Onto the last part of rights of the accused.
RIGHT OF CONFRONTATION
This right is often associated with the right to cross-examine a witness.
“The right of confrontation is one of the fundamental rights guaranteed by the Constitution to the person facing criminal prosecution who should know, in fairness, who his accusers are and must be given a chance to cross-examine them on their charges. No accusation is permitted to be made against his back or in his absence not is any derogatory information accepted if it is made anonymously, as in poison pen letters sent by persons who cannot stand by their libels and must shroud their spite in secrecy. That is also the reason why ex-parte affidavits are not permitted unless the affiant is presented in court and hearsay is barred save only in the cases allowed by the Rules of Court like the dying declaration.”
–Talino v. Sandiganbayan, 1987
The right of confrontation has two purposes:
“(1) primarily, to afford the accused an opportunity to test the testimony of the witness by cross-examination; and
(2) secondarily, to allow the judge to observe the deportment of the witness.”
–People v. Nicolas, 2002, citing Fr. Bernas
So what is the effect when the accused is not afforded the opportunity to test the testimony of the witness through cross-examination? The testimony should be inadmissible and stricken off the record:
“A corollary of the right of confrontation is that testimony not subjected to cross-examination must be excluded from consideration.”
-Fr. Bernas, The 1987 Constitution of the R.P. A Commentary, 2009, p. 531
But what if the cross-examination was not completed? What happens then? It depends on whose fault it was:
1. If the cross-examination was not completed due to the fault of the party offering the witness (like failure to present him upon the date of cross-examination), the uncompleted testimony is inadmissible IN WHOLE.
2. If the cross-examination was not completed due to the fault of the cross-examiner (like declining to cross-examine), the testimony AS A WHOLE REMAINS ADMISSIBLE.
3. If the cross-examination was not completed due to NEITHER the fault of the parties (unexpected death of the witness), then ONLY the part of the direct testimony already covered by cross-examination is admissible in evidence.
This is explained in the case of People v. Seneris (1980):
[On the other hand, when the cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, as was the situation in the Lufthansa German Airlines case (64 SCRA 610 [1975]) relied upon by respondent judge, the uncompleted testimony is thereby rendered incompetent and inadmissible in evidence. WE emphasized in the said case that “[T]he right of a party to cross examine the witness of his adversary is invaluable as it is inviolable in civil cases, no less than the right of the accused in criminal cases. The express recognition of such right of the accused in the Constitution does not render the right of parties in civil cases less constitutionally based, for it is an indispensable part of the due process guaranteed by the fundamental law. Subject to appropriate supervision by the judge in order to avoid unnecessary delays on account of its being unduly protracted and to needed injunctions protective of the right of the witness against self-incrimination and oppressive and unwarranted harassment and embarrassment, a party is absolutely entitled to a full cross-examination as prescribed in Section 8 of Rule 132 x x x. Until such cross-examination has been finished, the testimony of the witness cannot be considered as complete and may not, therefore, be allowed to form part of the evidence to be considered by the court in deciding the case” (p. 637). However, WE likewise therein emphasized that where the right to cross examine is lost wholly or in part through the fault of the cross-examiner, then the testimony on direct examination may be taken into account; but when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent (p. 636).
x x x x
WHEREFORE, THE AUGUST 4, 1978 ORDER OF THE RESPONDENT JUDGE IS HEREBY SET ASIDE; THE RESTRAINING ORDER OF DECEMBER 4, 1978 ISSUED BY THIS COURT IS HEREBY LIFTED; AND RESPONDENT JUDGE OR HIS SUCCESSOR IS ACCORDINGLY ORDERED TO PROCEED WITH THE TRIAL OF CRIMINAL CASE NO. 750 (1742) AND TO ADMIT AND CONSIDER IN DECIDING THE CASE THE TESTIMONY OF THE DECEASED WITNESS MARIO NEMENIO y DELOS SANTOS EXCLUDING ONLY THE PORTION THEREOF CONCERNING THE AGGRAVATING CIRCUMSTANCE OF PRICE OR REWARD WHICH WAS NOT COVERED BY THE CROSS-EXAMINATION.]
