Last time, we talked about criminal due process and bail. Let’s continue our discussion on the rights of the accused with the presumption of innocence.
PRESUMPTION OF INNOCENCE
This topic seems easy enough to understand, but let’s discuss it anyway.
Like almost all of the rights of the accused, the right to be presumed innocent can be found in Sec. 14, Art. III of the Constitution.
Meaning
To explain the right to be presumed innocent, let’s turn to Justice Bersamin:
“The presumption of innocence in favor of an accused in a criminal case is a basic constitutional guarantee. It demands that the State must establish his guilt beyond reasonable doubt. To do so, the Prosecution must rely on the strength of its evidence, not on the weakness of his defense. Every reasonable doubt of his guilt entitles him to an acquittal.”
–People v. Sangcajo, Jr., 2018
To enumerate the principles in the explanation above:
1. The presumption of innocence demands that the State must establish the accused’s guilt beyond reasonable doubt to convict him.
2. The Prosecution must rely on the strength of its evidence, not on the weakness of the accused’s defense.
3. Every reasonable doubt of the accused’s guilt entitles him to an acquittal.
To continue, I guess we should first find out what this “guilt beyond reasonable doubt” means.
It’s a good thing the Rules of Court defined this:
Sec. 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind.
–Sec. 2, Rule 133, Rules of Court
In other words, proof beyond reasonable doubt does not really mean the degree of proof excluding the possibility of error and producing absolute certainty. Only moral certainty or “that degree of proof which produces conviction in an unprejudiced mind” is required.
Presumption of Regularity v. Presumption of Innocence
Next, it should be noted that the presumption of innocence is so strong that it prevails over the presumption of regularity.
In other words, the presumption of regularity is not enough to overthrow the presumption of innocence unless there is proof beyond reasonable doubt against the accused. This is a favorite principle in textbooks:
“The presumption of regularity is merely just that–a mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth. Suffice it to say that this presumption cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt. In the present case the lack of conclusive identification of the illegal drugs allegedly seized from petitioner, coupled with the irregularity in the manner by which the same were placed under police custody before offered in court, strongly militates a finding of guilt.
In our constitutional system, basic and elementary is the presupposition that the burden of proving the guilt of an accused lies on the prosecution which must rely on the strength of its own evidence and not on the weakness of the defense. The rule is invariable whatever may be the reputation of the accused, for the law presumes his innocence unless and until the contrary is shown. In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.”
–Mallillin v. People, 2008
Does this mean that it doesn’t matter what a law enforcement officer does? That his following of the proper guidelines in doing his job will not matter?
NO. It simply means that a presumption of regularity ALONE cannot overcome the presumption of innocence. However, if it is coupled with other basis for conviction, it can prevail over the presumption of innocence:
“Thus, in this case, since it is not the sole basis for conviction, the presumption of regularity of performance of official functions prevails over the constitutional presumption of innocence of the accused.”
–People v. Acuram, 1992
And if the performance of a law enforcement officer’s duty is tainted with irregularity, the presumption of regularity is destroyed and even more weight is put in favor of the accused’s acquittal:
“It is true that where no improper motive can be attributed to the police officers, the presumption of regularity in the performance of official duty should prevail. Such presumption, however, obtains only where there is no deviation from the regular performance of duty. A presumption of regularity in the performance of official duty applies when nothing in the record suggests that the law enforcers deviated from the standard conduct of official duty required by law. Conversely, where the official act is irregular on its face, the presumption cannot arise.”
–People v. Patricio, 2018
Violation of the Presumption of Innocence Can Render a Law Null and Void
But note that the presumption of innocence is not limited to a court setting or a trial. It can also be used to justify the invalidation of a law.
In one case, Batas Pambansa 52 had this provision:
“Any person who has committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices covered by this Act, or to participate in any partisan political activity therein:
provided, that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact.“
It was declared void for violating the presumption of innocence because in effect, a mere charge on a candidate can disqualify him for running for office:
“Explicit is the constitutional provision that, 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 (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code).”
–Dumlao v. COMELEC, 1980
SEGUE: We can use judicial scrutiny to analyze the validity of the law here. This analysis was not used in this case, but we can use the voided provision above as practice.
