimination is extended to respondents in administrative investigations that partake of the nature of or are analogous to criminal proceedings. The privilege has consistently been held to extend to all proceedings sanctioned by law; and to all cases in which punishment is sought to be visited upon a witness, whether a party or not.”
–Standard Chartered Bank v. Senate Committee on Banks, 2007

To be honest, I’m not sure what other case other than administrative proceedings possessing a criminal or penal aspect has an impending threat of punishment. Nevertheless, that is the rule, so let’s stick to it.

Moving on.

So can the right against self-incrimination be waived? Yes, provided that the “waiver must be certain and unequivocal, and intelligently, understandably, and willingly made.” Thus if a witness objected to being put on the stand, and if the judge forced him to do so anyway, even if he did answer the questions, there is still no valid waiver of his right:
[With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions in spite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and there on the first day of the trial.

It matters not that, after all efforts to stave off petitioner’s taking the stand became fruitless, no objections to questions propounded to him were made. Here involved is not a mere question of self-incrimination. It is a defendant’s constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one.

There is therefore no waiver of the privilege. “To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver follows only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence.” The teaching in Johnson vs. Zerbst is this: “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquisnment or abandonment of a known right or privilege.” Renuntiatio non praesumitur.]
–Chavez v. CA, 1968

Thus, the lesson here is that there should be no objection or any resistance on the part of the accused or witness in waiving his right. The key phrase is “the waiver must be certain and unequivocal, and intelligently, understandably, and willingly made.”

But what if the accused pled guilty? Is he still covered by the right against self-incrimination. No, but only in relation to the offense he pled guilty to. Thus, for purposes of determining the necessary penalty, the accused cannot refuse to take the stand and answer questions:
“So long as the plea of guilty and the statement of the accused substantiating such plea were made voluntarily and with full knowledge of his rights, we are of the opinion that, for the purpose of ascertaining the penalty which is to be imposed or for any other legal purpose, the court might properly ask such questions as were necessary to that end and especially those which the accused would voluntarily answer. Having entered a plea of guilty and voluntarily offered himself, in effect, as a witness, he waived the protection thrown about him by that provision of the law which says that an accused person is not required to be a witness against himself—this to the extent, at least, of not allowing him subsequently to claim error by reason of such questions or the answers thereto on the ground that he was prejudiced thereby.”
–U.S. v. Binayoh, 1916

Here is another case showing that this is already a well-settled doctrine:
“Appellant criticizes the lower court in questioning him as to whether or not he had a license to drive a motor vehicle. But the accused having answered the question voluntarily, he cannot now contend that he was compelled to testify against himself. It is well settled that, in cases like the one before Us, the trial judge has discretion to ascertain the true facts before rendering judgment against an accused who has pleaded guilty. (Sec. 5, Rule 140, Rules of Court; U.S. vs. Talbanos, 6 Phil. 541; U.S. vs. Rota, 9 Phil. 426; U.S. vs. Agcaoili, 31 Phil. 91; U.S. vs. Jamad, 37 Phil. 305.)”
–People v. Aquino, 1950

The next question that comes to mind is, so what happens if a person’s right against self-incrimination is violated?

Sec. 12(3) of the Bill of Rights states that any confession or admission obtained in violation of the right against self-incrimination is inadmissible:

In effect, this is an exclusionary rule similar to Sec. 3 which deters the State in violating protected rights and freedoms.

But take note that this only applies to the State (much like all the provisions of the Bill of Rights) and does not apply to investigations by private individuals:
“…the right against self-incrimination under Section 17 of Article III of the Constitution, which is ordinarily available only in criminal prosecutions, extends to all other government proceedings — including civil actions, legislative investigations, and administrative proceedings that possess a criminal or penal aspect — but not to private investigations done by private individuals. Even in such government proceedings, this right may be waived, provided the waiver is certain; unequivocal; and intelligently, understandingly and willingly made.”
–BPI v. CASA, 2004

Okay so it is settled that if a police officer forces an accused to answer an incriminating question, such answer from the accused will not be admissible by virtue of Sec. 12(3). But, what if, like in our case example earlier, the judge is the one that forced the accused to answer incriminating questions by forcing him to take the stand? In a case like this, the result will not simply be that the accused’s testimony becomes inadmissible, what will happen is that the court is ousted of its jurisdiction and the whole proceeding becomes void. Thus, a petition for a writ of habeas corpus may be filed and will be granted in favor of the accused whose constitutional right was violated:

[Therefore, the court may not extract from a defendant’s own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand — with undiluted, unfettered exercise of his own free, genuine will.

