Banzon, Cayetano, Gaspay and Oso Law Office

#21 Dama de Noche St., San Miguel Ave., Mandaluyong City, M.M. Tel. No. (02) 254-8801 Fax: (02) 365-3457 www.bcgolaw.com.ph

26 March 2012

MR. BARACK WILLIAM AQUINO 88 Turtle Islands Street, Manila Dear Mr. Aquino, You request our opinion on whether accused persons who jumped bail may still be legally allowed to cross-examine the witnesses who testified against them. We believe that there is sufficient ground to conclude that accused persons who jumped bail may no longer cross-examine the witnesses who testified against them as such right has been deemed waived. You inform us that three Taiwanese nationals were charged of violating the Dangerous Drugs Act of 2002 (R.A. 9165), to which during their arraignment they entered a plea of not guilty and posted bail. Afterwhich, they all jumped bail. As a result, trial in absentia ensued and in said trial, while the public prosecutor was presenting evidence, the counsel for the defense was allowed to make objections. However, when it was the turn of the defense to conduct the cross-examination, the public prosecutor objected on the ground that the right of the accused to cross-examine the witness through their counsel has been waived as they all jumped bail. The Duty of the Accused The problem in this case stems from the fact that under the law, an accused has the duty to be present in court whenever required to do so.1 That despite the fact that the accused posted bail he must still appear before the court whenever called upon to be present thereat.2 However, he cannot anymore fulfill this duty as he has jumped bail or escaped. In Summary these are the Effects of an escape or jumping bail: 1. 2. 3. 4. 5. accused waives his right to be present on all trials until his custody is regained; trial in absentia will ensue; accused waives his right to present evidence on his behalf; accused waives his right to confront and cross-examine witnesses who testified against him; judgment will be rendered based on the evidence presented by the prosecution.

1 RULES OF COURT, Rule 115, Sec. 1(c ). To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the publications set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification.. 2 RULES OF COURT, Rule 114, Sec. 2 (b). Conditions of the bail; (b) The accused shall appear before the proper court whenever required by the court or these Rules;"

Banzon, Cayetano, Gaspay and Oso Law Office

#21 Dama de Noche St., San Miguel Ave., Mandaluyong City, M.M. Tel. No. (02) 254-8801 Fax: (02) 365-3457 www.bcgolaw.com.ph

First, accused waives his right to be present on all trials An accused is given the right to be present in the trial and defend himself from arraignment to promulgation.3 The fourth sentence of Sec. 1 (c) of Rule 115 of the Revised Rules of Criminal Procedure provides that: ...When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained... Waived his right to be present on all subsequent trial means that the accused has a vested right to attend his trials but once he escapes he doesn't have this right to attend all the trial dates that he is an escapee. The waiver of this right will continue until custody over him is regained, such as, when the accused will be re-arrested or will voluntarily surrender before the court. Second, trial in absentia will ensue The court will not wait for the accused to return and show himself up at his pleasure for fear that the court may violate his right to be present and to defend himself. It is a well settled rule, that trial will proceed despite the absence of the accused, for after all, not being present at the trials is the result of his own acts. The concept of trial in absentia was adequately explained by the Supreme Court in People v. Agbulos4 where it was held that: The prisoner cannot by simply escaping, thwart his continued prosecution and possibly eventual conviction, provided that: 1. he has been arraigned; 2. he has been duly notified of the trial; 3. his failure to appear is unjustified. In the same case, the court explained further the second and third requirements of trial in absentia,on how the prosecution can establish that the the accused has been notified considering that he is hiding. Also, on how can one say that his failure to appear is unjustified. The court explained that: The fugitive is deemed to have waived such notice precisely because he has escaped, and it is also this escape that makes his failure to appear at his trial unjustified. Escape can never be a legal justification. While the accused may waive his right to be present, he may not validly waive his obligation to the court. Waiver of appearance and trial in absentia does not mean that the prosecution is deprived of its right to require the presence of the accused for purposes of identification by its witnesses which is vital for the conviction of the accused. Such waiver of a right of the accused does not mean a release of the accused from his obligation under a bond to appear in court whenever so required.5 Third, accused waives right to present evidence on his behalf and Fourth, accused waives right to confront and cross-examine witnesses who testified against him

3 RULES OF COURT, Rule 115, Section 1(c), supra. 4 People v. Agbulos, 222 RA 196 (1993). 5 Carredo v. People, 183 SCRA 273 (1990).