BUT then we also have to take note that there are exceptions to the right to confrontation. I guess the exceptions to the hearsay rule under Rule 130(C)(6) like dying declarations, part of the res gestae, testimony at a previous proceeding, etc., applies here. We won’t discuss them as they’re for sure most suited for remedial law.
The next question that we should ask is “when does the right to confrontation become available?” It only becomes available during the trial proper and not in proceedings before that like a preliminary investigation:
[The right to confrontation of witnesses neither applies to a preliminary hearing. The reason therefor has been explained thus:
… It can not be seriously contended that an accused person has a right to be present during this stage of the proceedings. To hold that he had such a right and to reverse a judgment of conviction on this ground would have the effect of destroying the very purpose of that part of the criminal law. It would be against public policy. It is frequently essential that such investigations be kept secret and that the accused should have no suspicion of any complaint against him, otherwise he might avoid punishment for his crime by escaping before arrest. (U.S. vs. Grant, et al., 18 Phil. 122, 147)
… it is often the only means of discovering the persons who may reasonably be charged with the crime so as to enable the fiscal to prepare his complaint or information, … (People vs. Badilla, 48 Phil., 719, 731)]
–Marinas v. Siochi, 1981
But take note that even if it is not covered by the constitutional right of confrontation, there is a statutory right under Rule 112(3) of the Rules of Court which allows a person investigated to examine the evidence against him if the investigator finds it fitting to do so. It is also his right to present counter-affidavits. There may also be a hearing BUT there is no right to cross-examination in such hearing. This preliminary investigation is for the purpose of determining whether there is probable cause to arrest said person:
[Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.
x x x x]
Moving on, let’s see some interesting cases on the right of confrontation.
1. People v. Sergio (2019)- Where Mary Jane Veloso, a Filipino scheduled to be executed in Indonesia, was the only witness to the prosecution of the drug traffickers responsible for her unfortunate predicament. However, she can’t come to the Philippines as Indonesia won’t allow this. What was allowed is her deposition in Indonesia which shall be presided by the RTC trial judge and that direct examination and cross-examination will only be through written interrogatories, no cameras or lawyers of either parties allowed. The process is that the direct examination questions will be determined in advance with the defense objecting thereto and the judge ruling on the objections. After that, the final set of questions for direct will be in written form and presented to the witness who will also answer in writing with the trial judge present. Within 10 days, the defense will look at the answers and also formulate their cross-examination questions in advance and this will be scrutinized by the prosecution with the judge ruling on the objections. This process was eventually declared by the Supreme Court as not violative of the right of confrontation because it satisfies the two-fold purpose of the right of confrontation and that it can be considered as a dying declaration:
[The right to confrontation is part of due process not only in criminal proceedings but also in civil proceedings as well as in proceedings in administrative tribunals with quasi-judicial powers. It has a two-fold purpose: (1) primarily, to afford the accused an opportunity to test the testimony of the witness by cross-examination; and (2) secondarily, to allow the judge to observe the deportment of the witness.
True, Cristina and Julius have no opportunity to confront Mary Jane face to face in light of the prevailing circumstance. However, the terms and conditions laid down by the trial court ensure that they are given ample opportunity to cross-examine Mary Jane by way of written interrogatories so as not to defeat the first purpose of their constitutional right. To recall, the trial court requires Cristina and Julius, through their counsel, to file their comment and may raise objections to the proposed questions in the written interrogatories submitted by the prosecution. The trial court judge shall promptly rule on the objections. Thereafter, only the final questions would be asked by the Consul of the Philippines in Indonesia or his designated representative. The answers of Mary Jane to the propounded questions must be written verbatim, and a transcribed copy of the same would be given to the counsel of the accused who would, in turn, submit their proposed cross interrogatory questions to the prosecution. Should the prosecution raised any objection thereto, the trial court judge must promptly rule on the same, and the final cross interrogatory questions for the deposition of Mary Jane will then be conducted. Mary Jane’s answers in the cross interrogatory shall likewise be taken in verbatim and a transcribed copy thereof shall be given to the prosecution.
