G.R. NO. 176389 - ANTONIO LEJANO v. PEOPLE OF THE PHILIPPINES
G.R. NO. 176864 - PEOPLE OF THE PHILIPPINES v. HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG
December 14, 2010
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SEPARATE CONCURRING OPINION
The duty of the prosecution is not merely to secure a conviction, but to secure a just conviction.
This highly publicized case became the center of the nation’s attention owing to the public outrage over the atrocious nature of the crime committed in what was then thought to be a relatively secure neighborhood. Worse, it brought inconsolable grief to a husband and father who lost his entire family to senseless violence while he was working overseas. Events soon after the occurrence of the crime on 30 June 1991 would only help fuel civic indignation. Just two days thereafter, or on 2 July 1991, La Salle Engineering student Eldon Maguan was gunned down in cold blood by businessman Rolito Go over a parking skirmish in San Juan. After the lapse of only 11 days, young Maureen Hultman and Roland John Chapman were fatally shot by Claudio Teehankee, Jr. in Dasmarinas Village after a minor scuffle.
The vehement outcry to find and punish those responsible for the Vizconde horror initially led, four months after, to the arrest and eventual filing by the prosecution of Information for two counts of robbery with homicide and one count of robbery with rape against six named and an undetermined number of unnamed persons touted as members of the Akyat Bahay gang. In view of the illegal arrests of the accused and noncompliance with the requirements for conducting custodial investigation, including evidence of torture in extracting confessions from the accused, the trial court in its 1993 Decision pronounced the accused not guilty of the charges. During the same year (1993), another set of suspects (apparently former contractors/workers of the Vizcondes) was identified, only to be released later on due to insufficiency of evidence.
Almost four years after the crime was committed, self-confessed drug user Jessica Alfaro (Alfaro) named young men from wealthy and powerful families as perpetrators of the crime, which she claimed to have witnessed, thereby tantalizing a sympathetic public with ideal visions of justice – of morally depraved offenders finally caught and no longer able to wreck random havoc on the lives of law-abiding citizens; of privileged perpetrators subjected to the rule of law no matter how high and mighty; of bereaved families brought a measure of comfort for the vindication of wasted young lives.
However, there was little objective forensic evidence obtained from the crime scene due to deplorable missteps taken by the investigating police officers. Consequently, Senior Police Officer 1 Gerardo Biong and some John Does were charged as accessories to the crime for “conceal[ing] and destroy[ing] the effects or instruments thereof by failing to preserve the physical evidence and allowing their destruction in order to prevent the discovery of the crime.”
A review of the proceedings during preliminary investigation and trial showed that the prosecution did not fare much better, for it committed acts of prosecutorial misconduct that effectively deprived the accused of their constitutionally guaranteed right to due process.
At the outset, it cannot be overemphasized that the prosecuting officer “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
In the words of Richard Refshauge: “The adversarial system … is rooted in the notion of a contest with winners and losers, yet the prosecutor is ethically forbidden from embracing that notion. The question then, is not what will make the prospect of a conviction more certain, but what is fair and what will contribute to justice.”
Thus, a criminal trial is not about personal redress for the victims, but about determining the guilt and the just punishment of the accused. What is in truth referred to when expanding on the concept of “fair trial” is that the rights of the accused are protected, to the extent necessary to ensure fairness for him. Rights of the victim are not ignored, but they are respected only to the extent that they are consistent with the fairness of the trial for the accused.
In Allado V. Diokno, we also elucidated this delicate balancing of interests in the following manner:
The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is essential for its self-preservation, nay, its very existence. But this does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard the rights of its citizens under the Constitution. Confinement, regardless of duration, is too high a price to pay for reckless and impulsive prosecution. Hence, even if we apply in this case the “multifactor balancing test” which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed and the circumstances attending the incident, still we cannot see probable cause to order the detention of petitioners.
The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former. Thus, relief may be availed of to stop the purported enforcement of criminal law where it is necessary to provide for an orderly administration of justice, to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights.
Let this then be a constant reminder to judges, prosecutors and other government agents tasked with the enforcement of the law that in the performance of their duties they must act with circumspection, lest their thoughtless ways, methods and practices cause a disservice to their office and maim their countrymen they are sworn to serve and protect. We thus caution government agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be oblivious of human rights protected by the fundamental law. While we greatly applaud their determined efforts to weed society of felons, let not their impetuous eagerness violate constitutional precepts which circumscribe the structure of a civilized community.
