POLITICAL LAW REVIEW
KA-POLI NOTES What is the scope of this right?
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BILL OF RIGHTS
Section 17. No person shall be compelled to be a witness
against himself.
RIGHT AGAINST SELF-INCRIMINATION
When is this right be available?
(1.) The right is available not only in criminal prosecutions
but also in all other government proceedings, including
civil actions and administrative or legislative
investigations. It may be claimed not only by the accused
but also by any witness to whom a question calling for
an incriminating answer is addressed.
(2.) As a rule, it may be invoked only when and as the
question calling for an incriminating answer is asked,
since the witness has no way of knowing in advance the
nature or effect of the question to be put to him. This is
true, however, only of an ordinary witness.
(3.) In a criminal prosecution, the accused may not be
compelled to take the witness stand, on the reasonable
assumption that the purpose of the interrogation will be
to incriminate him
(4.) The same principle shall apply to the respondent in an
administrative proceeding where the respondent may be
subjected to sanctions of a penal character, such as the
cancellation of his license to practice medicine.
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(1.) The kernel of the right is not against all compulsion, but
testimonial compulsion only.
(2.) The right against self-incrimination is simply against the
legal process of extracting from the lips of the accused
an admission of his guilt.
(3.) It does not apply where the evidence sought to be
excluded is not an incriminating statement but an object
evidence.
(4.) What is actually proscribed is the use of physical or moral
compulsion to extort communication from the accused-
appellant and not the inclusion of his body in evidence
when it may be material.
(5.) Thus, substance emitted from the body of the accused
may be received in evidence. Hair samples taken from
the accused may be admitted in evidence against him.
(6.) Evidence involving deoxyribonucleic acid (DNA) is
likewise admissible, and in People v. Yatar, G.R. No.
150224, May 19, 2004, was utilized to affirm the death
sentence on the accused found guilty of child-rape with
homicide.
(7.) A person may be compelled to submit to fingerprinting,
photographing and paraffin testing, as there is no
testimonial compulsion involved.
Can this be waived?
Yes. The right against self-incrimination may be waived, either
directly or by a failure to invoke it, provided the waiver is
certain and unequivocal and intelligently made. Thus, the
accused who takes the witness stand voluntarily and offers
testimony on his behalf may be cross-examined and asked
incriminating questions on any matter he testified to on direct
examination.
A person suspected of having committed a crime and
subsequently charged with its commission has the following
rights in the matter of his testifying or producing evidence, to
wit:
Before the case is filed in Court [or with the public prosecutor,
for preliminary investigation], but after having been taken into
custody or otherwise deprived of his liberty in some
significant way, and on being interrogated by the police: the
continuing right to remain silent and to counsel, and to be
informed thereof, not to be subjected to force, violence,
threat, intimidation or any other means which vitiates the free
will; and to have evidence obtained in violation of these rights
rejected and inadmissible; and
After the case is filed in Court: to refuse to be a witness; not
to have any prejudice whatsoever result to him by such
refusal; to testify in his own behalf, subject to cross-
examination; and while testifying, to refuse to answer a
specific question the answer to which tends to incriminate him
for some crime other than that for which he is being
prosecuted.
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What is the right to self-incrimination?
It is where the accused cannot be compelled to be a witness
against him.
What is its common origin?
Nemo Tenetur Seipsum Accusare which means no man is
bound to accuse himself. The origin is basically older than our
constitution.
What are the two (2) bases of this fundamental right?
(1.) Policy – This is because of the fact that it would place the
witness against the strongest temptation to commit
perjury.
(2.) Humanity-This is because of the fact that it would be to
extort a confession of truth and the degree of which the
law abhors.
Who is entitled to invoke these rights?
(1.) The accused and the ordinary witness; but not with the
same extent because an accused occupies a different tier
of protection as compared to ordinary witness. An
ordinary witness may be compelled to take the witness
stand and claim the privilege as each question requiring
an incriminating answer is shot at him.
(2.) On the other hand, accused may altogether refuse to
take the witness stand and refuse to answer any and all
questions. He need not wait for an incriminating
question. The RATIONALE behind this is because for in
reality the purpose of calling an accused as a witness for
the prosecution would be to incriminate him.
What is the essence of this constitutional guarantee?
➔ TESTIMONIAL COMPULSION. One may be subjected to
physical evidence.
➔ According to Justice Holmes: “The prohibition of
compelling a man in a criminal court to be a witness
against himself, is a prohibition of the use of physical or
moral compulsion, to extort communications from him,
not an exclusion of his body as evidence, when it may be
material.
United States vs. Tan Teng
G.R. No. 7081. September 7, 1912
Facts:
➔ Tan Teng was gambling near the house of the victim and
it was alleged that he entered her home and threw the
victim on the floor and place his private parts over hers.
➔ The defendant raped Oliva Pacomio, a seven-year-old
girl.
➔ Several days later, Pacomio was suffering from a disease
called gonorrhea.
➔ Pacomio told her sister about what had happened and
reported it to the police.
➔ Tan Teng was called to appear in a police line-up and the
victim identified him.
➔ He was then stripped of his clothing and was examined
by a policeman. He was found to have the same
symptoms of gonorrhea.
➔ The policeman took a portion of the substance emitting
from the body of the defendant and turned it over to the
Bureau of Science.
➔ The results showed that the defendant was suffering
from gonorrhea.
