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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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