que exista concordancia entre ellos

In People v. Avancena, 32 O.G. 713, the SC held that (a) the accused has the right to be present during trial; (b) if he is in the custody of the law, presence in all stage is likewise a duty during (i) arraignment, (ii) entering a plea, and (iii) promulgation of judgment. This rule however has been modified.

As things stand, the following are the rules:

1. Generally, the accused has the right to be present at all stages the trial (from arraignment to rendition of judgment).

2. If the accused is in the custody of the law, his presence during the trial is a duty only if the court orders his presence to enable the prosecution witnesses to identify him. (People v. Salas, infra. reiterating Aquino v. Military Commiission, infra. modifying People v. Avancena, infra.) 3. Although the accused is not in the custody of the law (and more so if he is in the custody of the law), his presence is required in the following cases:

a) Arraignment, regardless of the offense; b) Entering a plea, regardless of whether the plea is guilty or not guilty.

c) Promulgation of judgment, except that when the judgment is for a light offense, he may be represented by his counsel or a personal emissary.

a. Arraignment and plea, whether of innocence or of guilt

Rule 116, Sec. 1. Arraignment and plea; how made.--

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(b) The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea shall be made of record, but a failure to enter of record shall not affect the validity of the proceedings.

b. During trial, for identification

People v. Salas, 143 SCRA 163 (1986), supra. HELD: The right to be present at one's trial may now be waived except only at that stage where the prosecution intends to present witnesses who will identify the accused.

c. Promulgation of sentence, unless it is for a light offense, in which case accused may appear by counsel, or a

representative (Rule 120, Sec. 6.) E. Priviledge against self incrimination

Art. III, Sec. 17. No person shall be compelled to be a witness against himself.

Any confession or admission obtained in violation of section 17 hereof shall be inadmissible in evidence against him. [Art. III, Sec. 12 (3)]

1. Scope of privilege: Compulsory Testimonial self-incrimination

The privilege covers only testimonial incrimination obtained compulsorily. It refers therefore to the use of the mental process and the communicative faculties, and not to

a merely physical activity. If the act is physical or mechanical, the accused can be compelled to allow or perform the act, and the result can be used in evidence against him.

Thus the accused can be required to allow a sample of a substance taken from his body (U.S. v. Tan Teng. 23, Phil. 145 (1912)).

F: This defendant was charged with the crime of rape. He was found guilty of the charge. He appeals the decision on the ground that the lower court erred in admitting the testimony of the physicians about having taken a certain substance from the body of the accused while he was confined in jail and regarding the chemical analysis made of the substance to demonstrate the physical condition of the accused with reference to a venereal disease. It was discovered that the rape victim was infected by venereal disease so that the finding of venereal disease in the accused was material to his conviction.

Upon this information the defendant was arrested and taken to the police station and stripped of his clothing and examined. The policeman who examined the defendant swore from the venereal disease known as gonorrhea. The policeman took a portion of the substance emitting from the body of the defendant and turned it over to the Bureau of Science for the purpose of having a scientific analysis made of the same. The result of the examination showed that the defendant was suffering from gonorrhea.

Issue: Whether or not the information that the accused has gonorrhea may be used against him

Ruling: YES. The accused was not compelled to make any admissions or answer any questions, and the mere fact that an object found on his person was examined: seems no more to infringe the rule invoked, than would the introduction in evidence of stolen property taken from the person of a thief. The substance was taken from the body of the defendant without his objection, the examination was made by competent medical authority and the result showed that the defendant was suffering from said disease. As was suggested by Judge Lobingier, had the defendant been found with stolen property upon his person, there certainly could have been no question had the stolen property been taken for the purpose of using the same as evidence against him. So also if the clothing which he wore, by reason of blood stains or otherwise, had furnished evidence of the commission of a crime, there certainly could have been no objection to taking such for the purpose of using the same as proof. No one would think of even suggesting that stolen property and the clothing in the case indicated, taken from the defendant, could not be used against him as evidence, without violating the rule that a person shall not be required to give testimony against himself.

But the prohibition of compelling a man in a criminal court to be a witness against himself, is a prohibition of the use of physical or moral compulsion, to extort communications from him, not an exclusion of his body as evidence, when it may be material. The objection, in principle, would forbid a jury (court) to look at a person and compare his features with a photograph in proof. Moreover we are not considering how far a court would go in

compelling a man to exhibit himself, for when he is exhibited, whether voluntarily or by order, even if the order goes too far, the evidence if material, is competent.

The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled to be a witness against himself, is simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt.

Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said:

If, in other words, it (the rule) created inviolability not only for his [physical control] in whatever form exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles a clear reductio ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . . . but testimonial compulsion. (4 Wigmore, sec. 2263.)

The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral examination of prisoners before trial. or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in the commission of a crime. (People vs. Gardner, 144 N. Y., 119.)

The doctrine contended for by appellant would prohibit courts from looking at the fact of a defendant even, for the purpose of disclosing his identity. Such an application of the prohibition under discussion certainly could not be permitted. Such an inspection of the bodily features by the court or by witnesses, can not violate the privilege granted under the Philippine Bill, because it does not call upon the accused as a witness it does not call upon the defendant for his testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from the accused, is not testimony but his body his body itself. The accused can be ordered to expel the morphine from his mouth (U.S. v. Ong Sio Hong 36 Phil 735, (1917)). U.S. v. Ong Sio Hong 36 Phil 735, (1917)

Counsel for appellant raises the constitutional question that the accused was compelled to be a witness against himself. The contention is that this was the result of forcing the accused to discharge the morphine from his mouth. To force a prohibited drug from the person of an accused is along the same line as requiring him to exhibit himself before the court; or putting in evidence papers and other articles taken from the room of an accused in his absence; or, as in the Tan Teng case, taking a substance from the body of the accused to be used in proving his guilt. It would be a forced construction of the paragraph of the Philippine Bill of Rights in question to hold that any article, substance, or thing taken from a person accused of crime could not be given in evidence. The main purpose of this constitutional provision is to prohibit testimonial compulsion by oral examination in order to extort unwilling confessions from prisoners implicating them in the

commission of a crime. (Harris vs. Coats [1885], 75 Ga., 415.)

The accused can be made to take off her garments and shoes and be photographed. (People v. Otadura, 96 Phil 244 (1950)).

A woman accused of adultery can be compelled to show her body for physical investigation to see if she is pregnant (Villaflor v. Summers, 41 Phil. 62 (1920)). Viewed against present standards, however, it is possible that this method of determining pregnancy would violate due process as being too barbaric.

Villaflor v. Summers, 41 Phil. 62 (1920)

F: The facts are not dispute. In a criminal case pending before the Court of First Instance of the city of Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. The court ordered the defendant Emeteria Villaflor, to submit her body to the examination of one or two competent doctors to determine if she was pregnant or not. The accused refused to obey the order on the ground that such examination of her person was a violation of the constitutional provision relating to self- incrimination. Thereupon she was found in contempt of court and was ordered to be committed to Bilibid Prison until she should permit the medical examination required by the court.

Issue: Whether the compelling of a woman to permit her body to be examined by physicians to determine if she is pregnant, violates that portion of the Philippine Bill of Rights

Ruling: The constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular inspection of the body of the accused is permissible. The proviso is that torture of force shall be avoided. Whether facts fall within or without the rule with its corollary and proviso must, of course, be decided as cases arise.

It is a reasonable presumption that in an examination by reputable and disinterested physicians due care will be taken not to use violence and not to embarass the patient any more than is absolutely necessary. Indeed, no objection to the physical examination being made by the family doctor of the accused or by doctor of the same sex can be seen. The taking of footprint sample to see if it matches the ones found in the scene of the crime is allowed (People v. Salas and People v. Sara).

However, making the accused take dictation to get a specimen of her handwriting is not allowed, for this involves the use of the mental process. [Bermudez v. Castillo, 64 Phil. 485 (1937).]

Bermudez v. Castillo, 64 Phil. 485 (1937)

F: In connection with this administrative case, said respondent filed, six letters which, for purposes of identification, were marked as Exhibits 32, 34, 35, 36 and 37. He contends that said six letters are the complainant's, but the latter denied it while she was testifying as a witness in rebuttal.

Respondent required complainant to copy the letters in her own handwriting in the presence of the investigator. The complainant, refused invoking her right not to incriminate herself. The investigator, upholding the complainant, did not compel her to submit to the trial required, thereby denying the respondent's petition.

Issue: Whether or not the complainant may be forced to make a copy of the letters in her own handwriting

Ruling: No. It would violate her right against self- incrimination.

The constitution provides: "No person shall be compelled to be a witness against himself." It should be noted that before it was attempted to require the complainant to copy the six documents above-stated, she had sworn to tell the truth before the investigator authorized to receive statements under oath, and under said oath she asserted that the documents in question had not been written by her. Were she compelled to write and were it proven by means of what she might write later that said documents had really been written by her, it would be impossible for her to evade prosecution for perjury.