➔ The lower court held that the results show that the
disease that the victim had acquired came from the
defendant herein. Such disease was transferred by the
unlawful act of carnal knowledge by the latter. The
defendant alleged that the said evidence should be
inadmissible because it was taken in violation of his right
against self-incrimination.
Issue: Whether or Not the physical examination conducted
was a violation of the defendant’s rights against self-
incrimination.
Held: The court held that the taking of a substance from his
body was not a violation of the said right. He was neither
compelled to make any admissions or to answer any
questions. The substance was taken from his body without his
objection and was examined by competent medical authority.
The prohibition of self-incrimination in the Bill of Rights is a
prohibition of the use of physical or moral compulsion to
extort communications from him, and not an exclusion of his
body as evidence, when it may be material. It would be the
same as if the offender apprehended was a thief and the
object stolen by him may be used as evidence against him.
The substance was taken from the body of the defendant
without his objection, the examination was made by
competent medical authority and the result showed that the
defendant was suffering from said disease.
As was suggested by Judge Lobingier, had the defendant
been found with stolen property upon his person, there
certainly could have been no question had the stolen property
been taken for the purpose of using the same as evidence
against him. So also if the clothing which he wore, by reason
of blood stains or otherwise, had furnished evidence of the
commission of a crime, there certainly could have been no
objection to taking such for the purpose of using the same as
proof. No one would think of even suggesting that stolen
property and the clothing in the case indicated, taken from
the defendant, could not be used against him as evidence,
without violating the rule that a person shall not be required
to give testimony against himself.
The question presented by the defendant below and repeated
in his first assignment of error is not a new question, either to
the courts or authors.

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 POLITICAL LAW REVIEW
In the case of Holt vs. U.S. (218 U.S., 245), Mr. Justice Holmes, Villaflor vs. Summers
speaking for the court upon this question, said: G.R. No. 16444. September 8, 1920
But the prohibition of compelling a man in a criminal court to
be a witness against himself, is a prohibition of the use of Facts:
physical or moral compulsion, to extort communications from
➔ Petitioner Villaflor was charged with the crime of
him, not an exclusion of his body as evidence, when it may be
adultery.
material. The objection, in principle, would forbid a jury (court)
➔ The trial judge ordered the petitioner to subject herself
to look at a person and compare his features with a
into physical examination to test whether or not she was
photograph in proof.
pregnant to prove the determine the crime of adultery
being charged to her.
Moreover, we are not considering how far a court would go in
➔ Herein petitioner refused to such physical examination
compelling a man to exhibit himself, for when he is exhibited,
interposing the defense that such examination was a
whether voluntarily or by order, even if the order goes too far,
violation of her constitutional rights against self-
the evidence if material, is competent.
incrimination.
To admit the doctrine contended for by the appellant might
Issue: Whether or Not the physical examination was a
exclude the testimony of a physician or a medical expert who
violation of the petitioner’s constitutional rights against self-
had been appointed to make observations of a person who
incrimination.
plead insanity as a defense, where such medical testimony
was against necessarily use the person of the defendant for
Held: No. It is not a violation of her constitutional rights.
the purpose of making such examination.

The rule that the constitutional guaranty, that no person shall

The doctrine contended for by the appellants would also
be compelled in any criminal case to be a witness against
prevent the courts from making an examination of the body
himself, is limited to a prohibition against compulsory
of the defendant where serious personal injuries were alleged
testimonial self-incrimination. The corollary to the proposition
to have been received by him. The right of the courts in such
is that, an ocular inspection of the body of the accused is
cases to require an exhibit of the injured parts of the body has
permissible.
been established by a long line of decisions.

The sole legal issue from the admitted facts is whether the
The prohibition contained in section 5 of the Philippine Bill
compelling of a woman to permit her body to be examined
that a person shall not be compelled to be a witness against
by physicians to determine if she is pregnant, violates that
himself, is simply a prohibition against legal process to extract
portion of the Philippine Bill of Rights and that portion of our
from the defendant's own lips, against his will, an admission
Code of Criminal Procedure which find their origin in the
of his guilt.
Constitution of the United States and practically all state
constitutions and in the common law rules of evidence,
The doctrine contended for by appellant would prohibit
providing that no person shall be compelled in any criminal
courts from looking at the fact of a defendant even, for the
case to be a witness against himself.
purpose of disclosing his identity. Such an application of the
prohibition under discussion certainly could not be permitted.
The maxim of the common law, Nemo tenetur seipsum
accusare, was recognized in England in early days, but not in
Such an inspection of the bodily features by the court or by
the other legal systems of the world, in a revolt against the
witnesses, cannot violate the privilege granted under the
thumbscrew and the rack. A legal shield was raised against
Philippine Bill, because it does not call upon the accused as a
odious inquisitorial methods of interrogating an accused
witness — it does not call upon the defendant for his
person by which to extort unwilling confessions with the ever
testimonial responsibility. Mr. Wigmore says that evidence
present temptation to commit the crime of perjury.
obtained in this way from the accused, is not testimony but
his body itself. Nemo tenetur seipsum accusare – “no man is
The kernel of the privilege as disclosed by the text writers was
bound to accuse himself”
testimonial compulsion.

Doctrine: The prohibition of self-incrimination in the Bill of

As forcing a man to be a witness against himself was deemed
Rights is a prohibition of the use of physical or moral
contrary to the fundamentals of republican government, the
compulsion to extort communications from him, and not an
principle was taken into the American Constitutions, and from
exclusion of his body as evidence, when it may be material. It
the United States was brought to the Philippine Islands, in
would be the same as if the offender apprehended was a thief
exactly as wide — but no wider — a scope as it existed in old
and the object stolen by him may be used as evidence against
English days. The provision should here be approached in no
him.
blindly worshipful spirit, but with a judicious and a judicial
appreciation of both its benefits and its abuses.