But why did the SC invalidate the law when it only said that a charge is just prima facie evidence and not really conviction? Well, the SC said that there is a clear and present danger that time constraints will not allow the one charged to rebut the prima facie evidence:
“And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet, there is “clear and present danger” that because of the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him.”
–Dumlao v. COMELEC, 1980
That’s why a different law with a similar provision that does not involve elections but instead involves forfeiture proceedings was not declared void.
The provision reads:
“Sec. 2. Filing of petition.—Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired.“
In declaring the provision valid, the SC said this:
[Neither is the presumption of innocence clause violated by Sec. 2 of RA 1379 which states that property acquired by a public officer or employee during his incumbency in an amount which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property shall be presumed prima facie to have been unlawfully acquired. As elaborated by Fr. Joaquin Bernas, under the principle of presumption of innocence, it is merely required of the State to establish a prima facie case, after which the burden of proof shifts to the accused. In People v. Alicante, the Court held:
“No rule has been better established in criminal law than that every man is presumed to be innocent until his guilt is proved beyond a reasonable doubt. In a criminal prosecution, therefore, the burden is upon the State to prove every fact and circumstance constituting the crime charged, for the purpose of showing the guilt of the accused.
While that is the rule, many of the States have established a different rule and have provided that certain facts only shall constitute prima facie evidence, and that then the burden is put upon the defendant to show or to explain that such facts or acts are not criminal.
It has been frequently decided, in case of statutory crimes, that no constitutional provision is violated by a statute providing that proof by the State of some material fact or facts shall constitute prima facie evidence of guilt, and that then the burden is shifted to the defendant for the purpose of showing that such act or acts are innocent and are committed without unlawful intention.
. . . The State having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention.]
–Ong v. Sandiganbayan, 2005
From what I can tell, the difference between the two cases is that in the first case, there is a clear and present danger that the person can refute the prima facie presumption given by the provision of the law, while in the second case, there is no such clear an present danger in the form of a time constraint.
Thus, I guess its safe to set these rules:
General Rule: The State has the right to declare what acts are criminal, within certain and well-defined limitations, and has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant to overcome the burden.
Exception: The State cannot do so if there is a clear and present danger that will prevent one from overcoming the prima facie evidence against him. (For example: proximity of elections in Dumlao v. COMELEC will not give the person enough time)
Anyway, I just made these rules based on the two cases above so don’t cite them if ever.
To support the rationale of our General Rule, here are some examples:
1. Article 217 of the RPC says that failure of an accountable officer to produce money in his charge upon demand shall be prima facie evidence of malversation
2. Article 315, paragraph 2(d) of the RPC prescribes a period of 3 days from notice within which the issuer of the check must pay the creditor, otherwise, a prima facie inference of deceit constituting false pretense of fraudulent act will arise.
What about the law on preventive suspension? Does it violate the presumption of innocence? NO, because it is not a penalty:
“…a person under preventive suspension, especially in a criminal action, remains entitled to the constitutional presumption of innocence as his culpability must still be established.
x x x x x
All told, preventive suspension is not violative of the Constitution as it is not a penalty. In fact, suspension particularly under Section 13 of Rep. Act 3019 is mandatory once the validity of the information is determined. 18 What the Constitution abhors is an indefinite preventive suspension as it violates the due process and equal protection clauses, 19 and the right of public officers and employees to security of tenure.”
–Gonzaga v. Sandiganbayan, 1991
Equipoise Rule
The equipoise rule is pretty easy to understand and can be added to the principles derived from the presumption of innocence which we enumerated earlier:
1. The presumption of innocence demands that the State must establish the accused’s guilt beyond reasonable doubt to convict him.
2. The Prosecution must rely on the strength of its evidence, not on the weakness of the accused’s defense.
3. Every reasonable doubt of the accused’s guilt entitles him to an acquittal.
The equipoise rule is simply this:
“the equipoise rule provides that where the evidence in a criminal case [is] evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused.”
–People v. Lagmay, 1999
When do we apply the equipoise rule? Or in other words, what do we mean by “evenly balanced”?:
“The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations — one of which is consistent with the innocence of the accused and the other with his guilt — in which case the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.”
–Mahawan v. People, 2008
Keywords: equipoise, evenly balanced, inculpatory facts and circumstances capable of two or more explanations, one consistent with the innocence of the accused and the other with his guilt.
It thus follows that the equipoise rule cannot be applied where the evidence of the prosecution is overwhelming.