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion “tending to force testimony from the unwilling lips of the defendant.”

x x x x

It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused’s constitutional rights are, disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated.
x x x x
Under our own Rules of Court, to grant the remedy (of Habes Corpus) to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, ”to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.”

Just as we are about to write finis to our task, we are prompted to restate that: “A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers.]
–Chavez v. CA, 1968

Alright, all of that seems understandable. Let’s move on to immunity statues.

IMMUNITY STATUTES

There are situations where the criminals are so talented in hiding evidence that the State has no choice but to get the best evidence available: testimony from one of the criminals.

Thus, immunity statutes were created to allow the criminals to offer self-incriminating testimonies (that will also incriminate their peers) in exchange for immunity:
“Immunity statutes seek to provide a balance between the state’s interests and the individual’s right against self-incrimination. To secure his testimony without exposing him to the risk of prosecution, the law recognizes that the witness can be given immunity from prosecution. In such a case, both interests and rights are satisfied.”
–People v. Sandiganbayan, 2013

A longer version of the explanation above:
“Immunity statutes seek a rational accommodation between the imperatives of an individual’s constitutional right against self-incrimination (considered the fount from which all statutes granting immunity emanate) and the legitimate governmental interest in securing testimony. By voluntarily offering to give information on the commission of a crime and to testify against the culprits, a person opens himself to investigation and prosecution if he himself had participated in the criminal act. To secure his testimony without exposing him to the risk of prosecution, the law recognizes that the witness can be given immunity from prosecution. In this manner, the state interest is satisfied while respecting the individual’s constitutional right against self-incrimination.”
–Quarto v. Ombudsman Marcelo, 2011

For us to have an idea of the importance of immunity statutes in the Philippines, here are some examples:
[PD No. 749 (Granting Immunity from Prosecution to Givers of Bribes and Other Gifts and to their Accomplices in Bribery and Other Graft Cases against Public Officers, July 18, 1975);
PD No. 1731 (Providing for Rewards and Incentives to Government Witnesses and Informants and other Purposes, October 8, 1980);
PD No. 1732 (Providing Immunity from Criminal Prosecution to Government Witnesses and for other Purposes, October 8, 1980);
PD No. 1886 (creating the Agrava Fact-Finding Board, October 22, 1983);
1987 Constitution, Article XIII, Section 18(8) (empowering the Commission on Human Rights to grant immunity);
RA No. 6646 (An Act Introducing Additional Reforms in the Electoral System and for other Purposes, January 5, 1988);
Executive Order No. 14, August 18, 1986;
RA No. 6770 (Ombudsman Act of 1989, November 17, 1989);
RA No. 6981 (Witness Protection, Security and Benefit Act, April 24, 1991);
RA No. 7916 (The Special Economic Zone Act of 1995, July 25, 1994);
RA No. 9165 (Comprehensive Dangerous Drugs Act of 2002, June 7, 2002);
RA No. 9416 (An Act Declaring as Unlawful Any Form of Cheating in Civil Service Examinations, etc., March 25, 2007); and
RA No. 9485 (Anti-Red Tape Act of 2007, June 2, 2007)]
–Quarto v. Ombudsman Marcelo, 2011

There are two types of immunity statutes:
1. use immunity (or use-and-derivative-use immunity)
2. transactional immunity:
Immunity statutes may be generally classified into two: one, which grants “use immunity”; and the other, which grants what is known as “transactional immunity”. The distinction between the two is as follows: “Use immunity” prohibits use of witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand, “transactional immunity” grants immunity to the witness from prosecution for an offense to which his compelled testimony relates.
–Galman v. Pamaran, 1985

Thus, we can safely say that the transactional immunity is much broader in scope:
“Transactional immunity is broader in the scope of its protection. By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction to which the testimony relates. In contrast, by the grant of use-and-derivative-use immunity, a witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution.”
–Tanchanco v. Sandiganbayan, 2005

To provide an example, let’s say that Marco and Polo killed Mr. Xi. They were then both arrested and charged with murder. But then, the prosecution found it hard to get evidence that can prove guilt beyond reasonable doubt. Thus, they offered immunity to Marco. Marco testified that he and Polo shot Mr. Xi. He also testified that the guns they used were his and they were unlicensed. If they gave him use immunity, Marco’s testimony that he owns an unlicensed firearm cannot be used against him, but he can still be charged and prosecuted for a case under R.A. 10591. It will be harder for the prosecution to prove because his testimony cannot be used against him, nevertheless, they can still file a case. However, if Marco was given transactional immunity, he can never be charged and prosecuted for violation of R.A. 10591. And if he further testified that they were under the influence of drugs, if he has transactional immunity, he can also never be prosecuted for the use of said drugs.

