People vs. Magtibay,
G.R. No. 142985, August 6, 2002

Needless to say, it is settled jurisprudence that testimonies of child-victims are given full weight and credit, since when a woman, more so if she is a minor, says she has been raped, she says in effect all that is necessary to show that rape was committed. Youth and immaturity are generally badges of truth and sincerity.

A girl of such age as the victim would not concoct a tale of defloration, allow the examination of her private parts, make public the offense, undergo the trouble and humiliation of a public trial, and endure the ordeal of narrating all its gory details, if she had not in fact been raped. If the accused-appellant had really nothing to do with the crime, it would be against the natural order of events and of human nature, and against the presumption of good faith, that a prosecution witness would falsely accuse him of such a serious crime as rape.

It appears that there was no allegation of the age and minority of the victim in the Information, hence, the trial court was correct in imposing the penalty of reclusion perpetua. The requisite for complete allegations on the particulars of the indictment is based on the right of the accused to be fully informed of the nature of the charges against him so that he may adequately prepare for his defense, pursuant to the due process clause of the Constitution.

Finally, the record shows that when Rachelle’s mother, Gaudiosa Recto, discovered about her ordeal, Rachelle was already eight months pregnant. She eventually gave birth to a baby boy. These facts confirm the commission of rape sometime in September 1997. There was no showing that Rachelle has previously been sexually abused or she had sexual relations with other men during that time. Thus, with respect to the acknowledgment and support of the child born out of rape our recent ruling in People v. Justiniano Glabo states:

Concerning the acknowledgment and support of the offspring of rape, Article 345 of the Revised Penal Code provides for three kinds of civil liability that may be imposed on the offender: a) indemnification, b) acknowledgment of the offspring, unless the law should prevent him from so doing, and c) in every case to support the offspring. With the passage of the Family Code, the classification of acknowledged natural children and natural children by legal fiction was eliminated and they now fall under the specie of illegitimate children. Since parental authority is vested by Article 176 of the Family Code upon the mother and considering that an offender sentenced to reclusion perpetua automatically loses parental authority over his children, no further positive act is required of the parent as the law itself provides for the child’s status. Hence, accused-appellant should only be ordered to indemnify and support the victim’s child. However, the amount and terms of support shall be determined by the trial court after due notice and hearing in accordance with Article 201 of the Family Code.

People vs. Ortillas
G.R. No. 137666.

May 20, 2004

On January 6, 1995, an Information was filed against Marlon Ortillas with the Makati Regional Trial Court, and assigned by raffle to Branch 255 (Las Pinas), then presided over by Judge Florentino M. Alumbres.

Despite the fact that it is stated in the title of the Information that appellant was a minor, detained at the Municipal Jail, Las Pinas, Metro Manila, Presiding Judge Alumbres failed to ascertain and verify the alleged minority of appellant and determine if the provisions of P.D. No. 603, otherwise known as The Child and Youth Welfare Code should be applied to Ortillas.

After arraignment of appellant who pleaded not guilty to the offense with which he is charged, the trial court dispensed with the pre-trial and proceeded to trial on the merits.

On June 8, 1995, the prosecution presented Russel Guiraldo, an alleged eyewitness. After Russel’s direct examination, Atty. Jose G. de Leon, the then counsel for Ortillas moved for postponement as he had a very important appointment to keep which Judge Alumbres granted. Subsequently, Atty. de Leon had to withdraw as counsel because of eye ailment which the trial court approved. The only other hearing that took place after the testimony of Russel on June 8, 1995, was on September 5, 1995 when NBI Medico-Legal Officer Roberto Garcia testified for the prosecution. All in all, the continuation of the hearing was postponed thirteen times from June 8, 1995 until May 8, 1996 when the prosecution finally rested its case with the submission of its documentary evidence. Witness Russel was never presented for cross-examination. The last time he was subpoenaed was for the hearing set on November 6, 1995, but records do not show that he appeared on said date. Although several hearings were scheduled thereafter, Russel was not subpoenaed anymore.