Quick questions:
Is the presumption of innocence available to natural persons only? YES. Because the right is only available to someone accused in a criminal case. We can’t file a criminal case against a juridical entity/corporation:
“Before we proceed to a discussion of the factual findings of the Court of Appeals, it bears mention that petitioner, which is a corporate entity, has no personality to invoke the right to be presumed innocent which right is available only to an individual who is an accused in a criminal case.“
–Feeder International Line v. CA, 1991
When does the presumption of innocence end? Does it end upon conviction? NO. Until a promulgation of final conviction is made, this constitutional mandate prevails.
“This presumption in favor of the accused remains until the judgment of conviction becomes final and executory. Borrowing the words of the Court in Mangubat v. Sandiganbayan, “until a promulgation of final conviction is made, this constitutional mandate prevails.” Hence, even if a judgment of conviction exists, as long as the same remains pending appeal, the accused is still presumed to be innocent until his guilt is proved beyond reasonable doubt.”
–Polangcos v. People, 2019
TO RECAP:
1. The presumption of innocence demands that the State must establish the accused’s guilt beyond reasonable doubt to convict him.
2. The Prosecution must rely on the strength of its evidence, not on the weakness of the accused’s defense.
3. Every reasonable doubt of the accused’s guilt entitles him to an acquittal.
4. The equipoise rule provides that where the evidence in a criminal case [is] evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused.
5. The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations — one of which is consistent with the innocence of the accused and the other with his guilt — in which case the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.
6. Proof beyond reasonable doubt does not contemplate absolute certainty. Only moral certainty or “that degree of proof which produces conviction in an unprejudiced mind” is required.
7. General Rule: The State has the right to declare what acts are criminal, within certain and well-defined limitations, and has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant to overcome the burden.
Exception: The State cannot do so if there is a clear and present danger that will prevent one from overcoming the prima facie evidence against him. (For example: proximity of elections in Dumlao v. COMELEC will not give the person enough time)
8. Is the presumption of innocence available to natural persons only? YES. Because the right is only available to someone accused in a criminal case.
9. When does the presumption of innocence end? Does it end upon conviction? NO. Until a promulgation of final conviction is made, this constitutional mandate prevails.
10. Does the law on preventive suspension violate the presumption of innocence? NO, because it is not a penalty.
Alright, let’s move on to the right to be heard.
RIGHT TO BE HEARD
“Already implicit in due process, the right of the accused to be heard by himself and counsel is still affirmed specifically in Section 14(2), presumably to give emphasis where added emphasis is due. Such a right is indispensable in any criminal prosecution where the stakes are the liberty or even the life of the accused, who must for this reason be given a chance to defend himself.”
-Justice Isagani Cruz, Constitutional Law, 2013, pp. 329-330
And according to Fr. Bernas, the elements of the general right to be heard are:
(1) the right to be present at the trial;
(2) the right to counsel;
(3) the right to an impartial judge;
(4) the right of confrontation;
(5) the right to compulsory process to secure the attendance of witnesses.
-Fr. Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011, p. 13
There’s really not much issues in the “right to be heard by himself” part while more cases can stem from the “and counsel” part.
To simplify the “right to be heard by himself,” it simply means that the accused be given a chance to defend himself. This includes the chance to testify in their behalf if they want to and present additional evidence if they are allowed by law:
[With respect to the other three accused, Ponciano, Mario and Rolando Lumague, who pleaded not guilty and who were tried ahead of Juanito, there is merit in their contention that they were denied due process of law because they were not given a chance to testify in their behalf and to present additional evidence.
An accused has the constitutional right “to be heard by himself and counsel” and the right “to testify as a witness in his own behalf.”]
Example:
To strip the accused of all his pre-assigned trial dates is a violation of the constitutional right to be heard:
“The right of the accused to present evidence is guaranteed by no less than the Constitution itself. Article III, Section 14(2) thereof, provides that “in all criminal prosecutions, the accused … shall enjoy the right to be heard by himself and counsel…” This constitutional right includes the right to present evidence in one’s defense, as well as the right to be present and defend oneself in person at every stage of the proceedings.
x x x
Stripping the accused of all his pre-assigned trial dates constitutes a patent denial of the constitutionally guaranteed right to due process.”
–Villareal v. People, 2012
I think there are more ways to violate the right to be heard, but I think we can spot them easily.