The second purpose of the constitutional right to confrontation has likewise been upheld. As aptly stated in the terms and conditions for the taking of deposition, the trial court judge will be present during the conduct of written interrogatories on Mary Jane. This will give her ample opportunity to observe and to examine the demeanor of the witness closely. Although the deposition is in writing, the trial court judge can still carefully perceive the reaction and deportment of Mary Jane as she answers each question propounded to her both by the prosecution and the defense.
Indubitably, the constitutional rights of Cristina and Julius are equally safeguarded. The parameters laid down by the trial court are sufficient in detail ensuring that Mary Jane will give her testimony under oath to deter lying by the threat of perjury charge. She is still subjected to cross-examination so as to determine the presence of any falsehood in her testimony. Lastly, the guidelines enable the trial court judge to observe her demeanor as a witness and assess her credibility.
Finally, it must be mentioned that a “dying declaration” is one of the recognized exceptions to the right to confrontation. In the case at bar, it will not be amiss to state that Mary Jane’s deposition through written interrogatories is akin to her dying declaration. There is no doubt that Mary Jane will be answering the written interrogatories under the consciousness of an impending death – or execution by a firing squad to be exact. To stress, Mary Jane has been convicted by final judgment and sentenced to death by firing squad. Mary Jane has already availed of all available legal remedies and there is no expectation that her conviction will be overturned by the Indonesian authorities. The only purpose for the grant of the reprieve was for Mary Jane to assist the prosecution in erecting its case against her recruiters and traffickers. There was nary any mention that the outcome of the legal proceedings here in the Philippines will have a concomitant effect in Mary Jane’s conviction by the Indonesian authorities. That Mary Jane is facing impending death is undisputed considering the nature of her reprieve which is merely temporary. It is therefore not a stretch of imagination to state that Mary Jane’s declarations in her deposition “are made in extremity, [she being] at the point of death, and x x x every hope of this world is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth,” to vindicate oneself, and to secure justice to her detractors.]
2. Ho Wai Pang v. People (2011)- Where the accused was a Hongkong national and could not understand the testimony of the witness against him. He argued that because of this, his right of confrontation was violated. The SC ruled that his right of confrontation was not impaired. It is sufficient that his lawyers were able to cross-examine the witness. After all, he has not shown that the lack of an interpreter greatly prejudiced him:
[As borne out by the records, petitioner did not register any objection to the presentation of the prosecution’s evidence particularly on the testimony of Cinco despite the absence of an interpreter. Moreover, it has not been shown that the lack of an interpreter greatly prejudiced him. Still and all, the important thing is that petitioner, through counsel, was able to fully cross-examine Cinco and the other witnesses and test their credibility. The right to confrontation is essentially a guarantee that a defendant may cross-examine the witnesses of the prosecution.]
3. Kim Liong v. People (2018, penned by Leonen)- where the right to cross-examination may be waived expressly or impliedly by conduct amounting to a renunciation of the right to cross-examination. This case also contains 3 instances where waiver is implied:
(1) When the prosecution postpones the date of cross-examination and the witness dies thereafter
(2) When the accused escapes and the trial was held in absentia
(3) When the accused abuses his option to choose his counsel like when he frequently changes them:
[However, like any right, the right to cross-examine may be waived. It “is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination.” When an accused is given the opportunity to cross-examine a witness but fails to avail of it, the accused shall be deemed to have waived this right. The witness’ testimony given during direct examination will remain on record. If this testimony is used against the accused, there will be no violation of the right of confrontation.
In People v. Narca, the trial court deferred to another date the cross examination of the prosecution witness on the instance of the accused. However, in the interim, the prosecution witness was murdered. Thus, the accused moved that the testimony of the prosecution witness be stricken off the record for lack of cross-examination. This Court rejected the argument, finding that the accused waived their right to cross-examine the prosecution witness when they moved for postponement. It said that “mere opportunity and not actual cross-examination is the essence of the right to cross-examine.”