The defense put up by the accused is alibi, a very weak defense because it is easy to fabricate. Just like in the present case, he was still able to tell the authorities that he was in his house when his friend Jose Mesqueriola was killed. If there was truth that he was in his house when Jose Mesqueriola was killed, how come not one occupant in his house came forward to testify for him during the trial. Alibi is considered the weakest defense because it can easily be fabricated and cannot stand in the light of clear, positive and precise evidence of the prosecution establishing the identity of the accused

The charge against the accused is murder, defined and penalized under Article 248 of the Revised Penal Code, as amended by RA 7659. The commission of the crime in the present case was attended by the circumstance of explosion (the use and exploding of the pillbox).In the Certificate of Post-Mortem Examination (Exh. “C”) which Dr. Garcia issued, he placed that the cause of death which is “Traumatic-head injury” was the result of an alleged explosion. On whether there was the circumstance of evident premeditation, the evidence does not clearly show.

In his Brief, appellant points out that the first counsel of appellant, Atty. Jose de Leon, raised the minority of appellant and invoked the provisions of P.D. No. 603 during the initial hearing conducted on June 8, 1995 but Judge Alumbres outrightly denied his request. Atty. de Leon submitted to the ruling and prosecution witness Russel was called to the witness stand. There is merit to the complaint of appellant. Judge Alumbres was remiss of his duty to ascertain the minority of appellant at the onset of the proceedings. The records further disclose that he likewise ignored the letter of Director Milda S. Alvior of the Department of Social Welfare and Development (DSWD) filed with his court on January 31, 1996 informing him that appellant at that time was sixteen years old and alleging that his prolonged stay in the Las Pinas Jail for one year and one month at the time, mixed with hundred criminals affected him physically, intellectually, emotionally and socially.

The Presiding Judge should be sanctioned for his negligence in the performance of his duties with respect to accused minor - but these particular omissions are not sufficient grounds to merit the reversal of the assailed decision.

Certainly, under the foregoing circumstances, Judge Alumbres should have known that the interest of justice required that appellant should have been given the opportunity to cross-examine Russel, as it was not his fault that Russel had not been cross-examined. While a petition for certiorari could have been duly availed of by counsel for appellant to rectify the judge’s grave abuse of discretion, appellant should not be made to suffer for the failure of his counsel to do so; as a layman, he could not have known better as to what must be done under the circumstances. On this matter, the PAO, as de oficio counsel for appellant was remiss of its duty to protect the interest of its client.

Under the peculiar facts and circumstances of the case, it is evident that appellant had not been given the opportunity to cross-examine the lone prosecution witness. In the absence of cross-examination, which is prescribed by statutory norm and jurisprudential precept, the direct examination of the witness should have been expunged from the records, in which case, the trial court would have had no valid basis to deny the demurrer to evidence.

The trial court declared that the issue in this case hinges mainly on credibility of the witnesses, both of the prosecution and the defense.

The prosecution evidence is principally based on the testimony of Russel which is narrated by the trial court, as follows:

. . . He testified that at around 6:00 o’clock in the morning of December 21, 1994, he was with one Jose Mesqueriola, alias Joey, hearing Misa de Gallo at the Bamboo Organ Church in Las Pinas, Metro Manila. After the mass, he and Jose Mesqueriola were walking side by side at the side of the road leading to the direction of Quezon Plaza. Upon reaching a point at the side of the road near Plaza Quezon, and at a distance of about fifteen (15) meters, he saw the accused in front of a gate of a house threw (sic) a pillbox towards their direction and the pillbox exploded on the head of his companion Jose Mesqueriola. He was also hit at a portion of his right face. After the bomb exploded on the head of Jose Mesqueriola, the latter fell down so he helped him by bringing him to the Las Pinas Emergency Hospital which is just nearby. However, the next day, he died. After the accused threw the bomb, he ran away and hid. He came to know of the accused since June 1994 (they being classmates in the Municipal High School, according to the accused). . .

On the other hand, the defense evidence consist only of the testimony of appellant which is aptly narrated by the trial court, as follows:

. . . he testified that on December 21, 1994, at around 6:00 o’clock in the morning, he was in his house at his given address when he heard an explosion. He then ran towards the direction where the explosion was to find out what was it all about. Reaching the place, he found some people around and he saw a person lying prostrate on the street and blooded. He was being assisted and brought to the hospital by his classmate Roselle Guiraldo. After the wounded person was brought to the hospital, he learned from his neighbors that the person lying on the street was a victim of pillbox explosion and he came to know that his name was Joey and his friend. When he ran out of his house, he saw his classmate Jacob Relox was running away from the scene of the explosion, together with companions, and he was also told by Aling Itang, one of his neighbors, that the one who threw the pillbox to Joey was Jacob Relox. He learned also from his neighbor, Aling Itang, that the reason why Jacob Relox threw pillbox at Joey is because on December 20, 1994, Jacob was mauled by Joey Mesqueriola and his companions.