Let’s move on to the “and counsel” part.
ASSISTANCE OF COUNSEL
We’ve already discussed the importance of a competent and independent counsel in our post on custodial investigation. Is there a difference with the right to counsel afforded to the accused? Maybe.
But, what is sure is it becomes more important in a trial setting:
“It has previously been observed that the right to counsel now begins from the time a person is taken into custody and placed under investigation for the commission of a crime. Manifestly, this right becomes all the more important when he is already on trial and confronted by a skilled and experienced prosecutor. The intricacies of courtroom procedure are not within the knowledge of the ordinary layman, let alone one who is ignorant and unlettered. That is why the accused is entitled to be heard in his defense not only by himself but also with the assistance of counsel. A counsel de officio shall be appointed for him if he cannot afford the services of a retained lawyer.”
-Justice Isagani Cruz, Constitutional Law, 2013, p. 330
In a practical sense, who can violate this right? The judge or the court because he has the corresponding duty to uphold the accused’s right to counsel:
[The trial court has] four-fold duties under Section 6 of Rule 116 of the Rules of Court, namely,
(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.]
–People v. Agbayani, 1998
There are also times when the right to counsel can be violated not because of an erring judge but merely because of ineffective counsel. We’ll learn about this later.
Can the right to counsel be waived? NO!:
“It may be relevant to recall that, in respect to the constitutional right of an accused to be heard by himself and counsel, this Court has held that during the trial, the right to counsel cannot be waived. The rationale for this ruling was articulated in People v. Holgado [1975], where we declared that ‘even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence.'”
–Cruz v. Mijares, 2008
But what about Rule 138 Sec. 34?:
“Section 34. By whom litigation conducted. — In the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for the purpose, or with the aid an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.”
–Sec. 34, Rule 138, Rules of Court
Well, the provision above cannot supersede the Constitutional right of an accused to counsel. Thus, the obvious conclusion is that being able to represent oneself in court is allowed EXCEPT in criminal cases:
“The case at bar involves a civil case, with the petitioner as plaintiff therein. The solicitous concern that the Constitution accords the accused in a criminal prosecution obviously does not obtain in a civil case. Thus, a party litigant in a civil case, who insists that he can, without a lawyer’s assistance, effectively undertake the successful pursuit of his claim, may be given the chance to do so. In this case, petitioner alleges that he is a law student and impliedly asserts that he has the competence to litigate the case himself. Evidently, he is aware of the perils incident to this decision.”
–Cruz v. Mijares, 2008
I guess we can say that that’s another difference of the right to counsel between a person under custodial investigation and an accused. The former can be waived provided it is done in writing and in the presence of counsel, while the latter can never be waived.
Moving on, it should be noted that the 4-fould duties of the judge mentioned above are presumed to be complied with by the court:
“It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right.”
–People v. Agbayani, 1998
Regarding the 4-fold duties of the court we mentioned above, is it always mandatory?
NO, it is only mandatory to appoint a counsel de oficio during arraignment. After arraignment, it is only discretionary upon the court to appoint a counsel de oficio:
“The Court finds the petitioner’s plea that it was incumbent upon the trial judge to appoint a counsel de oficio who for him when he appeared without his counsel utterly without legal basis. The duty of the court to appoint a counsel 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 the evidence for the defense has arrived, he appears by himself alone and the absence of his counsel was inexcusable.”
–Sayson v. People, 1988
And such discretion will not be interfered with unless it is tainted with grave abuse (Maybe for example when the current counsel is obviously unqualified). An example of evidence that the court did not abuse its discretion is when it had been liberal in granting postponements or perhaps other measures that benefit the accused:
“At the most, the appointment of a counsel de oficio in a situation like the present case would be discretionary with the trial court, which discretion will not be interfered with in the absence of grave abuse. This Court is convinced that the trial court had been liberal in granting postponements asked by the petitioner himself. We think that such liberality removes any doubt that its order was tainted with grave abuse of discretion.”
–Libuit v. People, 2005
In Sec. 12(1), a person under custodial investigation is required to have COMPETENT and INDEPENDENT counsel. Is it the same for a person accused of a crime?
The answer is kind of YES, but more emphasis on the COMPETENT as there is little issue to independence during trial.
