There are 10 important reasons why surveys should not be conducted and released during the trial.
Surveys should not be used to influence the decision-making process of the senator-judges.
While the impeachment proceedings are recognized to be political in nature and the right to vote is given by the Constitution to senator-judges as representatives of the people, the legal nature of the proceedings, i.e., presentations of facts and evidence, should be recognized and respected.
Otherwise, the Constitution should have given the right to impeach an impeachable officer to the public, in general, through a referendum.
Surveys cannot be considered evidence in a court of law. It cannot be used to support any factual proposition. Neither can the court take judicial notice of factual matters covered by the surveys.
Survey results are highly dependent on a number of factors which are inherently variable depending on who conducts the survey. It includes the number of respondents, their interest or lack of it, bias, knowledge on the subject and the nature of the questions to be asked.
Surveys cannot be validated as to their accuracy. Though there are recognized and accepted statistical methods of conducting surveys, no two surveys can be identical and no two surveys can generate the same results. Simply, the respondents who answered the survey questions cannot be made to account for their answers.
Surveys are only momentary indicators of the predisposition of the respondents which may remarkably change through time, and like a house built on sand can easily be eroded and washed way.
Determination of the guilt or innocence of an impeachable officer is neither a popularity contest nor based on public opinion. It should be based on clear and unmistakable facts, and established and proven evidence.
Senator-judges must be insulated from perceived public opinion so that they can arrive at a well-thought and conscience-based judgment when they cast their vote.
Ideally, like a jury, they should be protected from the free-flowing and uncontrolled direction of public opinion, knowing that what is popular is not always true.
Once a case is pending and being tried in court, the court is expected to pass upon the issues based on law and evidence, and not on mere opinions of individuals who have no opportunity to ascertain the facts.
Surveys though authentic in their documentary form cannot be the subject of examination by the parties since the respondents were not placed on oath. Worse, they are not expected to have personal knowledge of facts which are the subjects of the survey.
Surveys are pure and simple perceptions of nonparties to the case and parties are not expected to use and rely on them. It is simply an unreliable information for purposes of court proceedings.
Rules on evidence
Surveys are not evidence or proof of the facts they claim to establish. Under Rule 128, Section 1 of the Rules of Court “(e)vidence is the means sanctioned by the rules in a judicial proceeding to establish the truth as to a matter of fact.”
Our rules of evidence lay down a very high standard when it comes to evidence. It requires no less than evidence that establishes the TRUTH. Evidence that establishes the truth is only that which supports a factual proposition in a case.
Immaterial, irrelevant
Outside of the facts outlined and alleged in the complaint or accusatory information there is nothing to prove and for that reason it is useless, immaterial and irrelevant to the case.
Hearsay is facts outside of personal knowledge and facts not perceived personally.
It includes secondary information (passed on from one person to another), rumors (unknown sources) and unverified facts. Are results of surveys truth or hearsay?
Hearsay
The results are hearsay for the following reasons: (a) the respondents or the persons who answered the questions in a survey have no personal knowledge of the facts they tend to establish; (b) they likewise were not able to perceive the facts they tend to establish by their answers; and (c) for that reason they cannot make known their perception to any court of law.
To top it all, none of the respondents in a survey, not having been named and identified, can be called on the witness stand, placed on oath and subjected to cross-examination. The nature of the survey, therefore, defeats the essence of due process that a person charged should be informed of the nature and cause of accusation against him.
The questions phrased and presented in a survey pertaining to the current impeachment proceedings were not made known to the accused. Neither was he confronted with the same in the impeachment court.
Conditioning mind
At best, the surveys tend to condition the mind of the public on a perceived conclusion. The rest of the public or the population is expected to accept or swallow hook, line and sinker the results of surveys because these are presented as accurate, methodical and conducted by so-called experts in the field even if the respondents are limited to a handful. Moreover, there is no way to verify their identities and the exact areas covered by the surveys.
What then is a survey? It is the perception of the public outside of the court or how people perceive the issues to be in response to the survey questions.
Generally, there is nothing wrong with surveys. The problem arises when it is used or claimed to be reflective of the general sentiment of the public.
Worse, when it is packaged as consistent with the objects of democracy and the frequently repeated and cited legal maxim “vox populi, vox Dei,” that is, “the voice of the people is the voice of God.”
Free from biases
In a modern and civilized world, once a case is in court public opinion should be placed in the back seat. This is more consistent with the symbol of justice—the lady holding the scales is blindfolded and freed from the biases and prejudices of public opinion.
Otherwise, we go back to the Biblical times when supposed offenders were stoned and made to suffer till death. For this reason, surveys should not be conducted while the impeachment proceeding is in progress and until a verdict is rendered.
(Tranquil S. Salvador III is a member of the defense panel and one of the spokespersons of Chief Justice Renato Corona at the Senate impeachment trial.)