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Exercise-1 Feedback
Leachon <rachel.leachon@gmail.com>
Exercise 1 Online Clinic & Coaching on Bar Exam Answering Techniques
Ralph Sarmiento <attydeanralph@gmail.com> Tue, Jul 18, 2017 at 10:58 AM
To: Rachel Leachon <rachel.leachon@gmail.com>
You have to begin your answer with your conclusion or with at least some introduction or opening sentence.
You can’t just immediately state an issue or the issues without any introduction. For example: "RA 9090 is
unconstitutional for violating the…," or “The resolution of the following issues is vital to the case:” It has to be
in a complete sentence as you are communicating formally with the examiner.
1) Whether or not the right to privacy is violated by R.A. No. 9090.
Yes, the right to privacy guaranteed by the Bill of Rights is violated.
An accused or convict required to submit his DNA sample is similar to an accused subjected to
mandatory drug testing. They are have already been singled out, (Classification or singling out a class for
the application of a law is not per se invalid. Is the singling out not based on substantial distinction? Is it not
germane to the purpose of the law?) and they have no opportunity to waive invoke their rights. (So?) Also, it
forces them to incriminate themselves. (How? What is your basis for this? These are all empty assertions!)
(SJS v. DDB).
2) Whether or not R.A. No. 9090 violates the right to due process of the law.
Yes, R.A. No. 9090 violates the right to due process of the law.
The government has lawful means which is to curve rising rates of sex crimes and drugrelated offenses.
However, the method implemented is unduly oppressive to persons convicted or under prosecution of a
crime. (This is a mere empty assertion. Why is it unduly oppressive to persons convicted or under
prosecution of a crime? What is your legal basis for that? Where is your explanation?)
Furthermore, there is no assurance that the database collected and compiled by the NBI will be only
used for specific purposes mentioned in the said law. It may be abused by persons in authority. (The mere
possibility of the law to be abused does not make it invalid. Otherwise, all laws shall be invalid because they
can all be abused.)
So far, I did not see any problem with your issuespotting skills. You were good at spotting two relevant
issues.
Issuespotting is paramount. If you do not get the issues right, any discussion you make might not be given
any credit.
To determine what the issues are, analyze what facts and circumstances brought the parties to court. The
facts themselves would usually suggest what the issues are. For example, in this case, the purpose of the
petition was to challenge the constitutionality of RA 9090, so the issues raised should, therefore, be about
the constitutionality of the law.
If you analyze all angles of the problem, you would realize that there are a lot of constitutional issues that
may be raised here. For example, issues involving the following rights could have been raised:
1. equal protection of the laws as it puts petitioner in the same class as convicted
felons;
2. right against unreasonable searches and seizures;
3. right against selfincrimination;
4. right against ex post facto law; and
5. right against cruel, degrading and inhuman punishment
So far, I did not find your grammar a serious concern. However, you have to improve your reasoning and
analytical skills, and also the substance of your answer. You also have to show some more depth in your
answer. Reason out and explain. Do not just assert. You have to take each question as an opportunity to
exhibit your legal knowledge and to showcase your skills in legal analysis and reasoning. Answer as if your
whole life depends on it.
I actually gave the first exercise as my final exam in the Constitutional Law 2 subject of my firstyear
students. Here I am sharing with you one of the best answers I have received. Take note, however, of the
differences in the instructions. I asked them to find and discuss 5 issues. I gave them 2 hours and I also
asked them to discuss the arguments of both the petitioner and the Solicitor Solicitor General, which
explains why the answer is longer than the usual Bar exam answers.
This is the answer of one of my students whom I gave a grade of 1.0:
The issues to be resolved in this challenge on the constitutionality of RA 9090 are the following:
1. Whether or not RA 9090 infringes on the petitioner's right to privacy.
2. Whether or not RA 9090 violates the petitioner's right against selfincrimination.
3. Whether or not RA 9090 violates the Equal Protection Clause.
4. Whether or not the implementation of the RA 9090 is violative of the Due Process Clause for being
overbroad in its scope.
5. Whether or not the law is a violation of the right of the petitioner's right against unreasonable search and
seizure?