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 POLITICAL LAW REVIEW
Perhaps the best way to test the correctness of our position is
to go back once more to elements and ponder on what is the
prime purpose of a criminal trial. As we view it, the object of
having criminal laws is to purge the community of persons
who violate the laws to the great prejudice of their fellow men.
Criminal procedure, the rules of evidence, and constitutional
provisions, are then provided, not to protect the guilty but to
protect the innocent. No rule is intended to be so rigid as to
embarrass the administration of justice in its endeavor to
ascertain the truth.
No accused person should be afraid of the use of any method
which will tend to establish the truth. For instance, under the
facts before us, to use torture to make the defendant admit
her guilt might only result in including her to tell a falsehood.
But no evidence of physical facts can for any substantial
reason be held to be detrimental to the accused except in so
far as the truth is to be avoided in order to acquit a guilty
person.
Fully conscious that we are resolving a most extreme case in
a sense, which on first impression is a shock to one's
sensibilities, we must nevertheless enforce the constitutional
provision in this jurisdiction in accord with the policy and
reason thereof, undeterred by merely sentimental influences.
Once again we lay down the rule that the constitutional
guaranty, that no person shall be compelled in any criminal
case to be a witness against himself, is limited to a prohibition
against compulsory testimonial self-incrimination.
The corollary to the proposition is that, an ocular inspection
of the body of the accused is permissible. The proviso is that
torture of force shall be avoided. Whether facts fall within or
without the rule with its corollary and proviso must, of course,
be decided as cases arise.
It is a reasonable presumption that in an examination by
reputable and disinterested physicians due care will be taken
not to use violence and not to embarrass the patient any more
than is absolutely necessary. Indeed, no objection to the
physical examination being made by the family doctor of the
accused or by doctor of the same sex can be seen.
Doctrine: The rule that no person shall be compelled in any
criminal case to be a witness against himself, is limited to a
prohibition against compulsory testimonial self-incrimination.
The corollary to the proposition is that, an ocular inspection
of the body of the accused is permissible.
Are transcription or signature a pure mechanical act?
In the case of Beltran vs. Samson, transcription or signature
are not just pure mechanical acts, because writing is
something more than moving the body, or the hands, or the
fingers. It is not purely a mechanical act because writing
requires the application of intelligence and attention.
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In the case at bar, the witness is compelled to write and create
by means of the art of writing, evidence which does not exist,
and which may identify as a falsifier.
Where does section 17 apply?
The prohibition applies to the compulsion for the production
of documents, papers, and chattels that may be used as
evidence against the witness. The only exception is when the
state has a right to inspect the same.
Is the right available during Preliminary investigation?
Yes. In the case of Beltran vs Samson; it will be so absurd to
limit it to trial.
Beltran vs. Samson
G.R. No. 32025. September 25, 1929
Facts:
➔ This is a petition for a writ of prohibition, wherein the
petitioner complains that the respondent judge ordered
him to appear before the provincial fiscal to take
dictation in his won handwriting from the latter.
➔ The order was given upon petition of said fiscal for the
purpose of comparing the petitioner's handwriting and
determining whether or not it is he who wrote certain
documents supposed to be falsified.
Issue: W/N petitioner may be compelled to take dictation in
his own handwriting to determine if he is the one who wrote
certain documents supposed to be falsified
Held: NO. As to the extent of [the right against self-
incrimination], it should be noted first of all, that the English
text of the Jones Law, which is the original one, reads as
follows: "Nor shall he be compelled in any criminal case to be
a witness against himself." This text is not limited to
declaration but says "to be a witness."
The question, then, is reduced to a determination of whether
the writing from the fiscal's dictation by the petitioner for the
purpose of comparing the latter's handwriting and
determining whether he wrote certain documents supposed
to be falsified, constitutes evidence against himself within the
scope and meaning of the constitutional provision under
examination.
Whenever a defendant, at the trial of his case, testifying in his
own behalf, denies that a certain writing or signature is in his
own hand, he may on cross-examination but compelled to
write in open court in order that the jury may be able to
compare his handwriting with the one in question. It was so
held in the case of Bradford vs. People inasmuch as the
defendant, in offering himself as witness in his own behalf,
waived his personal privileges.
But the cases so resolved cannot be compared to the one now
before us. We are not concerned here with a defendant, for it
does not appear that any information was filed against the
 POLITICAL LAW REVIEW
petitioner for the supposed falsification, and still less is it a
question of a defendant on trial testifying and under cross-
examination. This is only an investigation prior to the
information and with a view to filing it.
We cite this case particularly because the court there given
prominence to the defendant's right to decline to write, and
to the fact that he voluntarily wrote.
Writing is something more than moving the body, or the
hand, or the fingers; writing is not a purely mechanical and
attention; and in the case at bar writing means that the
petitioner herein is to furnish a means to determine or not he
is the falsifier, as the petition of the respondent fiscal clearly
states. Except that it is more serious, we believe the present
case is similar to that of producing documents of chattels in
one's possession.
We say that, for the purposes of the constitutional privilege,
there is a similarity between one who is compelled to produce
a document, and one who is compelled to furnish a specimen
of his handwriting, for in both cases, the witness is required to
furnish evidence against himself.