The accused revealed during the trial that he was a working student enrolled at the Las Pinas Municipal High School near Saint Joseph Church in Las Pinas Poblacion. In their school, there were two rival fraternities, the Crimebuster and the Taugamma. He was a member of the Crimebuster together with Roselle Guiraldo and Jose Mesqueriola, his classmates. He left the Crimebuster because he did not like the rules and he joined the Taugamma.

After one (1) week of attending classes at the Las Pinas Municipal High School, he asked for transfer to Las Pinas North Municipal High School because in the Las Pinas Municipal High School, every after classes, his classmate Roselle Guiraldo always waited for him outside (inaabangan) and look (sic) for trouble, and this Roselle Guiraldo has a bad blood or grudge against him. It started when there was stone throwing inside their classroom on the third day of their classes. Roselle Guiraldo was hit and he thought that he (accused) was the one who threw the stone because it came from the direction where he was sitting, not knowing that it was his sitmate (sic) who threw the stone. So that even if he was not the one who threw the pillbox in the early morning of December 21, 1994 which cause the death of Jose Mesqueriola, he was the one pointed to by Roselle Guiraldo because of this grudge against him.

He also testified that Jacob Relox has the motive for killing Jose Mesqueriola because on December 20, 1994, Jacob Relox was mauled by Jose Mesqueriola and the other members of the Crimebuster fraternity. Jacob Relox then was a member of the rival fraternity, the Taugamma.

Considering that appellant was unlawfully deprived of the opportunity to cross-examine prosecution witness Russel, his testimony should have been strictly scrutinized and analyzed with utmost care and any doubt thereon should have been interpreted by the trial court in favor of appellant.

The trial court’s assessment of Russel’s testimony is not only perfunctorily done but its decision is also partly based on the evidence presented by the defense, in stark violation of the well-settled rule that the conviction of appellant must not act on the weakness of the defense but on the strength of the prosecution.

First, it cannot be over-emphasized that there is no direct, positive testimony that Russel actually saw appellant throw the pillbox. He only testified that when he and victim Joey or Jose Miscariola were about to leave the church, Joey was hit with the pillbox that was thrown by the accused, Marlon Ortillas. This statement is a conclusion of fact rather than a declaration of what he actually saw. He did not testify that he actually saw appellant in the act of throwing the pillbox at them. It was only the Fiscal who expressed in his question or who presumed that Russel saw appellant throw the pillbox to the place where they were, which although not objected to by counsel for appellant, should not have been a basis for appellants’ conviction. The purported eyewitness should at least have declared, positively and explicitly, having seen appellant throw the pillbox or an unidentified object. There is not even a testimony that Russel saw appellant holding the pillbox before he threw it.

Second, it is difficult to reconcile the contradiction in the declaration of Russel that it is when they were about to leave the church that Joey was hit with the pillbox thrown by appellant as against his succeeding answer to the next question of the Fiscal as to how far were they from the church when the incident happened and he replied that they were already far from the church because the incident happened in the plaza. Where did the throwing of the pillbox actually take place, when he was about to leave the church or in the plaza? Why the discrepancy? Did he really see the actual throwing of the pillbox? These are questions, the answers to which are not found in the testimony of Russel.

Third, Russel testified that appellant was fifteen meters away from them at the opposite side of the street. To be able to testify that he saw appellant throw a pillbox, Russel should have seen the actual throwing by appellant before the pillbox left the hand of appellant; otherwise, how could Russel say for certain that it was appellant who threw the pillbox? And if Russel did see the actual throwing of an object thrown at their direction, how could he not have at least attempted to avoid the same when the distance between them and appellant is fifteen meters. At the normal speed of a hand thrown object as big as a pillbox, if Russel had actually seen appellant in the act of throwing the pillbox from that distance, instinct would have naturally spurred him, at least, to attempt to dodge the same, even if he would not have succeeded in doing so. As it is, Russel did not testify that upon seeing the pillbox or the object being thrown by appellant at their direction, he tried to evade the same. Neither is there any testimony on the part of Russel that when he saw the pillbox being thrown at him and Joey, there was no time to evade the same.