Indeed, at the core of our criminal justice system is the presumption of innocence of the accused until proven guilty. Lip service to this ideal is not enough, as our people are well acquainted with the painful reality that the rights of the accused to a fair trial were violated with impunity by an unchecked authority in our not so distant history. In response, the rights of the accused were enshrined in no less than the 1987 Constitution, particularly Article III thereof. They are further bolstered by the Rules of Court, related legislation, general rules on evidence, and rules on ethical conduct.
The said rights of the accused come with the corresponding duties, nay, guarantees on the part of the State, the prosecution in particular. The prosecution’s disregard of these standards amounts to prosecutorial misconduct.
Some examples of prosecutorial misconduct would be the intimidation of defense witnesses, the obstruction of defense lawyers’ access to prosecution witnesses, the coercion of confession from the accused, the issuance of prejudicial comments about the accused, the mishandling and/or withholding of evidence, and the failure to preserve evidence.
Issuance of Prejudicial Comments About the Accused
Section 14(2), Article III of the 1987 Constitution emphatically mandates:
Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied.)
The presumption of innocence of the accused is at the center of our criminal justice system – the cornerstone, as it were, of all the other rights accorded to the accused, including the right to due process of law. In pronouncing the presumption of innocence of the accused and their right to due process, the Constitution declares that the risk of letting the guilty walk free would be error on the side of justice. This outcome is infinitely better than imprisoning an innocent person.
Because the accused must be presumed innocent, and because they are entitled to due process of law, it is the duty of the prosecution not to issue prejudicial statements about them while the trial is being conducted. This standard applies with even more force to the trial judge who must at all times not only be impartial, but also appear to be so.
Allegations of issuance of prejudicial comments about the accused in this case pertained to the acts of the trial judge, and not the prosecution. When allegations of instances of the trial judge’s bias were first brought to this Court, it was understandable that the Court would accord the judge the presumption of regularity in the performance of her duties. Her subsequent acts, however, as well as her Decision – taken together – showed a pattern now recognizable in retrospect as bias against the accused, amounting to denial of due process.
In Webb, et al. v. People, the accused assailed the Court of Appeals for denying their Petition for the inhibition from the case of Judge Amelita Tolentino, the presiding judge of Branch 274 of the Regional Trial Court of Paranaque.
Webb’s first Motion for the disqualification of Judge Tolentino, filed prior to their arraignment, was anchored on the ground that the said judge had allegedly told the media that “failure of the accused to surrender following the issuance of the warrant of arrest is an indication of guilt.” This motion was denied by Judge Tolentino. Two days later, Webb filed a second motion to disqualify her. Allegedly, she had further told the media that the accused "should not expect the comforts of home,” pending the resolution of his Motion to be committed to the custody of the Philippine National Police at Camp Ricardo Papa, Bicutan, Paranaque. The judge again denied the Motion. Gerardo Biong also filed a motion to disqualify her on the ground of bias and partiality, but this Motion was also denied.
Thereafter, at the hearing for the accused’s Petitions for bail during which the prosecution presented Jessica Alfaro, Judge Tolentino issued an Order. The judge ruled that Alfaro could not be cross-examined on the contents of the latter’s April 28 Affidavit. The affidavit was held to be inadmissible in evidence, as it was allegedly not executed in the presence of a counsel.
Alfaro was asked about her brother Patrick Alfaro and her uncle Robert Alfaro. She admitted that her brother was a drug addict and had been arrested by the National Bureau of Investigation (NBI) for illegal drug possession. She further claimed that her brother was now in the United States. The prosecution objected to further questions regarding the arrest and departure of Alfaro’s brother on the ground that it was irrelevant, immaterial and impertinent for cross-examination. Despite the defense counsel’s explanation that the questions were for the purpose of establishing Alfaro’s bias and motive for testifying against the accused, the trial court sustained the objection.
Similar objections on the ground of irrelevance, immateriality and impertinence were sustained by the trial court when the defense counsel cross-examined Alfaro on her educational attainment. Prior to the cross-examination, Alfaro was shown her transcript of records indicating her completion of only one academic year, thus earning nine units of college.
Accused then filed a Motion to disqualify Judge Tolentino or inhibit herself from the case due to bias and prejudice, but she denied the Motion.
The accused thus assailed before this Court  the Order of judge Tolentino denying Webb’s motion for hospitalization; and  the Order of Judge Tolentino disallowing the defense to cross-examine Alfaro on the contents of her April 28 affidavit.
Accused later filed with this Court a Supplemental Petition to set aside Judge Tolentino’s Order denying their Motion for inhibition.
This Court resolved to refer the petitions to the Court of Appeals for proper disposition.
In the meantime, the hearing on the accused’s Petitions for bail continued, with petitioner Webb filing a motion for deposition of witnesses residing in the United States, who would testify on his presence in that country on the date of the commission of the crime. This Petition was denied by Judge Tolentino on the ground that petitioner failed to allege that the witnesses did not have the means to go to the place of the trial. Petitioner Webb filed another Supplemental Petition to the Court of Appeals challenging the said Order.
