Criminal law – Page 99 – marichulambino.com

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(Photo of ecstasy pills, right-clicked from www.pdea.gov.ph used here for educational and non-commercial purposes)

At today’s congressional hearing (I’ll just discuss in passing the criminal procedure aspect; not the bribery allegations), State Prosecutor Resado was asked how he would have ruled had the Alabang boys not executed a waiver. He said he would have ruled against them and would have filed the drug case in court.

The buy-buy operation by which the Alabang boys were apprehended is a form of a warrantless arrest; valid depending on the circumstances; if the respondents were caught in flagrante delicto or in the act of committing a crime, then valid. Any search made in relation thereto, or in relation to the arrest, is a form of a search incident to a lawful arrest. If the arrest were valid, the search incident thereto is valid. State Prosecutor Resado discussed something about the failure to conduct an inventory on site and the chain of custody. I’ll leave the other lawyers to discuss that, not wanting to do free research and opinion for any party. But the ones stated here are what the Rules of Court provide. If in flagrante delicto, valid warrantless arrest. If valid arrest, any search incident to the arrest is valid. The search must be only of the immediate vicinity; there are cases that say that that search must be only within literally the arm’s length of the suspects because the purpose is to prevent the suspect from reaching for any weapon that he/she may use against the law enforcers. I’ll leave other lawyers to discuss the research on that.

After such warrantless arrest (in flagrante delicto) an inquest, or a kind of “speedy investigation” (my words), is conducted. It must be conducted right away. Because the suspects have now been warrantlessly arrested and in detention; they have to be charged within 12 or 18 or 36 hours depending on the case. If charges are not filed within 12 or 18 or 36 hours depending on the case, then the State has to release them. There’s a constitutional right not to be detained without charges, and the charges have to be filed within those periods. Otherwise, those detaining the suspects would be charged with arbitrary detention, a criminal offense.

Based on “statistical experience” (my words), aecstasy most inquest proceedings are resolved in favor of the State; I’m not saying that’s a rule or it is a practice, I’m just saying that’s based on statistics.

(Photo of ecstasy pills, right-clicked from www.pdea.gov.ph used here for educational and non-commercial purposes)

The suspects, especially where the anticipated charge is a capital offense, usually ask that a full-blown preliminary investigation be conducted instead of just an inquest. Why? If it’s anticipated to be a capital offense, the suspects are detained and will be detained after the charges are filed and until the trial is over, which is a very long time and may take years and years. Years and years in detention during trial: weigh that against a month or two of detention during preliminary investigation, at which time you can present more evidence and play with your chances. Which do you choose?

So, the suspects usually take their chances with a full-blown preliminary investigation. They have to execute a waiver of their right not to be detained beyond 12 or 18 or 36 hours and the right to file a case of arbitrary detention. In exchange, they get a full-blown preliminary investigation. There’s a circular that says that a preliminary investigation must be resolved within 90 days.

(that’s the post for today; i won’t give an opinion on the length of time of the detention in this case; yeah, sometimes i choose not to give an opinion.)

To be fair, some if not many of the DOJ prosecutors who spoke at yesterday’s press conference have been, through the years, strictly professional at their work and had quietly performed their duties regardless of who sat as DOJ secretary or regardless of who sat in Malacanang; as can be seen by their winning streak. Prosecutors like Deputy Chief Prosecutor Dong Fadullon, aprosecutiion

whose soundbytes and heartfelt remarks were used by TV news, have been winning their kidnap-for-ransom cases in fair weather or storm, come hell or high water amid death threats and bullets from the kidnap syndicates. We worked with them in the plunder case; they were assigned there because they were the best of the lot. Their winning and consistent track record shows that there are many DOJ prosecutors who are competent and upright.

It is another matter if the prosecutor were losing his/her cases against the syndicates or dismissing them in a row regardless of the evidence: that should be looked into. Beyond the one-shot investigation that would be done on the alleged drug bribery incident, the panel might include a review of the dismissed cases (dismissed on preliminary investigation or during trial) to see if there is a pattern.

While it is the judgment call of the prosecutor on preliminary investigation whether or not there is a prima facie case, and while most of us including the blog admin did not see the resolution, or the evidence, in the drug case, the general examples of a prima facie case are:

1) where there are two or more witnesses who have personal knowledge or first-hand knowledge of the facts of the crime and who can unmistakably identify the perpetrator;

or if there were only 2) one witness, where the lone witness has first-hand knowledge and his/her testimony is consistent, certain, logical, and without a doubt; and the suspects have no iron-clad alibi;

or 3) where the respondents were caught in flagrante delicto;

or 4) where the evidence were the product of a search and seizure: the search was lawful and valid and the seizure of the evidence was valid and the evidence not inadmissible, then these can be used for probable cause,

or 5) where the pieces of physical or object evidence or the documentary evidence pointing to the liability of the respondents are consistent, reliable, admissible, and unmistakable, then the respondents should be held bound for trial.

However, pattern is circumstantial evidence; you’d need other pieces of evidence on the bribery allegation.

On the other hand, on the other side, while the allegations on the supposed 50-million-peso bribe would rise and fall on the basis of testimonial evidence, the draft dismissal order that was passed to the DOJ secretary through the DOJ Undersecretary’s office is some kind of a “smoking gun” evidence of the use of, what one would call “connections” , to put it mildly, by respondents to get their way within the DOJ; plus the phone calls. It is an incident that even the DOJ secretary himself had attested to and have personal knowledge of, having received the draft order. In regard to that incident, what else do you need? The DOJ secretary himself saw it, he is the witness, what else do you need? There should however be a separate investigation of whether or not there is a pattern of dismissal of certain kinds of cases, and whether the dismissals were justified (as stated before, dismissal or charging is a judgment call, but there would be what one could consider general principles or guidelines established in jurisprudence; also, pattern is circumstantial but it sets off an alarm bell).