The key phrase is “EFFICIENT and TRULY DECISIVE LEGAL ASSISTANCE and not a simple perfunctory representation“:
“The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is a part of a person’s basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily.
The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation.”
–People v. Bermas, 1999
Or for a simpler version, the key phrase may be “_____ was not properly and effectively accorded the right to counsel” as used in this decision:
“…the Court has ordered the remand of a rape case when it found that accused was given mere perfunctory representation by aforesaid counsels such that appellant was not properly and effectively accorded the right to counsel.”
–People v. Santocildes, 1999
Or another version is “effective and adequate” counselling/counsel:
“A criminal case is a serious matter that deserves serious attention especially in cases involving capital punishment. Under the present Revised Rules of Criminal Procedure, whenever a counsel de officio is appointed by the court to defend the accused at the arraignment, he shall be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment. Counsel de officio’s haste in proceeding with the arraignment falls short of the standard mandated by the rules for an effective and adequate counseling. The limited time allotted for consultation with accused-appellant seriously casts doubt on whether counsel de officio has indeed sufficiently explained to the accused-appellant the crime charged, the meaning of his plea, and its consequences.“
–People v. Bascuguin, 2001
So how do we know if the assistance of counsel is effective and truly decisive? Or more importantly, how do we know if it is not? We look at jurisprudence of course. Our excerpt above shows one example. Let’s see the others.
1. People v. Beriber (2004)- where the counsel de oficio (1) only subjected 1 out of 6 witnesses of the prosecution to cross-examination and (2) did not explain to the trial court why they (she and the accused) will not present evidence to prove that the accused is not guilty:
“The inadequacy of the legal assistance rendered by the counsel de oficio to appellant during the course of the trial is manifest from the records. Although appellant’s counsel de oficio was aware of her client’s plea of ‘not guilty’ to the offense charged, she exerted very little effort in convincing the trial court of appellant’s innocence. She subjected only one out of six prosecution witnesses to cross-examination, to test their accuracy, truthfulness and freedom from bias, and to elicit facts and information relevant to the appellant’s defense. Moreover, after appellant waived his right to present evidence, presumably with Atty. Palencia’s assistance, or upon her advice, she did not explain to the trial court, by way of manifestation or demurrer to evidence, why they were not presenting evidence to prove that appellant is not guilty.
That Atty. Palencia was merely counsel de oficio does not excuse her lack of zeal and vigor in defending appellant. The duty of a lawyer to serve his client with competence and diligence applies without distinction to counsel de parte or de oficio, and becomes even more compelling when the client is accused of a grave crime and is in danger of forfeiting his life if convicted.“
2. People v. Besonia (2004)- where even the counsel de parte can be ruled as ineffective when (1) failure to question the legality of the accused’s arrest before arraignment, (2) failed to object to the admissibility of the firearm seized after the accused’s arrest, (2) failure to advise the accused of the consequences of a plea of guilty, (4) did not advise his client during the searching inquiry done by the court after the accused plead guilty, and (5) Failure to cross-examine the police officers and lackadaisical cross-examination of the other witnesses:
“Additionally, we observe that Besonia’s defense counsel Atty. Perez merely performed a lackadaisical and perfunctory representation of the appellant before and during the trial. First, he failed to question before the arraignment the legality of Besonia’s arrest, which failure is deemed as a waiver of the right to raise that question once an accused enters a plea. Second, he failed to object to the admissibility of the firearm seized after Besonia’s arrest. Third, there is no showing that he advised Besonia of the consequences of his plea of guilty to the crimes of murder. Fourth, he remained silent throughout the searching inquiry. Fifth, he did not cross-examine the police officers, and his cross-examination of the two doctors was limited to only two questions each. Lastly, he did not present any evidence on behalf of Besonia. These are all indicative of his failure to effectively provide Besonia with qualified and competent representation. His behavior irrefutably falls short of the demanding mandate required of a lawyer to defend an accused no matter how guilty the latter may seem to be. In short, his deportment evinces an apparent disregard of his fidelity to his oath as a lawyer and responsibility as an officer of the court to aid in the administration and dispensation of justice.“
3. Callangan v. People (2006)- where the counsel de parte failed to present evidence for the accused:
“The omissions of petitioner’s counsel amounted to an abandonment or total disregard of her case. They show conscious indifference to or utter disregard of the possible repercussions to his client. Thus, the chronic inaction of petitioner’s counsel on important incidents and stages of the criminal proceedings constituted gross negligence.