The defense made their Formal Offer of Evidence upon conclusion of the hearings on the Petitions for bail. The prosecution filed its Comment/Objection to the Formal Offer of Evidence. Judge Tolentino ruled on the accused’s formal offer of evidence, admitting only ten  out of the one hundred forty-two  exhibits offered by the defense. Subsequently, the judge denied the accused’s Petitions for bail.
The Court of Appeals rendered its Decision on the various Petitions and Supplemental Petitions, reversing Judge Tolentino’s refusal to admit Alfaro’s April 28 Affidavit. The appellate court, however, denied all the other reliefs prayed for. The accused thus elevated the matter to this Court.
They subsequently filed a Supplemental Petition, alleging, among others, that during the trial on the merits, Judge Tolentino had allowed prosecution witness Atty. Pedro Rivera to testify on the character of the accused, although the defense had not put his character in issue; that the judge disallowed the defense to impeach the credibility of Atty. Rivera by the presentation of an earlier statement executed by him, on the ground that his statement was immaterial; and that, after ruling that the proffer of oral evidence made by defense counsel Atty. Vitaliano Aguirre was improper on cross-examination, Judge Tolentino struck the proffer from the record.
We affirmed the Court of Appeals’ disposition, explaining as follows:
A critical component of due process is a hearing before an impartial and disinterested tribunal [and] every litigant is entitled to nothing less than the cold neutrality of an impartial judge for all the other elements of due process, like notice and hearing, would be meaningless if the ultimate decision would come from a partial and biased judge.[However, t]his right must be weighed with the duty of a judge to decide cases without fear of repression. Hence, to disqualify a judge on the ground of bias and prejudice the movant must prove the same by clear and convincing evidence. …
As a general rule, repeated rulings against a litigant, no matter how erroneous and vigorously and consistently expressed, are not a basis for disqualification of a judge on grounds of bias and prejudice. Extrinsic evidence is required to establish bias, bad faith, malice or corrupt purpose, in addition to the palpable error which may be inferred from the decision or order itself. Although the decision may seem so erroneous as to raise doubts concerning a judge’s integrity, absent extrinsic evidence, the decision itself would be insufficient to establish a case against the judge. The only exception to the rule is when the error is so gross and patent as to produce an ineluctable inference of bad faith or malice.
A perusal of the records will reveal that petitioners failed to adduce any extrinsic evidence to prove that respondent judge was motivated by malice or bad faith in issuing the assailed rulings. Petitioners simply lean on the alleged series of adverse rulings of the respondent judge which they characterized as palpable errors. This is not enough. We note that respondent judge’s rulings resolving the various motions filed by petitioners were all made after considering the arguments raised by all the parties. It is true that the respondent judge erred in some of her rulings such as her rejection of petitioners’ one hundred thirty two pieces of evidence. It appears, however, that respondent judge reversed this erroneous ruling and already admitted these 132 pieces of evidence after finding that "the defects in [their] admissibility have been cured through the introduction of additional evidence during the trial on the merits." This correction diminishes the strength of petitioners’ charge that respondent judge is hopelessly biased against them. …
… There is still another reason why we should observe caution in disqualifying respondent judge. The trial of the petitioners is about to end and to assign a new judge to determine the guilt or innocence of petitioners will not be for the best interest of justice. The records of the case at bar run into volumes. These voluminous records cannot capture in print the complete credibility of witnesses when they testified in court. As the respondent judge observed the demeanor of witnesses while in the witness chair, she is in the best position to calibrate their credibility. The task of evaluating the credibility of witnesses includes interpreting their body language and their meaningful nuances are not expressed in the transcripts of their testimonies.
We hasten to stress that a party aggrieved by erroneous interlocutory rulings in the course of a trial is not without remedy. The range of remedy is provided in our Rules of Court and we need not make an elongated discourse on the subject. But certainly, the remedy for erroneous rulings, absent any extrinsic evidence of malice or bad faith, is not the outright disqualification of the judge. For there is yet to come a judge with the omniscience to issue rulings that are always infallible. The courts will close shop if we disqualify judges who err for we all err.
Mishandling and/or Withholding of Evidence
The rights of the accused to have compulsory process to secure the production of evidence on their behalf is a right enshrined in no less than our Constitution, particularly Article III, Section 14 thereof, to wit:
(1)No person shall be held to answer for a criminal offense without due process of law.
(2)In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. Xxx (Underscoring supplied.)