In Gimenez v. Nazareno, the accused, after arraignment but before trial, escaped from his detention center. Trial ensued despite his absence and the accused was subsequently convicted of murder. On appeal, the accused contended that the testimonies against him should be stricken off the record because he failed to exercise his right to cross-examine the witnesses against him. Rejecting this contention, this Court held that an escapee who has been tried in absentia does not retain the rights to confront and cross-examine the witnesses against him. These rights are personal and “by his failure to appear during the trial of which he had notice,” this Court said that the accused “virtually waived these rights.”
x x x x x x
When the accused abuses its option to choose his counsel as in this case, he can be deemed to have waived his right to confrontation and cross-examination. The pattern of postponements and changes of counsel in this case is so obvious and patent. Petitioner should have been dissuaded by any of the lawyers, unless they, too, connived in such an amateurish strategy, which wastes the time and resources of our judicial system.]
4. People v. Ramos (1983)- Where affidavit ex partes are not admissible in evidence if the one who executed such is not presented in court for cross-examination:
[We find petitioner’s case meritorious. The lower court erred in admitting as evidence the written sworn affidavit of Malcon Olevere. It can be gleaned from the records that Malcon Olevere executed the written sworn statement declaring that appellant Ramos sold to him the marijuana leaves for P10.00. This piece of evidence is a mere scrap of paper because Malcon Olevere was not produced in court for cross-examination. An affidavit being taken ex-parte is often incomplete and inaccurate. Such kind of evidence is considered hearsay. The constitutional right to meet witnesses face to face[15] in order not to deprive persons of their lives and properties without due process of law is well-protected in our jurisprudence. Thus, in People vs. Toledo, We elucidated:
“Testimony in open court in actual trial cannot be equated with any out-of-court declaration, even when the witness has in fact been confronted already by the defendant. The direct relevance of the trial to the ultimate judgment as to the guilt or innocence of the accused is not present in any other proceeding and is thus a factor that can influence materially the conduct and demeanor of the witness as well as the respective efforts of the counsels of the parties.”
For the court to admit the sworn statement of Malcon Olevere without giving the adverse party the right to cross-examine him would easily facilitate the fabrication of evidence and the perpetration of fraud. The inadmissibility of this sort of evidence is based, not only on the lack of opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the affiant’s statements which may either be omitted or misunderstood by the one writing them.]
Final question, should the informant whose tip was the reason for the accused’s capture be cross-examined? If the informant is not a witness, then no:
“But a police informant who is not presented as a witness does not have to be cross-examined.”
-Fr. Bernas, The 1987 Constitution of the R.P. A Commentary, 2009, p. 531
Let’s move on to compulsory process.
COMPULSORY PROCESS
This right is important because for most people, being a witness is not really a dream nor is it something they look forward to doing. There’s really little to no benefits there. That’s why the accused needs to have compulsory process to secure the attendance of the needed witnesses and the production of material evidence in his behalf. This is in the form of a subpoena.
Failure to obey the order in the subpoena is punishable by contempt of even arrest:
“The accused is entitled under the Constitution to the issuance of subpoena and subpoena duces tecum for the purpose of compelling the attendance of witnesses and the production of evidence that he may need for his defense. Failure to obey the process is punishable as contempt of court; if necessary, the witness may even be arrested so he can give the needed evidence.”
-Justice Isagani Cruz, Constitutional Law, 2007, p. 350
There’s really nothing interesting here for the political law bar exams except maybe the requirements:
“The 1973 and 1987 Constitutions expanded the right to compulsory process which now includes the right to secure the production of evidence in one’s behalf. By analogy, U.S. vs. Ramirez which laid down the requisites for compelling the attendance of witnesses, may be applied to this expanded concept. Thus, the movant must show:
(a) that the evidence is really material;
(b) that he is not guilty of neglect in previously obtaining the production of such evidence;
(c) that the evidence will be available at the time desired; and
(d) that no similar evidence could be obtained.”