Fourth, the testimony of Russel that he helped Joey when the latter was hit and fell down, but, at the same time, he saw appellant run and hide in his (appellant’s) house that was six meters away from the place where appellant threw the pillbox, is not credible. It goes beyond human experience for Russel to be able to follow the movements of a culprit right after Joey, his companion, had been hit at the same time that he was helping Joey when the latter fell to the ground, not to mention the fact that he was also hit on the right side of his face. Does it mean that Russel just stood by watching appellant’s movements while the latter threw the pillbox at them and hit him and Joey? The failure of the prosecution to explain this incredible feat is fatal to its cause. No better test has been found to measure the value of a witness testimony than its conformity to the knowledge and common experience of mankind.

Fifth, the motive attributed by the trial court to appellant in throwing a pillbox at Russel is based not on the testimony of prosecution witness Russel but on the testimony of appellant. It is a hornbook doctrine that the prosecution must rely on its own evidence to prove the guilt of appellant beyond reasonable doubt and therefore, the trial court should not depend on the evidence of the defense to support the conviction of appellant. However, considering that the presiding judge had given probative weight or credibility to the testimony of appellant by using his testimony to establish motive on his part to commit the crime, the same testimony may be used likewise to prove that witness Russel had an ill-motive to testify against appellant. And when the evidence admits of two interpretations, that which is favorable to appellant should prevail.

Sixth, while indeed, it is true that flight evidences guilt and a guilty conscience, the escape of appellant from jail pending trial of his case, cannot, under the attendant circumstances, be considered as evidence of his guilt in the commission of the offense, or as basis of his conviction in this case. Appellant had sufficiently explained that he escaped from detention because he got bored in jail, he wanted to see his first new born child and to look for his own father. It is quite surprising why the trial judge in his decision only mentioned and denigrated the explanation of appellant that he wanted to look for his father and not mention at all the other reasons of appellant for bolting out of jail. At any rate, it is not refuted that appellant subsequently surrendered to a member of the Office of the Assistant Regional Director, BJMP, because of fear for his life.

On the other hand, in denying that he threw the pillbox, no other witness was presented by appellant to corroborate his testimony. Nonetheless, the testimony of appellant fully explains why Russel testified against him.Russel was of the belief that appellant was the one who earlier threw a stone at him in the classroom. Unfortunately, the trial court misapprehended the import of his testimony and interpreted it against him to explain the latter’s purported motive in throwing the pillbox at Russel and Joey.

Although denial, like alibi, can be fabricated, it is not always false and without merit, and when coupled with the improbabilities and uncertainties of the prosecution evidence, the defense of alibi deserves merit. Settled is the rule that conviction should rest on the strength of evidence of the prosecution and not on the weakness of the defense. The weakness of the defense does not relieve it of this responsibility.

Thus, the Court is constrained to set aside the conviction of appellant.

Had not Judge Alumbres been compulsorily retired in 2001, he together with the Public Attorney’s Office would have been admonished to be more circumspect in the performance of their respective duties so as to prevent miscarriage of justice.

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Rule on Examination of a Child Witness

Section 1. Applicability of the Rule.- Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses.

Sec. 2. Objectives.- The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth.

.Sec. 3. Construction of the Rule - This Rule shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused.

Sec. 4. Definitions.-

(a) A “child witness” is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.

(b) “Child abuse” means physical, psychological or sexual abuse and criminal neglect as defined in Republic Act No. 7610 and other related laws.

(c) “Facilitator” means a person appointed by the court to pose questions to a child.

(d) “Record regarding a child” or “record” means any photograph, videotape, audiotape, film, handwriting, typewriting, printing, electronic recording, computer data or printout, or other memorialization, including any court document, pleading, or any copy or reproduction of any of the foregoing, that contains the name, description, address, school or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency or individual.

(e) A “guardian ad litem” is a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child.

(f) A “support person” is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him.

(g) “Best interests of the child” means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child.

(h) “Developmental level“” refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities.

(i) “In-depth investigative interview” or “disclosure interview” is an inquiry or proceeding conducted by duly trained members of a multi-disciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed.

Sec. 5. Guardian ad litem.-

(a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem.

(b) The guardian ad litem:

(1) shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates;

.(2) shall make recommendations to the court concerning the welfare of the child;

(3) shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications;

(4) shall marshal and coordinate the delivery of resources and special services to the child;

(5) shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved;

.(6) shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved;

(7) may remain with the child while the child waits to testify;

(8) may interview witnesses; and

(9) may request additional examinations by medical or mental health professionals if there is a compelling need therefor.