This right is echoed and further fleshed out in the Rules of Criminal Procedure. Rule 115, Section 1 thereof, provides:
SECTION 1. Rights of accused at the trial.—In all criminal prosecutions, the accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b) To be informed of the nature and cause of the accusation against him.
(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his tail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.
(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against himself.
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.
(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed by law. (Underscoring supplied.)
Section 10, Rule 116 of the Rules of Criminal Procedure, in fact further mandates:
SEC. 10. Production or inspection of material evidence in possession of prosecution.—Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in possession or under the control of the prosecution, police, or other law investigating agencies. (Underscoring supplied.)
Thus, the accused’s right of access to evidence requires the correlative duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress or alter it.
Applying this standard to the present case, it is notable that during preliminary investigation, the NBI presented to the Department of Justice (DOJ) Panel, among others, the Sworn Statement of their principal witness, Alfaro, dated 22 May 1995. Before submitting his Counter-Affidavit, Webb filed with the DOJ Panel a Motion for Production and Examination of Evidence and Documents for the NBI to produce, among others, any other written statements of Alfaro.
The DOJ Panel granted the Motion, and the NBI submitted a mere photocopy of an earlier Sworn Statement of Alfaro dated 28 April 1995. The Statement did not appear to be signed by Alfaro’s counsel of choice, named as Atty. Arturo Mercader, Jr.. in the same document. In this earlier Sworn Statement, Alfaro declared that she had never met Carmela before that fateful night; that she did not know why the accused wanted to enter the Vizconde house, except that they were after Carmela; that the accused entered the premises by jumping over the fence; that she did not know how the accused were able to enter the house, as she was about ten (10) meters away from the kitchen door; that she did not know who opened that door for the accused, but hinted that one of the maids must have done it since Estrellita and Carmela were tied; and that she had no idea what transpired in the house until they left the area.
This Statement contradicted salient points in Alfaro’s 22 May 1995 Sworn Statement, which was the basis of the NBI’s complaint. In her 22 May 1995 Sworn Statement, Alfaro claimed to have known Carmela since February 1991; that the group decided to rape Carmela when Alfaro informed Webb that Carmela had dropped off a man who appeared to be her boyfriend; that Carmela left open the gate through which they entered the premises freely; that Alfaro led the group in entering the kitchen door; that she witnessed the rape of Carmela by Webb and also saw the bodies of Estrellita and Jennifer piled up on the bed.
The NBI explained that they produced a mere photocopy of the 28 April 1995 Sworn Statement, because the original was lost. When the DOJ Panel refused to issue a subpoena duces tecum to Atty. Mercader, the accused filed a case with the Regional Trial Court of Makati, Branch 63, to obtain the original of the first Sworn Statement. Atty. Mercader then appeared and produced before the trial court the original Sworn Statement of Alfaro dated 28 April 1995, which also contained his signature. Webb retained a certified true copy of the first Sworn Statement (certified by Assistant State Prosecutor Jovencito Zuno), while the duplicate original copy thereof was submitted to the DOJ Panel.
The DOJ Panel still found probable cause to charge the accused and on 10 August 1995, an Information for Rape with Homicide was filed with the Regional Trial Court of Paranaque against Webb, et al. It was raffled to Branch 274, presided by Judge Amelita Tolentino, who thereupon issued warrants for their arrest.
Webb et al. came to this Court to assail the DOJ Panel’s finding and the trial court’s issuance of warrants for their arrest. We upheld the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor:
Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial.
This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect’s life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in Section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . . ."
In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan which laid down the proposition that a prosecutor’s intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor’s duty to disclose to the defense exculpatory evidence in its possession. The rationale is well put by Justice Brennan in Brady — "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. (Citations omitted.)
Nevertheless, we ruled that with the production of the first Sworn Statement, “(p)etitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion.”
It appeared, however, that the prosecution would continue to suppress Alfaro’s first Sworn Statement. When bail hearings commenced on 9 October 1995, the prosecution started with a presentation of the testimony of Alfaro. On 16 October 1995, Alfaro was allowed by the trial court to testify on the circumstances surrounding the execution of the two Sworn Statements, notwithstanding that said statements were not presented for proper identification and marking. On cross-examination, Alfaro admitted that in the first Sworn Statement were answers that were not hers, but were only supplied by the NBI agents then present during the statement-taking. For instance, she stated that the answer to question number 8 is not true, because she only finished second year and was not actually a college graduate.