DISCUSSION
1. Whether or not RA 9090 unnecessarily infringes on the petitioner's right to privacy.
The petitioner assails RA 9090 on the grounds that the law infringes his right to privacy. According to
petitioner, there is a right to privacy that is protected by the Bill of Rights. This right is formed by the
penumbras of other rights expressly stated in the Bill of Rights. To support his contention, the petitioner
argues that the right to be secure in one’s person, houses, paper's and effects against unreasonable search
and seizures taken together with such other rights such as the rights not to be deprived of one's life without
due process of law, the right to privacy of correspondence and communication clearly indicate that the Bill of
Rights protects the privacy of the individual. As such, it is the contention of the petitioner that allowing DNA
taken from his body to be used as evidence against him is violative of his right to privacy.
The Solicitor General contends that even the right to privacy, assuming arguendo that there is one provided
by the Bill or Rights, is not absolute. Like most other rights, express or implied, the right to privacy is subject
to the Police Power of the State. He further contends that RA 9090 is a valid exercise of the state's Police
power for it has a lawful purpose, the suppression of crimes, and the means employed to achieve the
purpose is reasonable.
The Petitioner's contention that the law infringes, unnecessarily on his right to privacy is with merit.
First, it is well settled that the Bill of Rights protects the right to privacy. The petitioner is correct in pointing
out that several rights expressed in the Bill of Rights form a penumbra and within that penumbra, there lies
the Bill of Rights. (Griswold v. Connecticut, 381 US 479).
Second, as stated in RA 9090, the purpose of the law is to curb the rising sex crimes and drugrelated
offenses. This court fails to see how getting a sample of a person's DNA can be related to the suppression
of sex crimes and drugrelated offenses. But even without passing on the reasonableness of the means
employed by the said law, it is still quite apparent that the law allows an invasion of privacy because it allows
material or evidence taken for one purpose, to be used for an entirely new purpose. Even if DNA testing is a
reasonable means to suppress sex crimes and drug related crimes and therefore a permissible intrusion on
petitioner's right to privacy, this does not justify the use of the same DNA material in a civil proceeding. The
use of such material is completely unrelated to the purpose of the law in question for such use is neither to
suppress sexrelated crimes nor drug related ones. The intrusion therefore, as applied to the petitioner is not
justified. To suppress crimes, it is not necessary to expose petitioner and his private marital and family
affairs to the eyes of the world. Therefore, the law as applied to the petitioner unnecessarily infringes on his
right to privacy.
2. Whether or not RA 9090 violates the petitioner's right against selfincrimination.
The petitioner argues that RA 9090, insofar that it requires or compels him to submit bodily fluids for
purposes of DNA testing, violates his right against selfincrimination. The petitioner contends that compelling
him to submit body fluids or tissues is similar to compelling him to admit of a certain act and that it is no
different from requiring him to furnish documents to be used as evidence against him.
The Solicitor General, on the other hand, argues that the challenged law does not violate petitioner's right
against selfincrimination because the said right is limited only to testimonial compulsions. It is the
contention of the Solicitor General that obtaining tissues or bodily fluids does not fall within the restrictions
provided by the right against selfincrimination. He adds that DNA evidence is physical evidence as opposed
to testimonial ones. Finally, he claims that obtaining DNA is not invasive, let alone barbaric. It is within the
power of the State to perform such acts.
The contention of the Solicitor General is impressed with merit. It has been held by this court that the right
against selfincrimination is limited only to testimonial compulsion. The justification of the right is twofold.
One is of policy, that is, it is not good policy on the part of the state if it will allow an accused or a witness
under strong temptation to lie or commit perjury on the ground that he will incriminate himself if he gives the
honest answer. The second consideration of the right is borne out of security or humanity concerns for the
individual. The right seeks to prevent duress and extorting of confessions by the state.
In the case at bar, preventing the taking of DNA samples by the state does not come in conflict with any of
the purposes of the said right. The accused is not placed under any compulsion or temptation to lie as he is
not even required to speak or issue an affidavit. All he has to do is to allow medical and welltrained
professionals to take samples, nothing more. In addition, there can be no extortion on the part of the state.
As mentioned, medical professionals will handle the extraction, there is no need for the state to beat or
extort the DNA out of the petitioner. Finally, as pointed out by the Solicitor General, physical evidence
obtained from the accused or petitioner is not within the purview of the right against selfincrimination. As
held by the court in Wilson vs Collins, 073428, 2008 US, DNA evidence is physical evidence, not
testimonial evidence. It is clear, therefore, RA 9090 does not violate the petitioner's right against self
incrimination insofar as the evidence is physical evidence not testimonial ones.