–People v. Chua, 2001
And one more thing, this right cannot be invoked on appeal. In other words, failure to invoke it during trial constitutes as waiver:
“The appellants in a criminal case can not be heard for the first time on appeal to complain that they could not secure the presence of witnesses at the trial, when it does not appear that they made any effort so to do before or during the progress of the trial, or that they sought the aid of the court to compel the attendance of their witnesses, or objected to proceeding without them.”
–U.S. v. Garcia, 1908
And now let’s go to the last topic in Sec. 14(2), the trial in absentia.
TRIALS IN ABSENTIA
This is not really a right, but a warning to the accused who chooses not to face the music. The obvious purpose of this allowed form of trial is to prevent unnecessary delays where the accused can just run off to prevent his conviction.
From the provision, there are three conditions for a trial in absentia:
1. The accused has already been arraigned (absolute)
2. He was duly notified of the trial (may be waived if accused escapes)
3. His failure to appear is unjustifiable
Why is an arraignment necessary? Because that is where the accused is informed of the nature and cause of the accusation against him and as we learned before, that right to be informed cannot be waived. Thus, there is no exception to the first condition.
But wait, what if the accused was already arraigned, but then escaped before he can be notified of the trial. Does that mean there can be no trial in absentia? NO. Escaping means he waived his right to be notified:
“The defendant’s escape will be considered a waiver of this right and the inability of the court to notify him of the subsequent hearings will not prevent it from continuing with his trial. He will be deemed to have received due notice. The same fact of his escape will make his failure to appear unjustified because he has, by escaping, placed himself beyond the pale, and protection, of the law.”
–People v. Agbulos, 1993
The accused has a right to be present at the trial. This right is not mentioned in Sec. 14(2) but it is inherent in the right to be heard.
Aside from a trial in absentia, an accused can expressly waive his right to be present at the trial. BUT, despite such waiver, he is required to appear at the trial for identification or UNQUALIFIEDLY admits beforehand that he is the defendant in the case on trial:
“…provided that after arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. The reason for requiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of the proceedings without giving the People’s witnesses the opportunity to identify him in court, he may in his defense say that he was never identified as the person charged in the information and, therefore, is entitled to an acquittal.”
–People v. The Presiding Judge, 1983
The phrase UNQUALIFIEDLY ADMITS THAT HE IS THE PERSON NAMED AS DEFENDANT IN THE CASE ON TRIAL should not be reworded:
“What is stated in Presiding Judge as an exception is when the accused “unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial,” no more no less. In the present case petitioner only admits that he can be identified by the prosecution witnesses in his absence. He did not admit that he is the very person named as defendant in the case on trial. His admission is vague and far from unqualified. He cannot therefore seek the benefit of the exception recognized in Presiding Judge.”
–Carredo v. People, 1990
On that note, the accused’s presence is thus required in:
1. arraignment (so is counsel’s presence)
2. during trial, for identification, UNLESS he unqualifiedly admits in open court that he is the person named as defendant in the case on trial
3. during the promulgation of judgement, UNLESS for a conviction of a light offense, the judgment may be pronounced in the presence of the accused representative or counsel:
“Section 6. Promulgation of judgment. — The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. x x x”
–Rule 120, Sec. 6
So does a trial in absentia mean that the accused forfeits his bail bond? NO. But provided that he does not jump bail of course. After all, it is possible for a trial in absentia not to be synonymous with one jumping bail:
“The provision, a novel feature of the present Constitution, as to when a trial could proceed in the absence of an accused, does not lend itself to a latitudinarian construction. It means what it says and is limited to what is explicitly ordained. It is too plain to be misinterpreted.”
–People v. Hermenegildo, 1978
I guess that’s about it. Finally, we’re done with the rights of the accused… for now. We’ll go through the right to the speedy disposition of cases next time.
The Bartender 