On the third day of Alfaro’s cross-examination, the prosecution objected to questions referring to the first Sworn Statement on the ground that it was made without the assistance of counsel. The trial court sustained the objection. The accused’s counsel orally sought reconsideration, but this was denied. When counsel moved for reconsideration, the trial court denied the motion “with finality.” The accused’s counsel then showed the trial court their copy of the first Sworn Statement containing Atty. Mercader’s signature and certified as a true copy by Asst. Prosecutor Zuno. In turn, Assitant Prosecutor Atty. Zuno, who had the duplicate original thereof, failed or refused to produce the statement despite repeated requests from the accused Webb. (It was produced only on 24 October 1995.) Alfaro’s cross-examination continued, with no question pertaining to the first Sworn Statement allowed.
On 8 November 1995, the trial court issued its Order dated 30 October 1995 in open court. The Court rejected the admissibility of the first Sworn Statement and barred its use for the purpose of impeaching Alfaro’s credibility or for refuting her subsequent statements. All previous questions and answers connected with the said Sworn Statement were also ordered expunged from the records. The trial court reasoned that the said Sworn Statement was an “illegally obtained evidence, and therefore, cannot be used either directly or indirectly against Alfaro.” Citing Section 12, Article III of the Constitution, the trial court concluded that “Alfaro could not be cross-examined by the defense on the contents of the said affidavit in order to discredit her statement dated May 22, 1995 and her testimony in open court.”
This Order led accused Webb et al. to seek Judge Tolentino’s inhibition and to incorporate the above instance as part of their proof of the trial judge’s bias. The Court of Appeals denied the Petition, and we affirmed the denial in the manner laid out in the preceding discussion.
Failure to Preserve Evidence
As discussed in the preceding section, the accused’s right to access to evidence necessitates in the correlative duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress or alter it. When the prosecution is called upon not to suppress or alter evidence in its possession that may benefit the accused, it is also necessarily obliged to preserve the said evidence. To hold otherwise would be to render illusory the existence of such right.
The advent of DNA technology prompted this Court’s promulgation of the New Rules for DNA Evidence. As DNA evidence provides objective proof of identification and may be obtained from evidence left in the scene of the crime or in the victim’s person, it also gives new meaning to the above duty of the prosecution.
The prosecution did not fare well when measured against this standard.
Alfaro testified that the group had earlier agreed that Webb would be the first to rape Carmela. When Alfaro said she saw Webb pumping Carmela, while two bloodied bodies were on top of the bed, the former was so shocked that she “stepped back and turned around to go outside.” On her way out, she met Ventura near the door. He said, “Prepare escape.” Things had apparently gone awry, so they left the place. The NBI proclaimed that the semen samples they had collected from Carmela were preserved in slides and remained intact. Thus, in order for the prosecution’s theory to be consistent, pursuant to the quantum required in criminal cases, the DNA evidence in the slides must positively match that from accused Webb.
Based on the foregoing circumstances, the defense counsel accordingly filed a Motion to Direct NBI to Submit Semen Specimen to DNA Analysis during the course of the trial. Several exchanges of pleadings on the matter were filed before the trial court, and at no time was the timeliness of the filing of the Motion at issue. It could not have been, considering that the Motion was timely filed during the course of the trial. While the Motion was filed six years after the crime was committed, the trial of the accused herein did not start until more than four years after the commission of the crime.
The trial court denied the Motion on 25 November 1997, holding that since more than six (6) years had lapsed since the commission of the crime, there was no assurance that the semen specimen remained uncontaminated. Also, the trial court held that Webb was not able to show that the proper procedure for the extraction and preservation of the semen sample had been complied with. Finally, the trial court held that a DNA test would only lead to confusion of the issues.
However, as correctly held by Justice Lucenito Tagle in his Dissenting Opinion, the trial judge’s objections to the DNA testing were based on mere conjectures that ran against the presumption of regularity in the performance of official duty.
Meanwhile, the idea that a negative DNA test result would not have necessarily exculpated Webb, because previous sexual congress by Carmela with another man prior to the crime could not be discounted, would unrealistically raise the bar of evidence – and for the wrong party, i.e., for the part of the defense, instead of for the prosecution. If a negative DNA test result could not be considered as providing certainty that Webb did not commit the crime, would it not have at least cast a reasonable doubt that he committed it?
Moreover, the argument against the relevance of the semen sample – that the presence of semen was not necessary to prove that rape was committed – is not in point. What the defense was after when it sought DNA testing was neither to prove nor to disprove the commission of rape, but to pinpoint the identity of the assailant. In this case, semen with spermatozoa was in fact obtained, and it did possess exculpatory potential that might be beneficial to the accused. In Tijing v. Court of Appeals, we held that “courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.” Hence, it is the constitutional duty of the trial judge to afford all possible means to both the NBI and the counsel for accused, in order that such evidence may be scrutinized in open court. The Court held in People v. Yatar:
DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case.
DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used. Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, o saliva which can be left on the victim’s body or at the crime scene. Hair and fiber from clothing, carpets, bedding or furniture could also be transferred to the victim’s body during the assault. Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime.
Thus, when the present case reached this Court and a similar Motion was filed, we resolved to grant petitioner’s motion to allow DNA testing of the semen sample collected from the victim in order to compare it with Webb’s DNA. Unfortunately, said semen sample appears to have been lost by the NBI, which had custody thereof.
Does the prosecution’s loss of this potentially exculpatory evidence result in a fundamentally unfair trial of the accused that entitles him to a judgment of acquittal?
In resolving this question in the negative, the Dissent cites Youngblood v. Arizona, a United States Supreme Court Decision, which held that the prosecution’s failure to keep intact a piece of potentially exculpatory evidence does not result in a due process violation, unless the accused is able to show that the prosecution acted in bad faith.
However, reliance on Youngblood is ill-advised.
First, Youngblood was promulgated more than two decades ago, in 1988, when DNA testing was still in its infancy. Since then, the technology has grown by leaps and bounds. In the United States, there are now only eight (8) states that have not adopted statutes allowing post-conviction DNA testing, with some requiring the correlative duty to preserve DNA evidence. So far, 261 convicts in the United States have been exonerated as a result of post-conviction DNA testing.
Second, Youngblood was not a product of a unanimous Decision. The majority opinion in Youngblood was penned by Justice Rehnquist and concurred in by Justices White, O’Connor, Scalia and Kennedy, with Justice Stevens concurring with the result and writing a Separate Opinion. Justice Blackmun wrote a strong Dissent, which was joined in by Justices Brennan and Marshall.
A critique of the Youngblood decision points out that there are two competing due process interests therein. On the one hand is adjudicative fairness, which “seeks to ensure that the accused receives meaningful protection in court, in other words, reliable fact finding and a fair trial. … [and which] manifests itself in an assessment of the materiality of evidence and prejudice to the accused …[as] paramount in determining whether a due process violation has occurred.” On the other hand is instrumentalism, which seeks “to impose restraints on the state. …[by] punishing the state for police and prosecutorial misconduct. … to deter future misconduct and to create a prophylactic effect. In measuring the misconduct, one examines the subjective intent of the officer and whether the officer acted in good faith or bad faith. Under this approach, the focus is on the state, not the individual. Moreover, the focus on the state and on deterring official misconduct invites an examination of the costs of providing additional process.”
The majority opinion in Youngblood focused on the state of mind of the police officer rather than on materiality and fairness to the accused. However, in his Separate Opinion wherein he registered his reservation to the bad faith standard being laid out by the majority, Justice Stevens recognized that "there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair."
While the earlier case Brady v. Maryland held that due process violation could be committed even without bad faith, the majority distinguished Youngblood from Brady by holding that the evidence in Brady was clearly favorable to the accused, while that in Youngblood was only potentially exculpatory.
Justice Blackmun opined, though, that it was impossible for the accused to prove that a particular piece of evidence was exculpatory when, precisely, it was no longer in existence. Justice Blackmun also disapproved of the bad-faith standard, because “(a)part from the inherent difficulty a defendant would have in obtaining evidence to show a lack of good faith, the line between ‘good faith’ and ‘bad faith’ is anything but bright, and the majority’s formulation may well create more questions than it answers.”
Justice Blackmun proposed the following alternative to the bad-faith standard:
Rather than allow a State’s ineptitude to saddle a defendant with an impossible burden, a court should focus on the type of evidence, the possibility it might prove exculpatory, and the existence of other evidence going to the same point of contention in determining whether the failure to preserve the evidence in question violated due process. To put it succinctly, where no comparable evidence is likely to be available to the defendant, police must preserve physical evidence of a type that they reasonably should know has the potential, if tested, to reveal immutable characteristics of the criminal, and hence to exculpate a defendant charged with the crime.
Justice Blackmun then gave his opinion on how to balance the defendant’s rights and the duty imposed upon the law enforcement to preserve evidence:
Due process must also take into account the burdens that the preservation of evidence places on the police. Law enforcement officers must be provided the option, as is implicit in Trombetta, of performing the proper tests on physical evidence and then discarding it. Once a suspect has been arrested, the police, after a reasonable time, may inform defense counsel of plans to discard the evidence. When the defense has been informed of the existence of the evidence, after a reasonable time, the burden of preservation may shift to the defense. There should also be flexibility to deal with evidence that is unusually dangerous or difficult to store.