(c) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to Sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level.

(d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose.

(e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child.

(f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in Sub-section (b).

Sec. 6. Competency.- Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

(a) Proof of necessity.- A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination.

(b) Burden of proof.- To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence.

(c) Persons allowed at competency examination.- Only the following are allowed to attend a competency examination:

(1) The judge and necessary court personnel;

(2) The counsel for the parties;

(3) The guardian ad litem;

(4) One or more support persons for the child; and

(5) The defendant, unless the court determines that competence can be fully evaluated in his absence.

(d) Conduct of examination.- Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child.

(e) Developmentally appropriate questions.- The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully.

(f) Continuing duty to assess competence.- The court has the duty of continuously assessing the competence of the child throughout his testimony.

Sec. 7. Oath or affirmation.- Before testifying, a child shall take an oath or affirmation to tell the truth.

Sec. 8. Examination of a child witness.- The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally.

The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule.

Sec. 9. Interpreter for child.-

(a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child.

(b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child.

(c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation.

Sec. 10. Facilitator to pose questions to child.-

(a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative.

(b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel.

(c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel.

Sec. 11. Support persons.-

(a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support.

(1) Both support persons shall remain within the view of the child during his testimony.

(2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer.

(3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings.

(4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony.

(b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child.

(c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child.

Sec. 12. Waiting area for child witnesses.- The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by other persons. The waiting area for children should be furnished so as to make a child comfortable.

Sec. 13. Courtroom environment.- To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe.

Nothing in this section or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused.

Accommodations for the child under this section need not be supported by a finding of trauma to the child.

Sec. 14. Testimony during appropriate hours.- The court may order that the testimony of the child should be taken during a time of day when the child is well-rested.

Sec. 15. Recess during testimony.- The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level.

Sec. 16. Testimonial aids.- The court shall permit a child to use dolls, anatomically-correct dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony.

Sec. 17. Emotional security item.- While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll.

Sec. 18. Approaching the witness.- The court may prohibit a counsel from approaching a child if it appears that the child is fearful of or intimidated by the counsel.

Sec. 19. Mode of questioning.- The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth; (2) ensure that questions are stated in a form appropriate to the developmental level of the child; (3) protect children from harassment or undue embarrassment; and (4) avoid waste of time.

The court may allow the child witness to testify in a narrative form.

Sec. 20. Leading questions.- The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice.

Sec. 21. Objections to questions.- Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child.

Sec. 22. Corroboration.- Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases.

Sec. 23. Excluding the public.- When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. In making its order, the court shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties.

Sec. 24. Persons prohibited from entering and leaving courtroom.- The court may order that persons attending the trial shall not enter or leave the courtroom during the testimony of the child.

Sec. 25. Live-link television testimony in criminal cases where the child is a victim or a witness.

(a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television.

Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad litem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order.

The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable.

(b) The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television.

(c) The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom.

(d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child.

(e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors:

(1) The age and level of development of the child;

(2) His physical and mental health, including any mental or physical disability;

(3) Any physical, emotional, or psychological injury experienced by him;

(4) The nature of the alleged abuse;

(5) Any threats against the child;

(6) His relationship with the accused or adverse party;

(7) His reaction to any prior encounters with the accused in court or elsewhere;

(8) His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals;

(9) Specific symptoms of stress exhibited by the child in the days prior to testifying;

(10) Testimony of expert or lay witnesses;

(11) The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and

(12) Other relevant factors, such as court atmosphere and formalities of court procedure.

(f) The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child.

(g) If the court orders the taking of testimony by live-link television:

(1) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child;

(2) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded.

(3) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor.

(4) The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child.

(h) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in Section 31(b).

Sec. 26. Screens, one-way mirrors, and other devices to shield child from accused.-

(a) The prosecutor or the guardian ad litem may apply for an order that the chair of the child or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying. Before the guardian ad litem applies for an order under this Section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of Section 25(a) of this Rule. The court shall issue an order stating the reasons and describing the approved courtroom arrangement.

(b) If the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child.

Sec. 27. Videotaped deposition.-

(a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this Section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of Section 25(a).

(b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.

