MARK JEEG JAMIN JD-3/ M4

CRIMINAL PROCEDURE March 20, 2018

TO: ATTY. JOEL FAMADOR

__________________________________________________________________
A Paper on Court Visit and Assessing the Procedures in receipt of Evidence in Court
__________________________________________________________________

Courts are regarded as temples of justice. It is where one resorts to when he feels
aggrieved by the acts of another to redress his grievances. It is where the law is
practically applied and technically interpreted. It is the bastion of justice, integrity and
honor. But, redress of grievances depends upon the competence and strategies of the
parties’ counsels, which is why it is absolutely essential that counsels have, at the very
least, good grasp and appreciation of the rules of evidence.
Evidence is a means of ascertainment of truth, and when a counsel determines the
truth, by application of the rules of Evidence, it wouldn’t be so hard for the latter to get a
favorable judgment. Evidence is a bulwark of lawyers in order to win a case in court. If
indeed a lawyer knows how to apply the rules of Evidence, he can maneuver a case and
can somehow tilt it to his clients’ advantage.

The Court Visit

On March 08, 2017, we went to the Hall of Justice in Cebu City, and observed the
proceedings therein especially the receipt of evidence in court litigation. In the sala of
MTC Judge Yvonne Artiaga, sixteen (16) cases were presented in the afternoon of that
day. Several of the cases were still on arraignment proceedings. In fact, out the sixteen
cases presented that afternoon, only one case has undergone a trial- the facts and
proceeding of such will be discussed and criticized in this paper.

The Case: A Resistance and Disobedience of a Person in Authority

The case that transpired during our court visit is a criminal case filed by the State
against a certain Dela Cerna for resistance and disobedience of a person in authority. The
factual circumstances of the case as narrated by the police officer being the only witness
presented, provides that, while the police officers were conducting their foot patrol for
police visibility at around 10 pm of a certain day in the month of September 2017, they
saw the accused together with another person who were doing allegedly suspicious acts
under the lighted VECO lamp post. The police officer testified that they were only six
meters away from the accused when they saw the latter holding a plastic sachet filled
with crystalline substance to which the former suspected to be methamphetamine
hydrochloride (shabu). The police officer together with his two other police companion,
tried to arrest the accused but according to the former the latter eluded and resisted the
arrest, and because of the accused’ resistance, the police officer said that he found
himself fallen and thrown into a canal.

With the facts established by the police officer in the direct examination, the counsel for
the defendant cross-examined him to impugn his credibility. The counsel, who is a PAO
lawyer, asked the witness first about the distance of the police officer to the accused
when they saw the latter with another, doing some “suspicious acts” and holding the
alleged packet of “shabu”. He then correlated his question on the distance with the
brightness of the VECO lamppost vis-à-vis the seemingly dark disposition of the area as
captured in the photographic copy of evidence presented in court. In this first line of
questioning by the defendants’ counsel, he established that it would have been difficult
for the police officer to readily identify in “plain view” the plastic packet containing
white crystalline substance as “shabu” since the photographic evidence and the distance
of the police officers from the accused negates the police officers positive identification
of the shabu and their conclusion that the accused is using the same.

Thereafter, the same counsel, also asked about the policy or rules of the PNP (Philippine
National Police) in conducting foot patrol. The witness positively responded that during
foot patrol the rule is that police officers should be wearing police uniforms. The
defendant counsel attacked his answer by asking the latter what is his understanding of
police visibility considering the fact that it would be counterintuitive to say that they are
conducting such activity for police visibility without wearing their prescribed uniforms.
The Fiscal, in defense of the witness, established in her re-direct of the witness, that the
foot patrol was conducted by the police officers acting as intel operatives and not just for
mere police visibility.

The last line of questioning by the counsel of the accused-defendant established the fact
of non-resistance on the part of the accused, pointing out that it would have been very
difficult for the accused to elude arrest and resist the same considering that there were
three officers who, according to the police officer himself, were bigger in stature
compared to that of the accused. The physical disposition of and the number of arresting
officers contradicted the fact of resistance on the part of the accused. Also important is
the fact that the police officer was not actually thrown in the canal because according to
him, only his right foot and not his whole body, upon arresting the accused, that was
plunged into the said canal.

After the probing made in the direct, cross, redirect, and re-cross examination, the judge
deliberated upon the answers of the witness and even asked the witness similar questions
made by the counsel for clarificatory purposes.