Third, it is not amiss to note that in the year 2000, the injustice of the Youngblood decision was brought into sharp relief when more sophisticated DNA technology was used on the degraded evidence. The technology yielded a DNA profile that (1) exonerated Larry Youngblood of the crime charged (child molestation, sexual assault and kidnapping) and (2) enabled the police to find the real offender. Excerpts from the website of The Innocence Project, an organization advocating the use of DNA evidence, are as follows:
Larry Youngblood was convicted in 1985 of child molestation, sexual assault, and kidnapping. He was sentenced to ten years and six months in prison. In October 1983, a ten year old boy was abducted from a carnival in Pima County, Arizona, and molested and sodomized repeatedly for over an hour by a middle aged man. The victim was taken to a hospital, where the staff collected semen samples from his rectum as well as the clothing he was wearing at the time of the assault.
Based on the boy’s description of the assailant as a man with one disfigured eye, Youngblood was charged with the crime. He maintained his innocence at trial, but the jury convicted him, based largely on the eyewitness identification of the victim. No serological tests were conducted before trial, as the police improperly stored the evidence and it had degraded. Expert witnesses at trial stated that, had the evidence been stored correctly, test results might have demonstrated conclusively Youngblood’s innocence.
Larry Youngblood appealed his conviction, claiming the destruction of potentially exculpatory evidence violated his due process rights, and the Arizona Court of Appeals set aside his conviction. He was released from prison, three years into his sentence, but in 1988, the Supreme Court reversed the lower court’s ruling, and his conviction was reinstated (Arizona v. Youngblood, 488 U.S. 51). Youngblood remained free as the case made its way through the Arizona appellate court system a second time, but returned to prison in 1993, when the Arizona Supreme Court reinstated his conviction.
In 1998, Youngblood was released on parole, but was sent back to prison in 1999 for failing to register his new address, as required by Arizona sex offender laws. In 2000, upon request from his attorneys, the police department tested the degraded evidence using new, sophisticated DNA technology. Those results exonerated Youngblood, and he was released from prison in August 2000. The district attorney’s office dismissed the charges against Larry Youngblood that year.
Shortly thereafter, the DNA profile from the evidence was entered into the national convicted offender databases. In early 2001, officials got a hit, matching the profile of Walter Cruise, who is blind in one eye and currently serving time in Texas on unrelated charges. In August 2002, Cruise was convicted of the crime and sentenced to twenty-four years in prison.
In view of all the foregoing salient objections to Youngblood, it should not be adopted in this jurisdiction.
While it is a laudable objective to inquire into the state of mind of the prosecution and punish it when it has committed prosecutorial misconduct, there are times when, undoubtedly, whether through malice or plain ineptitude, its act or omission results in plain injustice to the accused.
In our various decisions relating to interlucotory orders and incidents pertaining to this case, this court’s adherence to instrumentalism has led to our finding in each instance that there was no due process violation committed against petitioner, because bad faith was not shown by the prosecution or the trial judge.
However, since “the task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who appear before or are brought to the bar of justice are afforded a fair opportunity to present their side,” the measure of whether the accused herein has been deprived of due process of law should not be limited to the state of mind of the prosecution, but should include fundamental principles of fair play. Hence, as we write finis to this case, it is time we evaluate the total picture that the prosecution’s acts or omissions have wrought upon the accused’s rights with each seemingly innocuous stroke, whatever its intention may have been.
The various violations of the accused’s rights have resulted in his failure to secure a just trial. As such, the judgment of conviction cannot stand.
MARIA LOURDES P. A. SERENO
 Go v. Court of Appeals, G.R. No. 101837, 11 February 1992, 206 SCRA 138.
 People v. Teehankee, Jr., G.R. Nos. 111206-08, 6 October 1995, 319 Phil.128 (1995).
 Decision dated 13 September 1993 issued by the Regional Trial Court of Makati, Branch 63 in Criminal Case Nos. 91-7135 to 37.
 Lejano v. People, G.R. Nos. 176389 and 176864, 20 April 2010.
 Information, Regional Trial Court rollo, vol. 1, p. 34.
 Tan v. Gallardo, G.R. Nos. L-41213-14 October 5, 1976, 73 SCRA 306, citing Suarez v. Platon, et al., 69 Phil. 556 (1940).
 The Prosecution Role in Upholding the Right to a Fair Trial and Responding to Victims/ Witnesses, The Prosecutor Papers, November 2005 at 10.
 R v. Boucher, (1954) S.C.R. 16.
 Stuart, Don, CHARTER JUSTICE IN CANADIAN CRIMINAL LAW, 2001.p.7.
 G.R. No. 113630, 5 May 1994, 232 SCRA 192.
 Cramm, Paul, D. The Perils of Prosecutorial Misconduct, http://www.24-7pressrelease.com/press-release/theperils-of-prosecutorial-misconduct-102380.php accessed on 10 December 2010.