Doctrine: This constitutional prohibition embraces the
compulsory preparation and creation by a witness of self-
incriminatory evidence by means of a testimonial act. "For
though the disclosure thus sought" (the production of
documents and chattels) "be not oral in form, and though the
documents or chattels be already in existence and not desired
to be first written and created by a testimonial act or utterance
of the person in response to the process, still no line can be
drawn short of any process which treats him as a witness;
because in virtue of it he would be at any time liable to make
oath to the identity or authenticity or origin of the articles
produced." In the case before us, writing is something more
than moving the body, or hand, or fingers; writing is not
purely mechanical act; it requires the application of
intelligence and attention; writing means for the petitioner
here to furnish, through a testimonial act, evidence against
himself.
Chavez vs. Court of Appeals
G.R. No. L-29169. August 19, 1968
Facts:
➔ The thrust of petitioner's case is that he is entitled, on
habeas corpus, to be freed from imprisonment upon the
ground that in the trial which resulted in his conviction,
he was denied his constitutional right not to be
compelled to testify against himself.
➔ The indictment upon which the judgment of conviction
was rendered was for qualified theft of a motor vehicle.
➔ Accused were the following: Petitioner herein, Roger
Chavez, Ricardo Sumilang alias "Romeo Vasquez",
Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo
alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo
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Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe
and Paul Doe.
➔ The trial court gave credence to Sumilang's averment
that he paid good money for the car, and was thus
cleared. So was Asistio whom the trial court believed to
be a mere buyer of the car. The court found no case
against "Pita" and "Lory". "Ging" was also acquitted for
he was not identified in court.
➔ Hence, among the 9 accused, only Roger Chavez was not
acquitted by the trial court. As to him, the court had this
to say: "Roger Chavez does not offer any defense. As a
matter of fact, his testimony as witness for the
prosecution establishes his guilt beyond reasonable
doubt." The trial court branded him "a self-confessed
culprit."
➔ To note, petitioner was called by the prosecution as the
first witness to testify for the People during the first day
of trial. Petitioner objected and invoked the privilege of
self-incrimination. This he broadened by the clear-cut
statement that he will not testify. But petitioner's
protestations were met with the judge's emphatic
statement that it "is the right of the prosecution to ask
anybody to act as witness on the witness-stand including
the accused," and that defense counsel "could not object
to have the accused called on the witness stand."
➔ The trial court then came to the conclusion that if
Johnson Lee was not paid for his car, he had no one but
Roger Chavez to blame.
Issue: W/N there was a violation of petitioner’s right against
self-incrimination
Held: YES. Petitioner, as accused, occupies a different tier of
protection from an ordinary witness. Whereas an ordinary
witness may be compelled to take the witness stand and claim
the privilege as each question requiring an incriminating
answer is shot at him, an accused may altogether refuse to
take the witness stand and refuse to answer any and all
questions. For, in reality, the purpose of calling an accused as
a witness for the People would be to incriminate him. The rule
positively intends to avoid and prohibit the certainly inhuman
procedure of compelling a person "to furnish the missing
evidence necessary for his conviction." This rule may apply
even to a co-defendant in a joint trial.
Compulsion as it is understood here does not necessarily
connote the use of violence; it may be the product of
unintentional statements. Pressure which operates to
overbear his will, disable him from making a free and rational
choice, or impair his capacity for rational judgment would in
our opinion be sufficient. So is moral coercion "tending to
force testimony from the unwilling lips of the defendant."
The judge's words — "But surely, counsel could not object to
have the accused called on the witness-stand" — wielded
authority. By those words, petitioner was enveloped by a
coercive force; they deprived him of his will to resist.
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Thus, the record discloses that by leading questions Chavez,
the accused, was made to affirm his statement given to the
NBI agents, and this statement detailed the plan and
execution thereof by Sumilang (Vasquez), Asistio and himself
to deprive the Chinese of his Thunderbird car. The trial court
described Chavez as the "star witness for the prosecution."
It cannot be said that he has waived his right. He did not
volunteer to take the stand and in his own defense; he did not
offer himself as a witness; on the contrary, he claimed the right
upon being called to testify. If petitioner nevertheless
answered the questions in spite of his fear of being accused
of perjury or being put under contempt, this circumstance
cannot be counted against him.
There is therefore no waiver of the privilege. "To be effective,
a waiver must be certain and unequivocal, and intelligently,
understandably, and willingly made; such waiver follows only
where liberty of choice has been fully accorded. After a claim
a witness cannot properly be held to have waived his privilege
on vague and uncertain evidence."
Doctrine: Petitioner, as accused, occupies a different tier of
protection from an ordinary witness. Whereas an ordinary
witness may be compelled to take the witness stand and claim
the privilege as each question requiring an incriminating
answer is shot at him, an accused may altogether refuse to
take the witness stand and refuse to answer any and all
questions.
People vs. Gallarde
G.R. No. 133025. February 27, 2000
Facts:
➔ In the evening of 26 May 1997, at the house of spouses
Talan their neighbors converged.
➔ Among them were Radel Gallarde, Francisco, Renato,
Edwin, all surnamed Fernandez.
➔ Idling by was Editha, 10 year old daughter of spouses
Talan.
➔ After a while, Roger stood up and invited Jaime and
Gallarde to dine in the kitchen. As they partook of the
meal, Gallarde suddenly left. Jaime, too, stepped out of
the kitchen to urinate. Outside the house, he chanced
upon Gallarde and Editha talking to each other.