3. Whether or not RA 9090 violates the Equal Protection Clause.
The petitioner contends that RA 9090 violates the equal protection clause of the Constitution as it fails to
place a necessary distinction among prisoners of different types. He contends that the law places and treats
different persons, who are not similarly situated, similarly. Such lack of classification, when a classification is
clearly called for, in effect, violates the equal protection clause for the same will, ironically, cause
inequalities.
The Solicitor General argues that the Equal Protection clause is not violated by RA 9090. His contention is
that a violation of the said clause occurs only when there is classification and that either of the following is
not observed:
1. the classification rests on substantial distinctions;
2. it must be germane to the purpose of the law;
3. it must not be limited to existing conditions;
4. it must apply equally to all members of the class.
The Solicitor General concludes that there being no classification to begin with, there cannot be violation of
the equal protection clause since every prisoner is treated or subject to the said DNA testing.
The court finds merit in the contention of the petitioner. According to a line of cases, equal protection
requires that all persons or things similarly situated should be treated alike (Ichong vs. Hernandez ,101 Phil
1155). It is apparent, therefore, that in order to determine whether there is indeed a violation of the Equal
Protection Clause, it is necessary to ascertain if the prisoners or convicts and those who are at being merely
prosecuted are in fact similarly situated. That is, whether there is a substantial distinction between those
who are merely prosecuted and those who were already convicted. The finding of this court is in the
affirmative. Our Supreme Law recognizes and cherishes the presumption of innocence of a person.
Conviction by final judgment is what destroys this presumption. Until and unless a person is convicted by
final judgment, the presumption remains. This presumption of innocence, in and of itself, is a substantial
distinction between those convicted and those who are merely accused of such crime.
Therefore, to subject both convicts and those who are merely prosecuted to the same treatment of
circumstance would result in unequal protection. It may be conceded that there exists enough compelling
reasons to justify DNA sampling to convicted criminals. After all, their guilt was proven and thus they may be
considered as dangerous to society. DNA testing, as a means to curb the incidence or future incidence of
crimes, is therefore reasonable when applied to proven criminals. However, the same measure will prove to
be unreasonable when applied to persons who are merely prosecuted. It has not been proven that these
persons actually committed the crimes imputed to them. There being a danger to society by virtue of their
propensity for crimes is not as of yet ascertained. Certainly, therefore, they cannot be placed in the same
class with those whose guilt are beyond question.
Finally, even if DNA testing is applied only to criminals, it may still be violative of equal protection clause.
Crimes are varied and the nature of one crime is not necessarily substantially similar to those of another
crime. Murder is totally different from theft. Theft is totally different from rape. Measures to curb rape may
not be reasonable when the same are applied to persons who were found guilty of theft. There is no cure
that will prevent all crimes. Prescribing the same medicine to different patients suffering from different
ailments is not reasonable in the same manner as institution of the same measures to various kinds of
criminals. This court will not uphold such unreasonableness.
4. Whether or not the implementation of the RA 9090 is violative of the Due Process Clause for being
overbroad in its scope.
The petitioner contends that the RA 9090 is overbroad. He points out that the means used to implement
said law are not reasonably related to the purpose it seeks to achieve. According to him, the law seeks to
curb the incidence of sex and drugrelated crimes however the means used are not narrowly drawn for that
purpose.
The Solicitor General argues that the law is not violative of the due process clause. According to him, the
law has a lawful purpose and that it has a lawful and reasonable means to attain said purpose. He claims
that a law should not fall merely because its benefits may be extended beyond its purpose.
There is merit in the contention of the petitioner. There is no need to debate upon that the purpose of said
law is, in fact, lawful. Certainly, it is within the power of the state to institute measures to prevent crime and
promote the welfare of the citizenry. This does not, however, mean that the state may infringe on protected
freedoms out of whim or caprices. A big defect of RA 9090 is that it allows DNA evidence to be used in other
proceedings. It does not limit the type and nature of proceedings where DNA evidence obtained by virtue of
said law, can be used. By so allowing, the law allows infringement of rights, specifically that of the right to
privacy, even if the purpose of such infringement is not at all germane to the purpose of the law. It allows the
potential for authorities to use data obtained for almost any purpose. Although there is the presumption of
regularity on the part of the officials, it is, however, a dangerous proposition to rely on such presumption,
without any tangible safeguards against abuses, when what is at stake is the very sanctity of a person, his
privacy. Such cannot be left at the mercy of officials. This is contrary to the values cherished by the people
and embodied in our Bill of Rights. The law should fall as being overbroad, unreasonable and therefore
unconstitutional.