 Montemayor v. Bermejo, Jr., A.M. No. MTJ-04-1535, 12 March 2004, 425 SCRA 403.
 G.R. No.127262, 24 July 1997, 276 SCRA 243, 342 Phil. 206.
 TSN, 19 October 1995, pp. 23-24.
 Id., pp. 25-33.
 Id., pp. 33-45.
 Order, Regional Trial Court rollo, vol. 1, pp. 852-860.
 Id. at pp. 7-8.
 A.M. No. 06-11-5-SC effective 15 October 2007.
 G.R. No. 125901, 8 March 2001, 406 Phil. 449.
 G.R. No. 150224, 19 May 2004, 428 SCRA 504.
 Resolution dated 20 April 2010.
 488 U.S. 51 (1988).
Forensic DNA typing was not developed until 1985, when Dr. Alec Jeffreys, an English scientist, used the technique to exonerate one suspect in the sexual assault and murder of two young girls and to inculpate another. Three years later, in 1988, the same year Youngblood was decided, the FBI began testing DNA. That same year, for the first time, a state appellate court upheld the admission of DNA evidence in a criminal case. The crime at issue in Youngblood occurred well before the advent of DNA testing, and the Supreme Court decided the case when DNA testing was in its infancy, still embroiled in litigation over its reliability and admissibility.
In the two decades since it was first used, forensic DNA typing has continued to progress. At this point, scientists have developed three generations of tests. The current, dominant generation of technology is the polymerase chain reaction (PCR). This approach analyzes DNA taken from the nucleus of a cell. PCR allows the DNA in a biological sample to be replicated; only a minute amount of DNA is needed and the sample from which it comes can be highly degraded. Only a few cells are required for reliable results. Usable DNA can be recovered from a myriad of items, including computer keyboards, hats, bandannas, eyeglasses, facial tissue, cotton swabs, dirty laundry, toothpicks, chewing gum, cigarette butts, envelope seals, the mouths of bottles, the rims of glasses, or urine stains.
PCR is usually followed by short tandem repeat (STR) testing, which compares thirteen specific regions, or loci, found on nuclear DNA. The odds that two unrelated individuals will share the same thirteen-loci DNA profile can be as high as one in a billion or more. Thus, PCR-STR analysis is both highly sensitive and discriminating. It is sensitive in that small amounts of biological material can be tested. It is discriminating in that the results of a thirteen-loci comparison generate unique DNA profiles that can establish guilt or innocence to a practical certainty in certain types of cases.
Yet another powerful forensic DNA tool has emerged: mitochondrial DNA (mtDNA) testing. Unlike STR analysis, this technique examines the DNA contained in the mitochondria of a cell, not its nucleus. This is important because some biological material, including hair shafts, bones, and teeth, lack nuclei, but possess mitochondria. In some cases, especially those involving decomposed tissue, only teeth or bones may remain. Mitochondrial DNA testing allows for the study and comparison of DNA in such material. One drawback to mtDNA is that it is not as discriminating as STR. Mitochondrial DNA is passed maternally; consequently, siblings and maternal relatives have the same mtDNA, and the test cannot distinguish among them. Nonetheless, mtDNA provides a powerful supplement to STR and may allow for analysis when none is otherwise available. Among other things, mtDNA has identified one of the unknown soldiers in the Tomb of the Unknown Soldier in Arlington National Cemetery, the remains of Czar Nicholas II and his family, and the likely offspring of Thomas Jefferson and Sally Heming.
Since 1985, the field of forensic DNA typing has continued to progress. Emerging Y-chromosome analysis focuses on variations in male genetic material; it may prove to be helpful in sexual assault cases involving multiple male perpetrators. Hand-held or portable devices with "labs-on-a-chip" may be developed that allow for rapid DNA testing at a crime scene. Robotic systems are already being used to help process DNA samples. Similarly, computer software compares and interprets STR data. In short, forensic DNA typing will continue to become increasingly automated, faster, cheaper, and more accurate. This, in turn, ought to affect the due process calculus when the state loses or destroys potentially exculpatory evidence. The context in which such problems arise today is entirely different than when Youngblood was decided.” (Citations omitted.)
 98 J. Crim. L. & Criminology 329
 The Innocence Project. <http:// accessed on 12 December 2010.
 86 Wash. U. L. Rev. 241.
 373 U.S. 83 (1963).
 The Court in Brady held: "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
 The Innocence Project – Know the Cases: Browse Profiles: Larry Youngblood, <http://www.innocenceproject.org/Content/Larry_Youngblood.php> accessed on 12/13/2010
 Tan v. People, G.R. No. 173637, 21 April 2009, 586 SCRA 139.