The RTC itself found that petitioner never had the chance to present her defense because of the nonfeasance (malfeasance, even) of her counsel. It also concluded that, effectively, she was without counsel.[6] Considering these findings, to deprive petitioner of her liberty without affording her the right to be assisted by counsel is to deny her due process.
x x x x
Petitioner was accorded grossly insufficient legal assistance by a counsel who did not devote himself to the defense of her cause. Counsel’s utter lack of action after the prosecution rested its case revealed an extreme shortcoming on his part. Such inaction definitely proved infidelity to and abandonment of petitioner’s cause.“
These first three cases give us a feel on what the opposite of a effective and truly decisive legal assistance looks like. But, they are more about the fault of the counsel than that of the court/judge.
If that’s the case, the general rule is A CLIENT IS BOUND BY THE MISTAKES OF HIS LAWYER:
“The long-standing rule in this jurisdiction is that a client is bound by the mistakes of his lawyer. Mistakes of attorneys as to the competency of a witness, the sufficiency, relevancy or irrelevancy of certain evidence, the proper defense or the burden of proof, failure to introduce evidence, to summon witnesses, and to argue the case, unless they prejudice the client and prevent him from properly presenting his case, do not constitute gross incompetence or negligence.”
–Andrada v. People, 2005
The exceptions are:
“The rule that the negligence of counsel binds the client admits of exceptions. The recognized exceptions are:
(1) where reckless or gross negligence of counsel deprives the client of due process of law,
(2) when its application will result in outright deprivation of the client’s liberty or property or
(3) where the interests of justice so require. In such cases, courts must step in and accord relief to a party-litigant.”
–Callangan v. People, 2006
We just have to memorize these three and apply them in bar problems that we think they’d be useful. The sample cases will give us an idea of when these exceptions can apply.
Now, let’s look at cases where it is the judge’s fault for allowing ineffective counsel to assist the accused.
1. People v. Malunsing (1975)- Where the trial court appointed a reluctant counsel de oficio who then proceeded to not present evidence for the accused. Further, the trial court did not apprise the accused of his fundamental right to be assisted by a lawyer and did not ask why the accused did not take the stand like his co-accused did:
[It was the failure of the lower court to respect the constitutional right to counsel, so it is alleged, that is the basis for seeking the reversal of a conviction for murder of appellant Manuel Villegas. There is more than ample support in the records for the charge thus hurled. As therein shown, Attorney Geronimo Pajarito explicitly manifested in the opening of the trial that appellant intimated to him that he had his own lawyer. There was an admission that he did appear for him in the preliminary investigation but only because there was no other counsel. Parenthetically, it may be observed that while in the original complaint there were two other accused with the same surname as the lawyer, Geremias Pajarito and Samuel Pajarito, after such preliminary investigation, no doubt due to the efforts of this particular lawyer, possibly a kinsman, they “were both discharged for lack of probable cause.” To resume, the lower court at this stage then asked whether the appellant notified Attorney Pajarito about his change of mind. When he answered in the negative, the Court stated: “All right, you have a lawyer who is appearing for you.” It is to the credit of such counsel that he had reservations about the matter, stating that as the accused had manifested that he had dispensed with his services, his representation might later on be questioned. The court was not sufficiently impressed. Appellant was informed that “the Court will give you a lawyer. Atty. Pajarito is appointed as counsel de oficio for you. We will proceed with the trial.” After marking it of record that he was appointed as such counsel de oficio, the attorney was asked whether he wanted to confer with appellant. This was the answer: “I think I know the case.” The Court then immediately proceeded with the hearing, having the first witness called. In the decision itself, there is this meaningful admission by the court: “No evidence was presented for and in behalf of Manuel Villegas.]
2. People v. Magsi (1983)- where the court also appointed a reluctant counsel de officio who initially withdrew but was ultimately reappointed. The court did not also allow the accused and his counsel enough time to discuss the case before the accused pled guilty becaue of the court’s prodding (persuasion).
[Recorded proceedings at the first instance on September 9, 1970 reproduced previously, showed that de officio counsel Atty. Rivera and accused were hardly afforded by the Court any opportunity to discuss the case together, and the qualified plea of guilty resulted from the Court’s proddings rather than from accused’s spontaneous volition.