➔ Jaime whistled at Gallarde but instead of minding him,
the latter sprinted towards the road leading to his house.
➔ Thereafter, Editha entered the kitchen and took hold of
a kerosene lamp. Editha answered that she would look
for Gallarde. Soon Editha left enroute to where Gallarde
fled.
➔ By 10:00 p.m., the drinking buddies had dispersed but
Jaime, Francisco, Edwin and Rose regrouped at Renato's
place where they talked and relaxed.
➔ Moments later, Roger arrived and informed them that
Editha was missing.
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➔ Roger asked the group to help look for her. Elena Talan
informed his uncle, Barangay Ex-kagawad Mario
Fernandez, about her daughter's disappearance.
➔ When Jaime mentioned that Gallarde was the last person
he saw talking to Editha, the searchers went back to the
house of Gallarde. The searchers found Gallarde
squatting with his short pants at the toilet about 6
meters away from Gallarde's house; his hands and knees
covered with soil.
➔ Back in the field, Virginia Fernandez tripped on a wet
ground.
➔ The searchers, thereafter, noticed disheveled grasses,
and a wide hole among the disheveled grass. When Ex-
kagawad Fernandez forthwith scratched some earth
aside and then Editha's hand pitted out. Fernandez
screamed in terror. Meantime, Barangay Captain
Mendoza heard shouts saying: "She is here, she is now
here already dead!"
➔ Mindful of Gallarde's safety, Brgy. Captain Mendoza
decided to bring Gallarde to the municipal building. On
their way though, they met policemen on board a
vehicle. He flagged them down and turned over the
person of Gallarde, saying: "Here is the suspect in the
disappearance of the little girl. Since you are already
here, I am giving him to you."
➔ The policemen together with Gallarde proceeded to
where the people found Editha. One of the policemen
shoved more soil aside. The lifeless Editha was
completely naked when she was recovered. A picture of
Gallarde was taken without any counsel present.
➔ On 24 June 1997, Gallarde was charged with the special
complex crime of rape with homicide.
Issue: Whether The taking of pictures of an accused violates
his constitutional right against self- incrimination.
HELD: We cannot agree with the trial court's rejection of the
photographs (Exhibits "I," "J" and "K") taken of GALLARDE
immediately after the incident on the ground that "the same
were taken while [GALLARDE] was already under the mercy of
the police."
The constitutional right of an accused against self-
incrimination proscribes the use of physical or moral
compulsion to extort communications from the accused and
not the inclusion of his body in evidence when it may be
material.
Purely mechanical acts are not included in the prohibition as
the accused does not thereby speak his guilt, hence the
assistance and guiding hand of counsel is not required. The
essence of the right against self- incrimination is testimonial
compulsion, that is, the giving of evidence against himself
through a testimonial act.
The taking of pictures of an accused even without the
assistance of counsel, being a purely mechanical act, is not a
violation of his constitutional right against self-incrimination.
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The constitutional right of an accused against self-
incrimination proscribes the use of physical or moral
compulsion to extort communications from the accused and
not the inclusion of his body in evidence when it may be
material. Purely mechanical acts are not included in the
prohibition as the accused does not thereby speak his guilt,
hence the assistance and guiding hand of counsel is not
required.
The essence of the right against self-incrimination is
testimonial compulsion, that is, the giving of evidence against
himself through a testimonial act.
Hence, it has been held that a woman charged with adultery
may be compelled to submit to physical examination to
determine her pregnancy; and an accused may be compelled
to submit to physical examination and to have a substance
taken from his body for medical determination as to whether
he was suffering from gonorrhea which was contracted by his
victim; to expel morphine from his mouth; to have the outline
of his foot traced to determine its identity with bloody
footprints; and to be photographed or measured, or his
garments or shoes removed or replaced, or to move his body
to enable the foregoing things to be done.
Doctrine: The constitutional right of an accused against self-
incrimination proscribes the use of physical or moral
compulsion to extort communications from the accused and
not the inclusion of his body in evidence when it may be
material.
Purely mechanical acts are not included in the prohibition as
the accused does not thereby speak his guilt, hence the
assistance and guiding hand of counsel is not required. The
essence of the right against self- incrimination is testimonial
compulsion, that is, the giving of evidence against himself
through a testimonial act.
Can the right be invoked during non-criminal proceedings?
Yes. In the case of Pascual vs BME. The constitutional
guarantee extends to civil and administrative proceedings
which possess a criminal or penal character; penal in nature
which imposes penalties.
Pascual vs. Board of Medical Examiners
G.R. No. L-25018. May 26, 1969
Facts:
➔ On February 1, 1965, Arsenio Pascual, Jr., petitioner-
appellee, filed with the Court of First Instance of Manila
an action for prohibition with prayer for preliminary
injunction against the Board of Medical Examiners, now
respondent-appellant.
➔ It was alleged therein that at the initial hearing of an
administrative case for alleged immorality, counsel for
complainants announced that he would present as his
first witness herein petitioner-appellee, who was the
respondent in such malpractice charge.
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➔ Pascual, through counsel, made of record his objection,
relying on the constitutional right to be exempt from
being a witness against himself.
➔ The Board of Examiners, took note of such a plea, at the
same time stating that at the next scheduled hearing, on
February 12, 1965, Pascual would be called upon to
testify as such witness, unless in the meantime he could
secure a restraining order from a competent authority.
➔ Pascual then alleged that in thus ruling to compel him to
take the witness stand, the Board of Examiners was
guilty, at the very least, of grave abuse of discretion for
failure to respect the constitutional right against self-
incrimination, the administrative proceeding against
him, which could result in forfeiture or loss of a privilege,
being quasi-criminal in character.
