By By Atty. Romulo P. Atencia
Accused as state witness
posted 15-Sep-2015  ·  
4,655 views  ·   0 comments  ·  

The presumption of innocence which throws its mantle about the accused at every stage of the proceeding imposes upon the prosecution the duty of proving beyond a reasonable doubt every essential allegation of the information. It is true that defendants may be convicted upon circumstantial proof, but when circumstances are relied upon for the purpose of conviction, the circumstances must be as clear and as conclusive as direct and positive testimony. They must be sufficient to overcome the presumption of innocence and show, beyond peradventure of doubt, that the defendants, and no others, committed the crime charged. Experience, under English and American procedural methods, has shown that without the aid of informers testifying against their co-participants in crime, many guilty parties would escape, where the facts which would sustain a conviction are known only to the guilty persons themselves.

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When there is no direct evidence available for the proper prosecution of the offense committed, except the testimony of the accused, it is very hard to convict. An accused cannot be made a hostile witness for the prosecution, for to do so would compel him to be a witness against himself. Of course, where there are several persons accused, one of them may testify against a co-defendant where he has agreed to do so, with full knowledge of his right and the consequences of his acts. In other cases, however, where none of several accused can be convinced to testify against his co-accused, experience and jurisprudence has devised a system to entice one of them to tattle on his cohorts. He may be discharged as a witness with a promise of immunity from his own guilt. There is a difference between testifying as state witness and testifying as a co-accused. In the first, the proposed state witness has to qualify as a witness for the state, after which he is discharged as an accused and exempted from prosecution. In the second, the witness remains an accused and can be made liable should he be found guilty of the criminal offense.

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The dismissal of complaints or informations as to one of several persons charged with the commission of an offense in order that he may be used as a witness against his co-accused, and the making of agreements whereby guilty persons are sometimes assured of exemption from criminal prosecution on condition that they testify against their co-participants in the commission of a crime is one solution to the problem, a system borrowed, in large part, from English and American precedents. The requirements for the discharge and utilization of an accused as a state witness are enumerated in Rule 119, Section 17 of the Revised Rules of Criminal Procedure, viz: a) There is absolute necessity for the testimony of the accused whose discharge is requested; b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the accused; c) The testimony of said accused can be substantially corroborated in its material points; d) Said accused does not appear to be the most guilty; and e) Said accused has not at any time been convicted of any offense involving moral turpitude.

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Absolute necessity exists for the testimony of an accused sought to be discharged when he or she alone has knowledge of the crime. In more concrete terms, necessity is not there when the testimony would simply corroborate or otherwise strengthen the prosecution’s evidence. This means that, unless the accused sought to be discharged was allowed to testify for the government, there would be no other direct evidence available for the proper prosecution of the offense charged, particularly on the role of his co-accused in the commission of the crime. It must be emphasized at this point that to resolve a motion to discharge, the Rules only require that that the testimony of the accused sought to be discharged be substantially corroborated in its material points, not on all points.


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By jurisprudence, the requirement that the accused sought to be discharged not appear to be the “most guilty” refers to the highest degree of culpability in terms of participation in the commission of the offense and does not necessarily mean the severity of the penalty imposed. While all the accused may be given the same penalty by reason of conspiracy, yet one may be considered to have lesser or the least guilt taking into account his degree of participation in the commission of the offense. What the rule avoids is the possibility that the most guilty would be set free while his co-accused who are less guilty in terms of participation would be penalized. The Supreme Court has occasion to rule that a principal by inducement (i.e., the “mastermind”) is not automatically the most guilty in a conspiracy.

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Section 18 of the same Rule 119 further provides that the Order discharging the accused as state witness shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge. The reason is that when the discharged accused testifies falsely, not in accordance with his sworn statement earlier submitted, the State would be left without redress, although the witness had violated the purpose and spirit of the discharge. To grant immunity to any man, based upon a lie, would not be right. Simple common sense (which really is not very common) and man’s innate sense of justice dictates that a legal right cannot be based upon fraud. Thus, the witness who claims immunity on account of self-incriminatory testimony which he had been compelled to give must act in good faith with the State, and must make truthful replies to the questions which are propounded to him, and which he had been compelled to answer, and that any material concealment or suppression of the truth on his part will deprive him of the immunity provided by the law; and the witness must testify to something which, if true, would tend to criminate him. This immunity is only granted to those who earn it by testifying in good faith. It has been held that any other interpretation of the rule would be an insult to one’s intelligence, an outrage on law, and a prostitution of justice.

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