Crime participant can serve as state witness

The learned Miriam D. Santiago, the senator from lloilo, was reported in the Aug. 31 issue of the Inquirer, to have opined that the controversial Janet Lim-Napoles, who is now detained for the crime of illegal detention, may be discharged as a state witness in the cases that may be filed in connection with the P10-billion pork barrel scam that she supposedly masterminded.

The senator cited Section 17, Rule 119 of the Revised Rules on Criminal Procedure, which provides for the discharge of a person duly charged in court, to be a state witness for the prosecution upon concurrence of certain conditions, to wit: (a) there is absolute necessity for the testimony of the accused sought to be discharged; (b) there is no other direct evidence available for the proper prosecution of the offense charged; (c) the testimony of the accused can be substantially corroborated in its material points, and (d) the accused does not appear to be most guilty.

In my humble way of sharing my experiences as trial prosecutor for 12 years and as regional trial court judge for 17 years, I would like to add that there is authority to the effect that even if a person has not yet been accused or included in the information, and even if he has participated in the commission of the crime, such fact cannot prevent the prosecutor from adopting him as a government witness if that is what he believes, in the exercise of his sound discretion.

That is so because, “there is nothing in the Rule (119) from which it can be inferred that before a person can be presented as a government witness that he be first included as a co-accused in the information, for the fiscal is free to introduce as a witness, anyone who he believes can testify in the truth of the crime charged” (US vs. Enriquez, 40 Phil. 603 cited in Herrera, Criminal Procedure, 2007 Ed., Vol. IV).

Interestingly, Republic Act No. 6981, also known as the Witness Protection Program (WPP) Law, is another legal provision whereby a person, who has participated in the commission of a crime which is a grave felony, may be admitted into the program and be discharged from the information to be a state witness.

Although the other preconditions are practically the same, they however, differ (1) in that under Rule 119, it is the prosecutor who applies for the discharge of an accused with the trial court; whereas pursuant to RA 6981 it is the individual involved in the crime who shall apply with the justice secretary to be a witness for the state (although it will be the trial court that will order his discharge if he is already included in an information); and (2) in RA 6981, after the accused’s admission to the WPP, he is entitled not only to immunity from criminal prosecution in which his testimony would be given but also to the rights and benefits provided for under Section 8 thereof, which rights and benefits are not available to the accused who is discharged under Section 17, Rule 119 of the Revised Rules on Criminal Procedure.

—CESAR M. SOLIS,

Millora, Solis & Associates Law Offices,

[email protected]