Banzon, Cayetano, Gaspay and Oso Law Office

#21 Dama de Noche St., San Miguel Ave., Mandaluyong City, M.M. Tel. No. (02) 254-8801 Fax: (02) 365-3457 www.bcgolaw.com.ph

Upon termination of a trial in absentia the court has the duty to rule upon the evidence presented in court. This means that the accused by escaping, waives his right to present evidence on his behalf, confront and cross-examine the witnesses who testified against him. This was explained by the court in Gimenez v. Nazareno6 where it stated that: The court need not wait for the time until the accused who escaped from custody finally decides to appear in court to present evidence and cross-examine the witnesses against him. To allow the delay of proceedings for this purpose is to render ineffective the constitutional provision on trial in absentia. The right to present evidence and right to confront and cross-examine witnesses are personal rights which may be waived. This is the reason why an escapee does not retain his right to cross-examine and confront witnesses who testified against him and why these rights are lost once an accused escapes. Gimenez v. Nazareno7 further explains that: By his failure to appear during the trial of which he had notice, he virtually waived these rights. This Court has consistently held that the right of the accused to confrontation and cross-examination of witnesses is a personal right and may be waived. In the same vein his right to present evidence on his behalf, a right given to him for his own benefit and protection, may be waived by him. Fifth, judgment will be rendered based on the evidence presented by the prosecution This effect of jumping bail is consistent with the fundamental right to due process and the retention of the right to be presumed innocent despite the accused's escape. Gimenez v. Nazareno8 further explained that: Judgement of conviction must still be based upon the evidence presented in court. Such evidence must prove him guilty beyond reasonable doubt. Also, there can be no violation of due process since the accused was given the opportunity to be heard. If the prosecution does not present anything he would be acquitted. It must be noted that the accused persons, despite being aliens is covered by our penal laws both substantively and procedurally as the crime happened in our territory. We find solace in the theory adopted by our country in determining whether a state or legal system has jurisdiction to take cognizance of a criminal case and this is the theory of territoriality. This thoery means that, the state where the crime was committed has jurisdiction to try the case, and its penal code and the penalties prescribed therein will apply. The reason is that the aggrieved state is duty bound to prosecute and punish the offender as his crime affects directly and particularly the dignity, authority and sovereignty of the state where said crime was committed.9 Being bound by our procedural and substantive laws and given the facts and the law, we believe that the three Taiwanese nationals accused of violating R.A. 9165, after jumping bail, may not anymore exercise their right to confront and cross-examine the witnesses who testified against them. Their escape produced the effect of them having waived their right to be present during the trials of their case and they lost their standing in court. By jumping bail, they placed themselves beyond the protection of the law. The court in the dispensation of justice, while affording an accused safeguards to his rights, sees to it that the legitimate interest of the state is at the same time protected.

6 7 8 9

Gimenez v. Nazareno, 160 SCRA 1 (1998). Gimenez v. Nazareno, supra. Gimenez v. Nazareno, supra. Sempio-Diy, Handbook on Conflict of Laws, 2011 ed., p. 186.

Banzon, Cayetano, Gaspay and Oso Law Office

#21 Dama de Noche St., San Miguel Ave., Mandaluyong City, M.M. Tel. No. (02) 254-8801 Fax: (02) 365-3457 www.bcgolaw.com.ph

In consideration of the foregoing, we recommend that the public prosecutor should state before the court that he is mantaining his objection on the move of the defense counsel to confront and cross-examine the witnesses who testified against the accused. Procedurally, the next step will be for the prosecution to present further evidence should there be any. If there are non, judgment will be rendered based solely on the facts, law and evidence presented by the prosecution. The evidence of the prosecution must prove that the accused persons are guilty beyond reasonable doubt in order to sustain a conviction. We trust that you find the foregoing helpful. Should you require our further assistance, please do not hesitate to contact us. Very Truly Yours.

ATTY. EVAREV Z. SHERDOM For the Firm