THE LAW ON EYEWITNESS TESTIMONY
By
Senator Miriam Defensor Santiago
(Excerpts from her interpellation of Ruby Tuason at the Senate hearing on 13 February 2014.)

Absence of Senators

Out of 24 senators, why are only 9 senators present? Who or what has convinced these senators to stay away? What are they afraid of?

Positive vs. Negative Assertions

Ms. Tuason's affidavit is a positive assertion. The denials respectively of Senator Enrile and Senator Estrada are negative assertions. In law, the positive has more weight than a negative assertion. This rule is reiterated in the following latest decisions of the Supreme Court:

• "Denial is an inherently weak defense and has always been viewed upon with disfavour by the courts due to the ease with which it can be concocted, as in this case. Verily, mere denial, unsubstantiated by clear and convincing evidence is negative self-serving evidence which cannot be given greater evidentiary weight than the testimony of the complaining witness who testified on affirmative matters." People v. Monticalvo, 689 SCRA 715 (2013).

• "Both denial and alibi are inherently weak defenses which cannot prevail over the positive and credible testimonies of the prosecution witnesses that appellants committed the crime. Unless substantiated by clear and convincing proofs, such defense is negative, self-serving, and undeserving of any weight in law." People v. Nelmida, 680 SCRA 386 (2012).

• "Under the evidentiary rules, a positive assertion is generally entitled to more weight than a plain denial." Career Phil. v. Serna, 686 SCRA 676 (2012).

• "Denial, like alibi, as an exonerating justification, is inherently weak and if uncorroborated, regresses to blatant impotence." People v. Barde, 631 SCRA 187 (2010).

Eyewitness v. Circumstantial Evidence

Eyewitness is stronger than circumstantial evidence. There are two kinds of evidence:

1. Direct or eyewitness evidence - Evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.

2. Indirect or circumstantial evidence - Evidence based on inference and not on personal knowledge or observation.

The Tuason affidavit states that she personally delivered money to Senator Jinggoy Estrada at his house in Greenhills, San Juan or in his office in the Senate. The Tuason affidavit also said in answer to question No. 41: "I personally received the share of Senator Juan Ponce Enrile from Janet Napoles and personally gave it to Atty. Gigi Reyes, who in turn picked it up personally in my house or in a restaurant where we both agreed to meet."

Enrile Presence Sufficient to Prove Conspiracy

To question No. 44, Tuason said: "Atty. Gigi Reyes would pick up the money alone. I remember occasions that Senator Juan Ponce Enrile would join us, when we are almost done, for a cup of coffee." In answer to question No. 45, Tuason said: "He did not stay long. After coffee, he would leave and sometimes he would come to pick-up Atty. Gigi Reyes."

The mere presence of Senator Enrile, even if he did not say anything, establishes that he was a conspirator in the scam.

Civil Code, Art. 1371: "In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered."

Penal Code, Art. 8: "A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it."

"To hold an accused guilty as a co-principal by reason of conspiracy, it must be shown that he had performed an overt act in pursuance or furtherance of the conspiracy. Such an act may consist of active participation in the actual commission of the crime itself, or of moral assistance to his co-conspirators by being present at the time of the commission of the crime or by asserting moral ascendancy over the other co-conspirators to execute or implement the conspiracy." (Petso v. People, 262 SCRA 518 (1996).

"Well-settled is the rule that it is not indispensable that a co-conspirator should take a direct hand in the commission of a felony." (People v. Camaddo, 217 SCRA 162 (1993).

Status of State Witness

There are two ways by which a person can become a state witness:

1. By discharge from the criminal case under the Rules of Court, Rule 119, Sec. 17.

2. By approval of your application for admission into the Witness Protection Program of the Department of Justice under R.A. No. 6981.

To be a state witness under the Rules of Court, you have to meet five requirements:

1. Absolute necessity for your testimony;

2. No other direct evidence;

3. Your testimony can be substantially corroborated in its material points;

4. As one of the accused, you do not appear to be the most guilty; and

5. As an accused, you have not at any time been convicted of any offense involving moral turpitude.

Under the Witness Protection Program, I presume that you have taken the following steps:

1. You applied for and were granted certificate of admission to WPP by the DOJ.

2. You presented the certificate to the Ombudsman. Under existing jurisprudence, the Ombudsman as prosecutor will give the DOJ certificate full faith and credit. Further, according to jurisprudence, the determination of who should be a state witness is basically an executive, not a judicial, function.

3. The prosecutor will petition the Sandiganbayan as the trial court for your discharge, and your exclusion as an accused from the information.

Thus, you will be extended immunity in two ways:

1. By DOJ, under R.A. No. 6981; and

2. By the court, where the information has been filed, and you have been arraigned and the case is undergoing trial.

Law Encourages State Witness

Regardless of your explanation on why you decided to turn state witness, the fact is that the law not only allows but also encourages you to become a state witness. I quote from the 2013 case of Ampatuan, Jr. v. Secretary of Justice (695 SCRA 159):

"These modes are intended to encourage a person who has witnessed a crime or has knowledge of its commission to come forward and testify in court or a quasi-judicial body, or before an investigating authority, by protecting him from reprisals and shielding him from economic dislocation."

Accordingly, I humbly encourage you to tell all you know about any and all PDAF kickback transactions at this hearing.

State Witness Does not Need Corroboration

Under the Rules of Court, when a witness testifies, his testimony should be corroborated by another witness. That is the general rule. But there is an exception, as set out in the 2010 case of People v. Anabe (630 SCRA 20):

"The uncorroborated testimony of a state witness may be sufficient when it is shown to be sincere in itself, because it is given unhesitatingly and in a straightforward manner and full of details which, by their nature, could not have been the result of deliberate afterthought. This exception, however, applies only if the state witness is an eyewitness, since the testimony would then be direct evidence."

The above-quoted Rule 119, Sec. 17, actually assumes that the testimony of the accused sought to be discharged as a state witness would constitute direct evidence (i.e., that he or she is an eyewitness), in that it requires that there is no other direct evidence, except the testimony of said accused.