At the second instance, the Court knew that accused’s prior plea of guilty was qualified by alleged duress employed on him by the other accused. It behooved the Court to allow the accused an opportunity to present evidence on the alleged duress, as well as discover for itself the reasons for accused’s change of mind regarding his plea.
But more importantly, the Court could have complied, as it failed to do so the first time, with its bounden duty to apprise and advise the accused of the seriousness of the charges, the meaning of the qualifying and modifying circumstances, and gravity of the penalty that may be imposed on him despite the plea of guilty, as well as received prosecution’s evidence on the alleged aggravating circumstances attendant to the commission of the offense charged. But these considerations notwithstanding, sans any evidence whatsoever from the prosecution nor from the defense, after Atty. Cariaso’s manifestation, and its trite queries addressed to the accused whether he confirmed the same or not, the Court proceeded to decide the case.]
This case also contains a compilation of cases involving reluctant counsels de officio and erring judges.
Anyway, does it matter really who is responsible for the violation of the right to counsel? In Bar exams, it seems that it doesn’t matter. What matters is if there is a violation or not.
Now, another tough question. What happens if, after conviction, the accused discovers that the lawyer is not a member of the bar. Should there be a new trial? YES!:
[On the matter of proper representation by a member of the bar, we had occasion to resolve a similar issue in the case of Delgado v. Court of Appeals. In Delgado, petitioner and two others were convicted by the trial court of the crime of estafa thru falsification of public and/or official documents. One accused did not appeal. Petitioner Delgado and her remaining co-accused appealed to the Court of Appeals, which affirmed petitioner’s conviction but acquitted her co-accused. After entry of judgment, petitioner discovered that her lawyer was not a member of the bar and moved to set aside the entry of judgment. The Court of Appeals denied petitioner’s motion, hence, she filed a petition for certiorari with this Court. The Court set aside the assailed judgment and remanded the case to the trial court for a new trial, explaining that –
“This is so because an accused person is entitled to be represented by a member of the bar in a criminal case filed against her before the Regional Trial Court. Unless she is represented by a lawyer, there is great danger that any defense presented in her behalf will be inadequate considering the legal perquisites and skills needed in the court proceedings. This would certainly be a denial of due process.”]
–People v. Sanotcildes, 1999, citing Delgado v. CA, 1986
Now, what if the accused does not want to be appointed a counsel de oficio and insists on a counsel de parte (but then such counsel de parte is absent)? Is the court correct? Yes There are three reasons:
1. There is no denial of the right to counsel where a counsel de oficio was appointed during the absence of the accused’s counsel de parte pursuant to the court’s desire to finish the case as early as practicable under the continuous trial system
2. The right to counsel of an accused “preferably of his own choice” pertains more aptly and specifically to a person under custodial investigation
3. And even if we extend the application of Sec. 12(1) to an accused’s right to counsel, the court can still appoint a counsel de oficio when the counsel de parte is absent. Otherwise, the trial will solely be in the hands of the accused who can just choose a counsel that is not available in order to delay the proceedings:
[Anent the right to counsel, appellants fault the trial court: first, for appointing counsel de oficio despite their insistence to be assisted by counsel of their own choice..x x x x
Appellants cannot feign denial of their right to counsel. We have held that there is no denial of the right to counsel where a counsel de oficio was appointed during the absence of the accused’s counsel de parte, pursuant to the court’s desire to finish the case as early as practicable under the continuous trial system.
Indisputably, it was the strategic machinations of appellants and their counsel de parte which prompted the trial court to appoint counsel de oficio. The unceremonious withdrawal of appellants’ counsel de parte during the proceedings of August 24, 1998, as well as their stubborn refusal to return to the court for trial undermines the continuity of the proceedings. Considering that the case had already been dragging on a lethargic course, it behooved the trial court to prevent any further dilatory maneuvers on the part of the defense counsel. Accordingly, it was proper for the trial court to appoint counsel de oficio to represent appellants during the remaining phases of the proceedings.