➔ With his assertion that he was entitled to the relief
demanded consisting of perpetually restraining the
respondent Board from compelling him to testify as
witness for his adversary and his readiness or his
willingness to put a bond, he prayed for a writ of
preliminary injunction and after a hearing or trial, for a
writ of prohibition.
➔ On February 9, 1965, the lower court ordered a writ of
preliminary injunction issued against the respondent
Board commanding it to refrain from hearing or further
proceeding with such an administrative case.
➔ Respondent Board, while admitting the facts stressed
that it could call Pascual to the witness stand and
interrogate him, the right against self- incrimination
being available only when a question calling for an
incriminating answer is asked of a witness.
➔ A motion for intervention by Salvador Gatbonton and
Enriqueta Gatbonton, the complainants in the
administrative case for malpractice against Pascual
asking that they be allowed to file an answer as
intervenors.
➔ Such a motion was granted and an answer in
intervention was duly filed by them on March 23, 1965
sustaining the power of respondent Board, which for
them is limited to compelling the witness to take the
stand, to be distinguished, in their opinion, from the
power to compel a witness to incriminate himself. They
likewise alleged that the right against self- incrimination
cannot be availed of in an administrative hearing.
➔ A decision was rendered by the lower court on August 2,
1965, finding the claim of Pascual to be well-founded
and prohibiting respondent Board "from compelling the
petitioner to act and testify as a witness for the
complainant in said investigation without his consent
and against himself."
➔ Hence this appeal both by respondent Board and
intervenors, the Gatbontons
Issue: Whether the right against self- incrimination can be
availed of in an administrative hearing.
 POLITICAL LAW REVIEW
Held: Yes. The right against self-incrimination is equally
applicable to a proceeding that could possibly result in the
loss of the privilege to practice the medical profession.
The Court held that in an administrative hearing against a
medical practitioner for alleged malpractice, respondent
Board of Medical Examiners cannot, consistently with the self-
incrimination clause, compel the person proceeded against to
take the witness stand without his consent.
It further stated that in accordance with the well-settled
principle that "the accused in a criminal case may refuse, not
only to answer incriminatory questions, but, also, to take the
witness stand." which is also applicable in the case at bar.
In Cabal v. Kapunan, the SC held that a respondent in an
administrative proceeding under the Anti-Graft Law cannot be
required to take the witness stand at the instance of the
complainant. So it must be in this case, where petitioner was
sustained by the lower court in his plea that he could not be
compelled to be the first witness of the complainants, he
being the party proceeded against in an administrative charge
for malpractice.
Furthermore, The constitutional guarantee against self-
incrimination is not limited to that of allowing a witness to
object to questions the answers to which could lead to a penal
liability being subsequently incurred. The constitutional
guarantee protects as well the right to silence. As far back as
1905, we had occasion to declare: "The accused has a perfect
right to remain silent and his silence cannot be used as a
presumption of his guilt."
In Chavez v. Court of Appeals, speaking through Justice
Sanchez, we reaffirmed the doctrine anew that is the right of
a defendant "to forego testimony, to remain silent, unless he
chooses to take the witness stand—with undiluted, unfettered
exercise of his own free genuine will."
Doctrine: The principle against self-incrimination is equally
applicable to a proceeding that could possibly result in the
loss of the privilege to practice the medical profession.
Note: Right to self-incrimination is identified with right to
privacy.
According to Justice Douglas: "The Fifth Amendment in its
Self-Incrimination clause enables the citizen to create a zone
of privacy which the government may not force to surrender
to his detriment." So also with the observation of the late
Judge Frank who spoke of "a right to a private enclave where
he may lead a private life. That right is the hallmark of our
democracy
According to Justice Laurel, how should this provision be
construed?
It should be construed with the utmost liberality in favor of
the right of the individual intended to be served
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Mapa, Jr. vs. Sandiganbayan
G.R. no. 100295. April 26, 1994
Facts:
➔ On January 20, 1987, petitioners Placido L. Mapa and
Lorenzo Vergara, together with Gregorio Ma. Araneta III,
Fernando Balatbat, Ramon Aviado, Jr., Dominador Lopez,
Jr., Fernando Maramag, Jr., and Jose Crisanto, Jr., were
charged with violation of the Anti-Graft and Corrupt
Practices Act (R.A. 3019).
➔ In the interim, the late President Ferdinand E. Marcos and
Mrs. Imelda R. Marcos were charged in New York with
violations of the Racketeer Infuenced and Corrupt
Organization Act (RICO) by transporting to the United
States and concealing the investment of money through
cronies and offshore organizations.
➔ To insure the conviction of the Marcoses, the prosecution
solicited the testimonies of witnesses. Among these
witnesses were petitioners Vergara and Mapa. Petitioner
Vergara was interviewed in 1987 by PCGG lawyers
Kendall and Severina Rivera and by United States
Prosecutor Charles La Bella.
➔ Petitioner Mapa was interviewed on November 14, 1988
and August 11, 1989 also by Prosecutor La Bella at the
behest of former Secretary of Justice Sedfrey Ordonez
and former PCGG Chairman Mateo Caparas.
➔ After their interviews, petitioners were requested to
testify in the said RICO cases against the former First
Couple. They were promised immunity from further
criminal prosecution. They agreed.
➔ On May 16, 1990, the Philippine Government through the
PCGG, and the petitioners formalized their separate
agreements in writing.
