Did SC err in People v. Sergio? Probably, yes

With due respect to the Supreme Court's Third Division, especially to Justice Marvic M.V.F. Leonen who concurred in the decision in People v. Sergio (G.R. No. 240053, October 09, 2019), it is humbly submitted that there is room for debate and a better view exists regarding the right of the accused to meet the witnesses face to face, which is a constitutionally-protected right.

It is almost universally accepted that the right to confrontation of a witness is one of the fundamental basic rights of an accused. (Savory Luncheonette v. Lakas Manggagawang Filipino, 159 Phil. 310) People v. Sergio correctly emphasized that said right is ingrained in our justice system and guaranteed by no less than the 1987 Constitution as stated under its Article III, Section 14(2), to wit:

Section 14. (1) x x x (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

The phrasing of the right to confrontation (also known as the "confrontation clause") under our Constitution was pattered after the way it was written under the Kentucky Constitution which also says: "to meet the witnesses face to face." Compare this with the Federal (US) Constitution's phrasing of the same right, viz: "to be confronted with the witnesses against him." Because of the difference in the language used between the two constitutions, it did not come as a big surprise when there arose conflicts in interpretation of the same right between the Kentucky Supreme Court and the Federal Supreme Court.

In 1986, the Supreme Court of Kentucky decided Commonwealth v. Willis, 716 S.W.2d 224. In said case, a "child shield" statute authorized a child victim or witness of sexual abuse who is under the age of twelve to testify outside of the presence of the defendant via one-way closed circuit television or in a pre-recorded proceeding conducted outside the courtroom. The testimony taken from such setup is later on shown in the courtroom during trial.

Under said Kentucky child shield statute, upon a showing of substantial need, the procedure can be used in trials involving a variety of prosecutions for sexual crimes or dependency proceedings. In Willis, the Supreme Court of Kentucky held that the procedure offended neither the federal nor the state confrontation clauses. In short, it was held that the federal clause and the state clause are the same, i.e. there is no difference in their meanings. This decision, it is humbly submitted, ignored the plain meaning interpretation of the confrontation clause (meet the witnesses face to face), which would guarantee that the defendant or the accused would be physically present while the witness testifies.

This is almost the same issue in the case of People v. Sergio decided by the Philippine Supreme Court. In this case, the two accused raised the issue of violation of the right to confrontation when the trial court allowed the taking of deposition of the alleged victim of illegal recruitment and human trafficking. The main argument in the case was that the victim's situation was a unique one, thus justifying a deviation from the general rule. The High Court anchored such a conclusion on the legal principle that the right to confrontation is a waivable right if not invoked seasonably or properly.

In People v. Sergio, the private complainant, Mary Jane Veloso (Mary Jane), is under detention in Indonesia. She was scheduled to be meted with the death penalty (by firing squad) but, fortunately, the Philippine Government was able to convince the Indonesian Government to delay her execution while the former attempts to convict the accused who are allegedly behind Mary Jane's arrest for cross-border transfer of illegal drugs.

Mary Jane's conviction, the waivable nature of the right of confrontation and the doubtful application of the rule on parts of res gestae are what the Supreme Court used to arrived at the conclusion that face-to-face confrontation of the witness Mary Jane can be replaced with a deposition under the auspices of the trial court judge and with the use of written questions.

This dissent, of course, in no way, has any bearing on Philippine jurisprudence as it is the Supreme Court which has the final say on what the law means. However, it is humbly and very respectfully submitted that a different view could have been taken and the results of the case would have been different. "More important than anything else is that the court is right." (G.R. No. 140230)

There are three (3) relevant modes of interpretation here. First is verba legis; when the law is clear and free from any ambiguity, there shall be no attempt at interpretation. Second, the original intent of the framers should govern. Third and finally, in case of doubt in the interpretation or application of the law, the court must rule in favor of the accused and in favor of right and justice.

NO AMBIGUITY. There is no ambiguity in the phrase "to meet the witnesses face to face." Such must be applied literally, i.e., the accused should be given the chance to look the witness in the eye while the latter testifies in court. This right of confrontation and the taking of an oath before taking the witness stand are mechanisms that coerce the truth out of the witnesses' mouth. Such mechanisms should not be deprived of the accused, especially in the face of a clear, positive and unequivocal constitutional mandate.

INTENT OF THE FRAMERS. As already mentioned, the US Federal Constitution does not contain the phrase "to meet the witnesses face to face." However, such phrasing can be found in the Kentucky State Constitution. Considering the fact that the framers of the 1987 Constitution opted to ignore the federal phrasing of this right and adopted the Kentucky version thereof, a lot can be said about the correlative intent to adopt the meaning and the jurisprudence behind the law.