Observation of the Proceeding

While observing, I was expecting more formality in the conduct of trial but what I
actually witnessed was more casual- a lot less than what I have expected. As far as I have
learned, documents and photographic evidence should be presented or offered in its
original copies pursuant to the celebrated principle of the “best evidence rule”. However,
when the fiscal was presenting the photos, they were presented not in their original copies
but only in the photostatic copies (Xerox copies) thereof. The theory that behest the
application of the best evidence rule is that the copy of the original is not as reliable as
the latter because of possible inaccuracy in the process of copying and the danger of
erroneous transmission of the original. Best Evidence Rule comes into play when the
subject of inquiry is the contents of a document, which is what is apparent in this case
because the contents of the photographic evidence, and not the mere existence of such
photo, is the subject of inquiry, hence essential to the proper determination of the factual
circumstances of the case.

Aside from the best evidence Rule, it is also worth noting that photographic
evidence are not the actual thing itself but are just demonstrative evidence being a
representation or depiction only of the real thing. Under the Rules of Evidence, for a still
photograph to be admitted, the same must be relevant and competent. It is competent only
when it is properly authenticated by a witness who is familiar with the scene portrayed
and who testifies that the photograph faithfully represents what it depicts. However, what
transpired in this case is rather a contravention of such rule, since according to the police
officer who testified, it was his police companion who took the photo in the latters’
smartphone, hence the best person who could have properly authenticate it and testify to
the faithful representation of the scene portrayed in the photo would be that same police
companion of his, who was not presented in this case.

Nonetheless, we are also all too knowing of the fact that absence of any objection
would bar the other counsel to question the integrity of the evidence presented based on
best evidence rule and the rules provided for in presentation of demonstrative evidences.
The silence of the counsel of the defendant in this case purports only the admissibility of
the evidence presented.

In the same vein is my criticism of the counsels in not actually posing objections
towards the other counsel in their direct, cross, re-direct, and re-cross examinations. I was
frustrated by the fact that the counsels were all too lenient and discarding in observing the
rules on objections. The Rules of Evidence have allowed objections so as to keep out
inadmissible evidence that would cause harm to a client’s cause and to expose the
adverse unfair tactics- this was not fervently practiced by the counsels in this case. Best
to account on one side is that on direct examination, the fiscal was constantly asking
leading questions like “xxx you saw them holding a pack of white crystalline substances
purported to be shabu right? (non-verbatim)” but while leading questions should not be
made, the lack of objection on the part of counsel for the accused-defendant constitutes a
bar for the latter to strike the answer of the witness. On the other hand, there were also
misleading questions that were asked by the counsel of the defendant to the witness,
which was also not objected by the fiscal. The remiss made by both counsels appears to
me to view litigation in some aspects more as a casual interaction rather than a formal
debate and throw of arguments by competent counsels in order to advance the interest of
the person/s they wish to protect.

On a lesser note, veering away from criticizing the non-observance of the rules of
evidence, I was appalled by the fact that the fiscal, in all instances and not only in this
case, has shown unfavorable actions showing her impropriety and languor. Although, it
shows that she tried her best to fight for the cases, she has been very complacent. Also,
while it is a minor issue, I think it is important in a court proceeding that the interpreter is
fully knowledgeable of the English language and is or should be articulate, because as far
as court proceedings are concerned it should be done expeditiously, however what
happened during the trial was she was not able to immediately translate whatever is said
by the witness, also, the frequent asking of the interpreter delays, although nominally, the
proceeding.

Lastly, the rescheduling of several cases just because a certain witness or witnesses or
even the accused are not present for me is a violation of the right to the speedy
disposition of cases. I commend, on the other hand, the call of the PAO lawyer as counsel
of the accused in one of the cases presented during that afternoon, for his candor in
respecting and acknowledging the right of the accused in such case to speedy trial.

This and all other rights of the accused and the parties in general should always be the
heart of every counsel in every case they hold or even referred to. It should also be a
constant reminder to all counsels and agents of the State to always educate themselves of
old and new rules and laws, because the practice of law is a profession that is always
subject to continuous education. In the defense of counsels and agents of State, they are
not only to know the substantive law, but also the equally important procedural law. It is
not far-fetched to think and aspire for a court-litigation filled with counsels and State
agents who debate and throw arguments similar as to that what we see in Hollywood
movies, for Filipino lawyers are capable of imitating such practice, they are just to lazy to
do the same. The future of court-litigation depends upon the propriety of our lawyers. If
all lawyers work for the best interest of their clients, and not just for business purposes,
then we could, in one-way or another, see hope in a seemingly impossible state of justice
system in our country. After all, there is nothing impossible, and our constant reminder
and call for justice will not be futile. Our collective effort in changing this dilapidated
system is our only ingredient to achieving our aspirations.