➔ On the same day, May 16, 1990, former PCGG Chairman
Mateo Caparas wrote to petitioner Mapa informing him
that among the criminal cases which the Republic agrees
to cause the dismissal of the case entitled "People of the
Philippines vs. Mr. Gregorio Ma. Araneta III, et. al., "
Criminal Case No. 11980 of the Sandiganbayan. A similar
letter was sent to petitioner Vergara.
➔ The petitioners complied with their respective
undertaking. They travelled to New York to testify
against the Marcoses.
➔ Despite their availability and willingness to testify, the US
prosecutors decided not to call them to the witness
stand.
➔ The result was a debacle for the US prosecutors and the
PCGG. Mrs. Imelda Marcos was acquitted by the jury.
Earlier, former President Marcos was delisted as an
accused as he died in the course of the proceedings.
➔ On October 22, 1990. on the basis of the immunity
granted to them, petitioners filed a Joint Motion to
Dismiss for their Criminal case.
➔ Despite PCGG's concurrence, the respondent court
denied the Joint Motion to Dismiss, by a vote of 4-1.
➔ Petitioners were undaunted. On April 8, 1991, they filed
a Motion for Reconsideration.
 POLITICAL LAW REVIEW
➔ On May 23, 1991, by a Supplement to the Motion for other information compelled under the order (or any
Reconsideration. The deputized prosecutors again filed information directly or indirectly derived from such testimony
a Manifestation reiterating PCGG's acquiescence to or other information) may be used against the witness in any
petitioners' Motion for Reconsideration. Respondent criminal case." In contrast, under section 5, the friendly
court, however, refused to budge from its prior position. witness is completely immunized from prosecution.
It denied petitioners' motions.
➔ Hence, petitioners charge the respondent court with The case at bench involves an exercise of power by PCGG
grave abuse of discretion in denying their Motion to under section 5. Petitioners are not hostile but friendly
Dismiss and Motion for Reconsideration. witnesses. It is not disputed that they furnished information
➔ The proceedings before us took a new wrinkle with the to the PCGG during their interviews conducted by PCGG
appointment of Atty. David Castro as Chairman of PCGG. lawyers and US prosecutor La Bella. Due to their cooperation,
In its Comment dated January 6, 1992, the PCGG they were extended immunity from prosecution by the PCGG.
somersaulted from its stance supporting the petitioners. In return, they flew to New York to testify in the RICO trial of
Imelda Marcos. As they were witnesses for the prosecution,
➔ In its Comment, it stated that:
their expenses were shouldered by the PCGG itself. At the last
1. The Presidential Commission on Good Government
minute, however, US prosecutor La Bella decided to dispense
has indeed granted Messrs. Placido L. Mapa, Jr., and
with their testimony. The rest is history. The prosecution failed
Jesus Lorenzo Vergara immunity from investigation,
to convict Mrs. Marcos.
prosecution and punishment for any offense for
which civil and criminal cases have been or to be
Section 5 of E.O. No. 14, as amended, confers on the PCGG
􏰈led against them within the purview of Executive
the power to grant immunity alone and on its own authority.
Orders Nos. 1, 2, 14 and 14-A but such immunity is
The exercise of the power is not shared with any other
conditional.
authority. Nor is its exercise subject to the approval or
2. The conditions for giving such immunity is the
disapproval of another agency of government. The basic
cooperation said petitioners shall give to said
reason for vesting the power exclusively on the PCGG lies in
Commission by way of information and testimony
the principles of separation of power. The decision to grant
in cases now pending or to be 􏰈led before the
immunity from prosecution forms a constituent part of the
Sandiganbayan against other defendants therein to
prosecution process.
prove the latter's acquisition or accumulation of
property or properties in violation of existing laws.
The SC held that in reviewing the grant of a section 5
3. Failure on the part of petitioners Placido Mapa, Jr.
immunity made by the PCGG to the petitioners, the power of
and Jesus Vergara to testify in favor of the
the respondent court can go no further than to pass upon its
government and against other defendants on
procedural regularity. The respondent court should only
matters referred to in the immediately preceding
ascertain:
paragraph nullifies the immunity granted to both
(a.) whether the person claiming immunity has provided
defendants
information or testimony in any investigation conducted
➔ It further stressed that "[T]he granting of 'Immunity' from
by the PCGG in the discharge of its functions;
criminal liability and/or prosecution is a matter subject
(b.) whether in the bona fide judgment of the PCGG, the
to the court's judicious determination and approval, after
information or testimony given would establish the
applying the test of compliance and the standard of
unlawful manner in which the respondent, defendant or
reasonableness with the rigid requirements for such
accused has acquired or accumulated the property or
grant under Section 5 of Executive Order No. 14-A, as
properties in question; and
amended." The Solicitor General defended the stance of
(c.) whether in the bona fide judgment of the PCGG, such
the PCGG and the respondent court.
information or testimony is necessary to ascertain or
prove the guilt or civil liability of the respondent,
Issue: Whether petitioners who are cooperative witnesses,
defendant or accused.
who have been granted immunity still have the right to be free
from further prosecution despite not being able to testify as
Respondent court cannot substitute its judgment to the
agreed upon.
discretion of the PCGG without involving itself in prosecution
and without ceasing to be a court catering untilted justice.
Held: Yes.