Thirty (30) states (in the US) follow the "confront" language of the Federal Confrontation Clause, seventeen states contain the "face to face" language," and three states appear to have no confrontation clause in their state constitutions. (Dunn, Sarah M. [2007] ""Face to Face" with the Right of Confrontation: A Critique of the Supreme Court of Kentucky's Approach to the Confrontation Clause of the Kentucky Constitution," Kentucky Law Journal: Vol. 96 : Iss. 2 , Article 6. Available at: https://uknowledge.uky.edu/klj/vol96/iss2/6)

Dunn (2007) also found that the first "face to face" clause was written into the Massachusetts Constitution. This was later on copied by the Kentucky Constitution at a time when both the "confrontation" clause and the "face to face" clause were already in existent in other constitutions. Prior to Commonwealth v. Willis, the US Supreme Court said:

The primary object of the [Confrontation Clause is] to prevent depositions of ex parte affidavits... being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. (Mattox v. United States, 156 U.S. 237, 242–43, 1895)

In 1971, the Kentucky Supreme Court ruled: "The federal constitution grants the right to the accused "to be confronted with the witnesses against him," and the state constitution guarantees to him the privilege to "meet the witnesses face to face." The main purpose of confrontation is to insure the right of cross-examination and protect the accused from conviction by means of ex parte testimony of affidavits given in his absence." (Flatt v. Commonwealth, 468 S.W.2d 793, 794-95, Ky. 1971)

Nebraska and Indiana, both having the "face to face" clause in their constitutions, have pieces of jurisprudence that guarantee a more stringent right to confrontation. Both the Nebraska Supreme Court and the Indiana Supreme Court found their child shield statutes unconstitutional in view of the state constitution's "face to face" clause. (Commonwealth v. Bergstrom, 524 N.E.2d 366, 371, Mass. 1988; Brady v. State, 575 N.E.2d 981, 986-88, Ind. 1991)

RIGHT AND JUSTICE; DOUBT RESOLVED IN FAVOR OF THE ACCUSED. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. (Article 10 of Republic Act No. 386) In addition to this, the fundamental principle in applying and interpreting criminal laws is to resolve all doubts in favor of the accused. In dubio pro reo. When in doubt, rule for the accused. This is in consonance with the constitutional guarantee that the accused ought to be presumed innocent until and unless his guilt is established beyond reasonable doubt. (G.R. No. 173473)

Although some may argue that the "face to face" clause under the 1987 Constitution has doubtful meaning (which is not true), the literal interpretation of the right of confrontation still has to be upheld because of the rule that doubts should be resolved in favor of the accused. The reason behind this is that the prosecutory machinery of the government are now against the accused, by virtue of an information filed in court, who are helpless compared with the virtually unlimited resources of the State.

Pitted against the resources of the state, an accused is already at a disadvantage; [there is] no need to make his position worse. (REYES, J.B.L., dissenting: Samson v. CA, G.R. Nos. L-10364 and L-10376, March 31, 1958)

PHILIPPINE JURISPRUDENCE. Even the Supreme Court of the Philippines has spoken about the importance of the accused meeting the witnesses face to face. In one case, it held:

Testimony in open court in actual trial cannot be equated with any out-of-court declaration, even when the witness has in fact been confronted already by the defendant. The direct relevance of the trial to the ultimate judgment as to the guilt or innocence of the accused is not present in any other proceeding and is thus a factor that can influence materially the conduct and demeanor of the witness as well as the respective efforts of the counsels of the parties. (People v. Ramos, G.R. No. L-59318, May 16, 1983)

In the above-cited People v. Ramos case, the Supreme Court found that the lower court erred in admitting as evidence the written sworn affidavit of Malcon Olevere who merely executed a written sworn statement declaring that appellant Ramos sold to him marijuana leaves for Php10.00. The High Court discarded this piece of evidence as a mere scrap of paper because Malcon Olevere was not produced in court for cross-examination. An affidavit being taken ex-parte is often incomplete and inaccurate. Such kind of evidence is considered hearsay. The constitutional right to meet witnesses face to face in order not to deprive persons of their lives and properties without due process of law is well-protected in our jurisprudence.

In another case, the Supreme Court said that the Bill of Rights guarantees that, in all criminal prosecutions, the accused shall enjoy the right to meet the witnesses face to face. In exercising this right the accused employs the tool of cross-examination to test the testimony of a prosecution witness and to allow the judge to observe his deportment. The uncompleted testimony of a witness may be rendered incompetent and therefore should be stricken off the record when the accused fails to cross-examine the witness due to causes not attributable to him. However, when the failure to cross-examine, as in this case, is attributable to the adverse party’s own fault, or by his actuations the opportunity to cross-examine was lost wholly or in part, the right to cross-examine is impliedly waived. (People v. Digno, G.R. No. 108958, November 23, 1995)

CONCLUSION. The State, having all the money, time and mechanisms to put any person in prison, should go the extra mile and give the accused in People v. Sergio at the very least their rights guaranteed under the 1987 Constitution. With the attention given by the Executive Branch into jailing the accused in the alleged illegal recruitment and trafficking of Mary Jane, leading to her arrest and conviction for violation of Indonesian illegal drugs law, it is almost impossible to get an acquittal.

It would not bankrupt the Philippine Government to send the accused in Indonesia so they can see the witness face to face and preserve what they are entitled to under the Bill of Rights. This is the least the State can do in its attempt to serve justice to itself, the private complainant and the accused.

But then again, the decision of the Supreme Court is controlling and this opinion is not.

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