At any rate, the appointment of counsel de oficio under such circumstances is not proscribed by the Constitution. An examination of its provisions concerning the right to counsel shows that the “preference in the choice of counsel” pertains more aptly and specifically to a person under investigation rather than an accused in a criminal prosecution. And even if we are to extend the “application of the concept of “preference in the choice of counsel” to an accused in a criminal prosecution, such preferential discretion is not absolute as would enable him to choose a particular counsel to the exclusion of others equally capable.
x x x x
…the choice of counsel by the accused in a criminal prosecution is not a plenary one. If the chosen counsel deliberately makes himself scarce, the court is not precluded from appointing a de oficio counsel whom it considers competent and independent to enable the trial to proceed until the counsel of choice enters his appearance. Otherwise, the pace of a criminal prosecution will be entirely dictated by the accused to the detriment of the eventual resolution of the case.]
–People v. Larrañaga, 2004, The infamous Paco Larrañaga case
So when does the right to counsel end? Does it end upon conviction? No, it continues during appeal. That’s why if an accused withdraws an appeal citing as reason that he cannot afford counsel, the court is obliged to appoint a counsel de oficio. They cannot allow the withdrawal of the appeal:
[This right to a counsel de oficio does not cease upon the conviction of an accused by a trial court. It continues, even during appeal, such that the duty of the court to assign a counsel de oficio persists where an accused interposes an intent to appeal. Even in a case, such as the one at bar, where the accused had signified his intent to withdraw his appeal, the court is required to inquire into the reason for the withdrawal. Where it finds the sole reason for the withdrawal to be poverty, as in this case, the court must assign a counsel de oficio, for despite such withdrawal, the duty to protect the rights of the accused subsists and, perhaps, with greater reason. After all, “those who have less in life must have more in law.” Justice should never be limited to those who have the means. It is for everyone, whether rich or poor. Its scales should always be balanced and should never equivocate or cogitate in order to favor one party over another.]
–People v. Rio, 1991
And that’s it.
TO RECAP:
1. The trial court has four-fold duties under Section 6 of Rule 116 of the Rules of Court, namely,
(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.]
2. The 4-fould duties of the judge mentioned above are presumed to be complied with by the court.
Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right
3. Can the right to counsel be waived? NO! Why? Because even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence.
4. Is it always mandatory that the court appoints a counsel de oficio? NO. It is only mandatory to appoint a counsel de oficio during arraignment. After arraignment, it is only discretionary upon the court.
And such discretion will not be interfered with unless it is tainted with grave abuse.
5. Key phrases to use in dealing with incompetent right to counsel:
-EFFICIENT and TRULY DECISIVE LEGAL ASSISTANCE and NOT A SIMPLE PERFUNCTORY REPRESENTATION
-____ was not properly and effectively accorded the right to counsel
-effective and adequate counselling/counsel
6. General Rule: A CLIENT IS BOUND BY THE MISTAKES OF HIS LAWYER
Exceptions:
(1) where reckless or gross negligence of counsel deprives the client of due process of law,
(2) when its application will result in outright deprivation of the client’s liberty or property or
(3) where the interests of justice so require. In such cases, courts must step in and accord relief to a party-litigant.
7. Counsel should be a member of the bar. Why? Because unless she is represented by a lawyer, there is great danger that any defense presented in her behalf will be inadequate considering the legal perquisites and skills needed in the court proceedings. This would certainly be a denial of due process.
8. What if the accused does not want to be appointed a counsel de oficio and insists on a counsel de parte (but then such counsel de parte is absent)? Is the court correct? Yes There are three reasons:
(1) There is no denial of the right to counsel where a counsel de oficio was appointed during the absence of the accused’s counsel de parte pursuant to the court’s desire to finish the case as early as practicable under the continuous trial system
(2) The right to counsel of an accused “preferably of his own choice” pertains more aptly and specifically to a person under custodial investigation
(3) And even if we extend the application of Sec. 12(1) to an accused’s right to counsel, the court can still appoint a competent and independent counsel de oficio when the counsel de parte is absent. Otherwise, the trial will solely be in the hands of the accused who can just choose a counsel that is not available in order to delay the proceedings
9. When does the right to counsel end? Does it end upon conviction? No, it continues during appeal. There should be an intent to appeal first. Thus, where the accused had signified his intent to withdraw his appeal, the court is required to inquire into the reason for the withdrawal. Where it finds the sole reason for the withdrawal to be poverty, as in this case, the court must assign a counsel de oficio, for despite such withdrawal, the duty to protect the rights of the accused subsists and, perhaps, with greater reason. After all, “those who have less in life must have more in law.”
The Bartender 