5. Whether or not the law is a violation of the right of the petitioner's right against unreasonable search and
seizure?
Petitioner maintains that since blood or tissues are part of his body and thus his person, presenting the
same to be used as evidence without virtue of a warrant is violative of his Right against unreasonable
search and seizure.
The Solicitor General argues that requiring the petitioner to submit samples for DNA purposes is not
violative of the latter's rights against unreasonable search and seizure. He contends that since there was not
even a search, there cannot be a violation of the aforementioned right.
This court finds merit in the contention of the Solicitor General. It should be noted that what the Bill of Rights
prohibits is the unreasonable search and seizure of one's person, house, papers and other effects. It should
be pointed out that if such a search or seizure is reasonable, then there is no conflict insofar as that
provision of the Bill of Rights is concerned. The requirement of a warrant in order for a person can be
properly searched is a safeguard against searches and seizures that are unreasonable. The reason is that a
judge, who is presumed to be impartial and learned in the science of law, will be able to ascertain if in fact
there is probable cause or enough reason, based on facts and circumstances that a search is justified and
reasonable. In the case, even on the assumption that there is a search done in requiring DNA samples, the
same cannot be presumed nor was it proven to be unreasonable.
First, the DNA sample is required from persons who are either convicts or those who are prosecuted. This
means that at some point at least, they have been in the custody of the judicial authorities already. For those
who are merely prosecuted, it can be said that they are under the judicial authority's custody. For those who
are already convicted, their guilt is already proved and, therefore, there is already the existence of facts and
circumstances that supports the reasonableness of such a search. After all, a person lawfully arrested even
without a warrant, may be searched. It is only logical that a person convicted or prosecuted, whose rights
are considerably more restrained, can also be search. Such search will not violate his rights.
CONCLUSION
RA 9090 is violative of the Due Process clause as it unnecessarily and unreasonably infringes on protected
freedoms (Griswold v. Connecticut). It is far too broad for the attainment of its stated purpose. It can be
narrowly drawn yet as is shown by the foregoing discussions; it was not narrowly drawn. It submits itself to
potential abuses by public officials. It offers little if any safeguards against such abuses.
RA 9090 is also violative of the Equal Protection Clause. It fails to distinguish between convicts and those
who were merely accused. It further fails to distinguish between criminals whose crimes are of such different
natures for each other. As a result of this lack of necessary classification, the statute, as mentioned is
overbroad. To allow such a lack of classification is to akin to allowing same amount of taxes to be levied
upon on all person so long as he has some sort of income. Though the comparison may be extreme, yet it
cannot be denied that failing to institute classification, when the same is necessary, results in unequal
protection.
Therefore, Republic Act 9090 should be declared unconstitutional for being overbroad and violative of due
process. The law shall have no force and effect, it being contrary to the Constitution.
Ralph A. Sarmiento
Mobile # +63 920 9387440
FB: facebook.com/attyralph
Twitter: twitter.com/attyralph
"If you can't reduce your argument to a few crisp words and phrases,
there's something wrong with your argument."
~ M. Saatchi
On Wed, Jul 12, 2017 at 9:39 AM, Rachel Leachon <rachel.leachon@gmail.com> wrote:
Exercise 1
1) Whether or not the right to privacy is violated by R.A. No. 9090.
Yes, the right to privacy guaranteed by the Bill of Rights is violated.
An accused or convict required to submit his DNA sample is similar to an accused subjected to mandatory drug testing.
They are already singled out and they no opportunity to waive their rights. Also, it forces them to incriminate
themselves. (SJS v. DDB).
2) Whether or not R.A. No. 9090 violates the due process of the law.
Yes, R.A. No. 9090 violates the due process of the law.
The government has lawful means which is to curve rising rates of sex crimes and drugrelated offenses. However, the
method implemented is unduly oppressive to persons convicted or under prosecution of a crime.
Furthermore, there is no assurance that the database collected and compiled by the NBI will be only used for specific
purposes mentioned in the said law. It may be abused by persons in authority.