The travesty of double jeopardy

The rule has always struck me as unfair and unjust. When the accused wins in a criminal case, the “not guilty” decision is final and cannot be appealed. But when the accused loses, the “guilty” verdict can be appealed all the way to the Supreme Court.

In November 2018, the Sandiganbayan found Imelda Marcos guilty of graft and sentenced her to 77 years of imprisonment. Imelda was allowed to appeal in the Supreme Court. In December 2018, the Sandiganbayan found former senator Bong Revilla not guilty of plunder. His acquittal was deemed final and appeal was not allowed.

The reason for the conflicting availability and unavailability of appeal in the two cases is because the Philippines subscribes to the American concept of double jeopardy.

The unfairness of the American concept of double jeopardy unravels when we consider the fact that when a case begins in our Sandiganbayan, the accused only has to succeed in one out of four chances in order to be acquitted: two chances when the Sandiganbayan and the Supreme Court render their decisions, and two additional chances when motions for reconsideration are filed in each court. In contrast, the “People of the Philippines,” the injured party in all criminal cases, have to win in all four in order to clinch a final conviction.

The prohibition against double jeopardy is intended to prevent the government from persecuting a citizen with two or more cases even if only one crime was committed.

In its purest form, double jeopardy only contemplates a situation where the acquittal is made by the highest court. An acquittal by a lower court will not trigger the application of double jeopardy, because the decision can still be appealed. A case that starts in the trial court and ends on appeal in the Supreme Court is considered a single continuous proceeding.

This pure kind of double jeopardy is the rule followed in Japan, Canada, Germany and other countries where “not guilty” decisions by lower courts are appealable to a higher court.

When our country was under Spanish rule, a “not guilty” judgment could be appealed to the Supreme Court. But, under American rule, an expanded concept of double jeopardy was adopted in our country, where an acquittal by a lower court is considered a first jeopardy that bars the filing of an appeal. An appeal is considered a second trial that amounts to a double jeopardy. This American brand of double jeopardy is the concept that was applied in the Revilla case.

The concept is observed in America because its criminal cases undergo a jury trial decided by 12 citizens, and the jury verdict is considered a first jeopardy. Appeal is prohibited because the appeal is decided by a judge, and such proceedings are deemed a second trial.

The imposition of the US concept of double jeopardy in the Philippines came by way of a dubious court decision involving an American, Thomas Kepner, who was a practicing lawyer in Manila in the early 1900s. Kepner was charged with stealing the funds of his client. He was acquitted by the trial court, but the Philippine Supreme Court reversed the decision by convicting him on appeal. The conviction was appealed to the US Supreme Court in Washington, DC which, in turn, reversed the conviction by reasoning out that the trial court’s acquittal barred any appeal under the American concept of double jeopardy. Kepner was acquitted not because he did not steal his client’s money, but because of sheer technicality.

Reading the decision in Kepner vs US (195 US 100 [1904]), one gets the impression that it was a hometown decision made by the US Supreme Court in order to save a US citizen. It is a poorly reasoned out decision justifying the imposition of the American concept of double jeopardy in the Philippines even if we do not have a jury trial. A law journal article, “Trial by Jury and ‘Double Jeopardy’ in the Philippines,” written in 1904 by Lebbeus R. Wilfley, presents superior arguments on why the American concept of double jeopardy is inapplicable in the Philippines.

Ever since the 1904 Kepner decision, Philippine courts and lawyers have blindly followed the rule that an acquittal bars any appeal because of double jeopardy. This is analogous to our propensity to sing “Frosty the Snowman” during Christmas even if it’s entirely inappropriate to our local conditions.

It’s about time our Supreme Court revisited our blind allegiance to a foreign concept that has become an instrument of travesty in our corruption-plagued country.

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