The reason for the privilege appears evident. The purpose thereof is positively to avoid and prohibit thereby the repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction. If such is its purpose, then the evidence must be sought elsewhere; and if it is desired to discover evidence in the person himself, then he must be promised and assured at least absolute immunity by one authorized to do so legally, or he should be asked, one for all, to furnish such evidence voluntarily without any condition. This court is of the opinion that in order that the constitutional provision under consideration may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it.

In view of the foregoing consideration and holding, as it is hereby held, that the complainant is perfectly entitled to the privilege invoked by her, the respondent's petition is denied.

Also requiring the accused to reenact the crime is not allowed, for this also involves the mental process. People v. Olvis, 154 SCRA 525

F: Villarojo, Cademas and Sorela were convicted in the lower court of murder for the death of Bagon. Olvis, the alleged principal by inducement, was acquitted. The three accused were convicted on the basis of the extrajudicial confessions executed by them in the presence of a counsel summoned by the NBI to handle appellants' case, and the

reenactment done by them of the circumstances surrounding the killing.

RULING: The extrajudicial confessions are inadmissible. They were made in the presence of a counsel summoned by the NBI and not of appellants' own choice. He cannot therefore be said to have been acting on behalf of the accused when he lent his presence at the confession proceedings.

But the accused were denied their right to counsel not once but twice when they were forced to re-enact the crime. Forced re-enactments like uncounselled and coerced confessions come within the ban against self-incrimination. This constitutional privilege has been defined as a protection against testimonial compulsion but this has since been extended to any evidence communicative in nature acquired under circumstances of duress. Essentially, the right is meant to avoid and prohibit positively the repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction.

People v. Go, 237 SCRA 73

F: After a buy-bust operation accused were arrested by the police. Upon the presentation of a search warrant, the house of the accused was searched, and several prohibited drugs were seized. They were charged with and convicted of violation of the Dangerous Drugs law. They contended that they had not been shown a search warrant. In concluding that a search warrant had been presented to the accused prior to the search, the trial court relied on a document entitiled “Certificate of Re-conduct of Search”, signed by the accused.

ISSUE: Whether or not such document is admissible in evidence.

RULING: IT CANNOT BE ADMITTED IN ITS ENTIRETY.

The second paragraph of the Certification amounts to an implied admission that shabu, the marked money, and shabu papaphernalia had been found by the police authorities at the residence of the Go spouses and therefore, subject to the control and custody of the accused (the spouses) and necessarily in their possession. To this extent, the “Certification” is a declaration against the interest and tacit admission of the crime charged. The second paragraph of the Certification is a self-incriminatory statment made at a time when the spouses were not assisted by counsel and under circumstances (in the course of or immediately after the search of the residence and seizure of quantities of shabu) which render intelligent waiver of their right against self-incrimination open to serious doubt.

The Court considers that there is nothing to prevent admission of the “Certification” to substantiate the fact that a search warrant issued by a judge had been brought to the attention of the spouses in the course of the raid or buy-bust operation carried out at their residence and that in the course thereof, no force or intimidation had been exercised upon the spouses.

Notwithstanding such, the accused were convicted of the crime charged against them.

2. In what proceedings available

The privilege is available in any proceedings, even outside the court, for they may eventually lead to a criminal prosecution.

In Pascual v. Board of Medical Examiners, 28 SCRA 344 (1969), the SC held that the privilege against self- incrimination extends to administrative proceedings which possess a criminal or penal aspect. In this case, it was held that a doctor who was being investigated by a medical board for alleged malpractice and would lose his license if found guilty, could not be compelled to take the witness stand without his consent.

Pascual v. Board of Medical Examiners, 28 SCRA 344 (1969)

F: Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance of Manila an action for prohibition with prayer for preliminary injunction against the Board of Medical Examiners, now respondent-appellant. It was alleged therein that at the initial hearing of an administrative case for alleged immorality, counsel for complainants announced that he would present as his first witness herein petitioner- appellee, who was the respondent in such malpractice charge. Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on the constitutional right to be exempt from being a witness against himself. Respondent-appellant, the Board of Examiners, took note of such a plea, at the same time stating that at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as such witness, unless in the meantime he could secure a restraining order from a competent authority. A decision was rendered by the lower court on August 2, 1965, finding the claim of petitioner-appellee to be well-founded and prohibiting respondent Board "from compelling the petitioner to act and testify as a witness for the complainant in said investigation without his consent and against himself."

HELD: Petitioner could suffer the revocation of his license as a medical practitioner, for some an even greater