Applying this standard, we hold that the respondent court
committed grave abuse of discretion when it denied
Under the powers granted to PCGG by EO no. 14, Section 4
petitioners' motion to dismiss based on a claim of immunity
thereof deals with the power which PCGG can use to compel
granted by the PCGG under section 5 of E.O. 14, as amended.
an unwilling witness to testify. On the other hand, section 5 of
speaks of the power which PCGG can wield to secure
The records show that petitioners provided information to the
information from a friendly witness. Under section 4, the
PCGG relating to the prosecution of the RICO cases against
hostile witness compelled to testify is not immunized from
the Marcoses in New York. They gave the information in the
prosecution. He can still be prosecuted but "no testimony or

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 POLITICAL LAW REVIEW
course of interviews conducted by PCGG lawyers Kendall and
Severina Rivera and US prosecutor Charles La Bella. They
collaborated with the prosecution.
Sec. 5 requires that the information should relate to "any case"
which PCGG can prosecute as mandated by the Constitution
and E.O. Nos. 1, 2, 14 and 14-A. It does not limit said
information to be given only in a case where the informant is
himself an accused or a respondent. Such a reading adopted
by the respondent court is unduly restrictive of the
intendment of section 5 of E.O. No. 14, as amended, even as
it is clearly in contravention of its plain language.
Contrary to the ruling of the respondent court, the failure of
petitioners to testify in the RICO cases against the Marcoses
in New York can not nullify their immunity. They have satisfied
the requirements both of the law and the parties'
implementing agreements. Under section 5 of E.O. No. 14, as
amended, their duty was to give information to the
prosecution, and they did.
Their failure to testify was not of their own making. It was
brought about by the decision of the US prosecutors who may
have thought that their evidence was enough to convict the
Marcoses. Since petitioners' failure to testify was not of their
own choosing nor was it due to any fault of their own, justice
and equity forbid that they be penalized by the withdrawal of
their immunity.
Indeed, the PCGG itself adopted the posture that the
immunity of petitioners stayed and should not be disturbed.
It joined the motion to dismiss filed by petitioners in the
respondent court. When the respondent court denied the
motion, PCGG stuck to its previous position as it again joined
the petitioners in their motion for reconsideration. It is only in
this petition for review on certiorari that PCGG, after a change
of Chairman, flip-flopped in its position.
We also rule that there was nothing irregular when PCGG
granted a section 5 immunity to petitioners while they were
already undergoing trial in Criminal Case No. 11960. Section
5 of E.O. 14, as amended, does not prohibit the PCGG from
granting immunity to persons already charged in court and
undergoing trial. As long as the privilege of immunity so given
will in the judgment of the PCGG assist it in attaining its
greater objectives, the PCGG is well within legal grounds to
exercise this power at any stage of the proceedings.
This section 5 immunity frees and releases one from liability,
and as it inures to the benefit of an accused, it can be invoked
at any time after its acquisition and before his final conviction.
Our regard for the rights of an accused dictates this result.
Thus, we have consistently held that laws that decriminalize
an act or a grant of amnesty may be given retroactive effect.
They constitute a bar against the further prosecution of their
beneficiaries' regardless of the appearance of their guilt.
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The grant of section 5 immunity must not be strictly construed
against the petitioners. It simplistically characterized the grant
as special privilege, as if it was gifted by the government, ex
gratia. In taking this posture, it misread the raison d'etre and
the long pedigree of the right against self-incrimination vis-
a- vis immunity statutes.
Immunity statutes in varying shapes were enacted which
would allow the government to compel a witness to testify
despite his plea of the right against self- incrimination. To
insulate these statutes from the virus of unconstitutionality, a
witness is given what has come to be known as transactional
or a use-derivative-use immunity, as heretofore discussed.
Quite clearly, these immunity statutes are not a bonanza from
the government. Those given the privilege of immunity paid
a high price for it — the surrender of their precious right to
be silent. Our hierarchy of values demands that the right
against self-incrimination and the right to be silent should be
accorded greater respect and protection. Laws that tend to
erode the force of these preeminent rights must necessarily
be given a liberal interpretation in favor of the individual. The
government has a right to solve crimes but it must do it,
rightly.
Doctrine: Immunity statutes in varying shapes were enacted
which would allow the government to compel a witness to
testify despite his plea of the right against self- incrimination.
What are the conditions that must concur to completely
invoke the immunity to witnesses provided under PD 749?
(1.) The information must refer to consummated violations
of any of the above-mentioned provisions of law, rules
and regulations;
(2.) The information and testimony are necessary for the
conviction of the accused public officer;
(3.) Such information and testimony are not yet in the
possession of the State;
(4.) Such information and testimony can be corroborated on
its material points;
(5.) The informant or witness has not been previously
convicted of a crime involving moral turpitude."
What are the two types of statutory immunity granted to a
witness?
(1.) Transactional immunity - is broader in the scope of its
protection. By its grant, a witness can no longer be
prosecuted for any offense whatsoever arising out of the
act or transaction.
(2.) Used-and-derivative-use immunity - a witness is only
assured that his or her particular testimony and evidence
derived from it will not be used against him or her in a
subsequent prosecution.
NOTE: A power to compel testimony is not absolute. It has a
number of exemptions from the testimonial duty. The most
important is the Fifth Amendment privilege against
compulsory self-incrimination- The privilege reflects a
complex of our fundamental values and aspirations, and
 POLITICAL LAW REVIEW
marks an important advance in the development of our
liberty. It can be asserted in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory; and it
protects against any disclosures that the witness reasonably
believes could be used in a criminal prosecution or could lead
to other evidence that might be so used.

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