(c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are:

(1) The prosecutor;

(2) The defense counsel;

(3) The guardian ad litem;

(4) The accused, subject to sub-section (e);

(5) Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child;

(6) One or both of his support persons, the facilitator and interpreter, if any;

(7) The court stenographer; and

(8) Persons necessary to operate the videotape equipment.

(d) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

(e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with Section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused.

(f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record.

(g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors.

(h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in Section 31(b).

(i) If, at the time of trial, the court finds that the child is unable to testify for a reason stated in Section 25(f) of this Rule, or is unavailable for any reason described in Section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor.

(j) After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence.

Sec. 28. Hearsay exception in child abuse cases.- A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

(a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

(b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors:

(1) Whether there is a motive to lie;

(2) The general character of the declarant child;

(3) Whether more than one person heard the statement;

(4) Whether the statement was spontaneous;

(5) The timing of the statement and the relationship between the declarant child and witness;

(6) Cross-examination could not show the lack of knowledge of the declarant child;

(7) The possibility of faulty recollection of the declarant child is remote; and

(8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused.

(c) The child witness shall be considered unavailable under the following situations:

(1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or

(2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

(d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence.

Sec. 29. - Admissibility of videotaped and audiotaped in-depth investigative or disclosure interviews in child abuse cases. The court may admit videotape and audiotape in-depth investigative or disclosure interviews as evidence, under the following conditions:

(a) The child witness is unable to testify in court on grounds and under conditions established under Section 28 (c).

(b) The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred.

(c) The party offering the videotape or audiotape must prove that:

(1) the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices;

(2) the statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion;

(3) the videotape and audiotape machine or device was capable of recording testimony;

(4) the person operating the device was competent to operate it;

(5) the videotape or audiotape is authentic and correct; and

(6) it has been duly preserved.

The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings.

The fact that an investigative interview is not videotaped or audiotaped as required by this Section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse.

Sec. 30. Sexual abuse shield rule.-

(a) Inadmissible evidence.- The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse:

(1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and

(2) Evidence offered to prove the sexual predisposition of the alleged victim.

(b) Exception.- Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible.

A party intending to offer such evidence must:

(1) File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and

(2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion.

Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in Section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent.

Sec. 31. Protection of privacy and safety. -

(a) Confidentiality of records.- Any record regarding a child shall be confidential and kept under seal. Except upon written request and order of the court, a record shall only be released to the following:

(1) Members of the court staff for administrative use;

(2) The prosecuting attorney;

(3) Defense counsel;

(4) The guardian ad litem;

(5) Agents of investigating law enforcement agencies; and

(6) Other persons as determined by the court.

(b) Protective order.- Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows:

(1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem.

(2) No tape, or any portion thereof, shall be divulged by any person mentioned in Sub-section (a) to any other person, except as necessary for the trial.

(3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court.

(4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice:

This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law.

(5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court.

(6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party.

(7) This protective order shall remain in full force and effect until further order of the court.

(c) Additional protective orders.- The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child.

(d) Publication of identity contemptuous.- Whoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall be liable to the contempt power of the court.

(e) Physical safety of child; exclusion of evidence.- A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice.

(f) Destruction of videotapes and audiotapes.- Any videotape or audiotape of a child produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after five (5) years have elapsed from the date of entry of judgment.

(g) Records of youthful offender.- Where a youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever.

Where a youthful offender has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him pursuant to Chapter 3 of P. D. No. 603, all the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone except to determine if a defendant may have his sentence suspended under Article 192 of P. D. No. 603 or if he may be granted probation under the provisions of P. D. No. 968 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose.

“Records” within the meaning of this Sub-section shall include those which may be in the files of the National Bureau of Investigation and with any police department or government agency which may have been involved in the case. (Art. 200, P. D. No. 603)

Sec. 32. Applicability of ordinary rules.- The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character.

Sec. 33. Effectivity.- This Rule shall take effect on December 15, 2000 following its publication in two (2) newspapers of general circulation.

 

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This website is designed and maintained by Atty. Gerry T. Galacio, and is a ministry for (1) all persons affected by or interested in the laws referred to in this site, and (2) pastors and members of Baptist churches in the Philippines. This website is made possible by the prayers and support of individuals, pastors and churches. Your views, comments, and suggestions are most welcome. Please read the Articles of Faith, and legal and privacy statements before availing of the services offered by this website.

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