Now, the decision of who will be given the immunity or what type of immunity he may be given is AN EXECUTIVE FUNCTION and is a matter of strategy:
“The exercise of the power is not shared with any other authority. Nor is its exercise subject to the approval or disapproval of another agency of government. The basic reason for vesting the power exclusively on the PCGG lies in the principle of separation of power. The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to forego prosecution of a person for government to achieve a higher objective. It is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of having committed a crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate power should be exercised, who should be extended the privilege, the timing of its grant, are questions addressed solely to the sound judgment of the prosecution. The power to prosecute includes the right to determine who shall be prosecuted and the corollary right to decide whom not to prosecute. In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the respondent court is limited. For the business of a court of justice is to be an impartial tribunal, and not to get involved with the success or failure of the prosecution to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to rectify, any more than courts should correct the blunders of the defense. For fairness demands that courts keep the scales of justice at equipoise between and among all litigants. Due process demands that courts should strive to maintain the legal playing field perfectly even and perpetually level.”
–Mapa, Jr. v. Sandiganbayan, 1994

Thus, even if the court thinks that immunity should not be given to a particular person, the court has no choice but to accept the decision of the prosecution. However, the court can still review matters of procedures like the requirements before immunity may be given:
“Prescinding from these baseline propositions…x x x…the power of the respondents court can go no further than to pass upon its procedural regularity.”
–Mapa, Jr. v. Sandiganbayan, 1994

Now, these procedural rules are embedded in the statutes themselves and they may differ from each other.

However, if a case is already ongoing and the courts have jurisdiction, the prosecution has the option to provide immunity, but only under the conditions set by Rule 119 Sec. 17:
“Section 17. Discharge of accused to be state witness. — When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that:
(a) There is absolute necessity for the testimony of the accused whose discharge is requested;
(b) The is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence”
–Rule 119, Sec. 17, Rules of Court

Anyway, these rules are better off discussed under remedial law, so no need to memorize.

But then, since the grant of immunity kind of forces two opposing sides to join together, there is a high chance that one may betray another. For example, the prosecution may rescind the immunity after they got what they wanted or if the witness merely bluffed his way into getting immunity.

In any case, if there is doubt whether or not a person’s immunity is valid or not, such doubt must be settled in favor of immunity (construed liberally in favor of the accused and strictly against the State). After all, the person gives up a precious right:
“Quite clearly, these immunity statutes are not a bonanza from government. Those given the privilege of immunity paid a high price for it – the surrender of their precious right to be silent. Our hierarchy of values demands that the right against self-incrimination and the right to be silent should be accorded greater respect and protection. Laws that tend to erode the force of these preeminent rights must necessarily be given a liberal interpretation in favor of the individual. The government has a right to solve crimes but it must do it, rightly.”
–Mapa, Jr. v. Sandiganbayan, 1994

And in a simpler, less poetic explanation:
“Ambiguities in immunity agreements must be construed against the State, and any question of interpretation must be resolved in favor of the defendant, following the underlying fundamental principle that all doubts must be resolved in favor of the accused.”
–Tanchanco v. Sandiganbayan, 2005

Now, one more important point to emphasize is, what happens to the extrajudicial confession of a state witness if it is done without the presence of counsel (which would ordinarily make it inadmissible)?

The answer is that (1) the extrajudicial confession will be admissible against the confessant’s co-accused but not against the confessant because the rights under Sec. 12 are personal in nature:
“Appellants cannot seek solace in the provision they have invoked. What is provided by the modified formulation in the 1987 Constitution is that a confession taken in violation of said Section 12 and Section 17 of the same Article “shall be inadmissible in evidence against him,” meaning the confessant. This objection can be raised only by the confessant whose rights have been violated as such right is personal in nature.”
–People v. Balisteros, 1994

There is an opposing view to this and I think either one is okay. But, we should just pick one if ever the issue arises in the bar. We cannot say “there are two opposing views blah blah..”

I guess that’s it for the right against self-incrimination. Let’s go to the heavier topic of rights of persons under custodial investigation next time.