Assessing Ruby Tuason’s testimony

The televised testimony of Ruby Tuason before the Senate blue ribbon committee has been hailed as a grand “slam dunk,” only a “lay-up,” and a winning “three-point buzzer-beater.” These street-smart assessments of how the former Malacañang social queen pinned down her longtime family friend-senator are, of course, familiar to basketball diehards.

Purpose of testimony. After the effusive sports lingo, the assessments turned more serious from “sabotage” and “worthless” to “sufficient proof of conspiracy… enough to convict” another senator.

I think all these descriptions should be understood in their proper context. Tuason’s testimony was not about basketball or criminal law. Rather, her appearance was about assisting the Senate in crafting or amending legislation to stop graft.

For example, the committee could, as a result of its hearing, sponsor a bill on how to prevent suspects from leaving the country, and how to proceed against those who managed to sneak out, without violating their constitutional rights. Or how to make it easier for prosecutors to indict high officials, especially legislators. Or how to find novel ways to prevent and penalize new forms of graft.

Tuason did not testify in the Senate to defend herself in the plunder charge thrown at her by the Department of Justice. Neither was it to implicate or protect any of her corespondents. It would be unfair to assess her testimony to show anyone’s complicity in any crime. These are simply not the purposes of the Senate hearing.

True, congressional investigation can sometimes engender the belief that a crime had been committed and that certain individuals are possibly guilty thereof. But Congress cannot indict them in court, much less pass upon their guilt and sentence them to jail. It may, however, recommend their prosecution to the DOJ or the Office of the Ombudsman, but the discretion on whether to indict them belongs solely to these two latter offices.

More exacting. Criminal procedures are more exacting than congressional investigations. First, the information (or charge sheet) must be filed in the proper court that has jurisdiction over it; and second, the information must be clearly and accurately worded to comply with the constitutional right of the accused “to be informed of the nature and cause of the accusation against him.”

Thus, the information must set out (a) the names of the accused, (b) the designation of the offense given by the statute, (c) the specific acts or omissions constituting the crime coached in ordinary and concise language, (d) the approximate date of the offense, and (e) the place where it was committed. As a rule, an information must charge only one offense.

In short, the information must contain the “essential elements” of the crime which must be worded clearly “to enable a person of common understanding to know what offense is being charged,” to empower him or her to prepare his or her defense.

Unless the foregoing safeguards are put in place, guilt or innocence cannot be deduced from the testimony of any witness. The reason is that the testimony must be received and admitted only when it is both “relevant” and “material” to the specific crime charged. Furthermore, the questions must be propounded properly and clearly, without misleading or confusing the witness.

Finally and most importantly, the adverse party must be given the opportunity to cross-examine the witness. Despite the many scientific advances in crime detection and prosecution, the old-fashioned cross-examination conducted by a skilled lawyer is still the best-known way of testing the truthfulness and credibility of witnesses. Unless subjected to cross-examination, testimony is hearsay and cannot be used to convict or prejudice the accused.

In congressional investigations, questions are sometimes recklessly asked without sufficient predicate (or basis), thereby eliciting unresponsive, incomplete or wrong answers. Moreover, resource persons (they are not called “witnesses”) are not cross-examined by adverse parties, because there are no adverse parties in legislative inquiries.

The point is: Unless the safeguards in a criminal proceeding are observed, the testimony given in congressional probes cannot be used to indict or incriminate third persons, or for that matter, to free the guilty. This is why the Supreme Court has restricted (no longer absolutely banned) live coverage of trials.

Context and complications. At bottom, the street-smart assessments of Ruby Tuason’s performance should be understood in their congressional context rather than as legal opinions on criminal liability. Let us remember that her testimony was taken without any specific criminal indictment, without any safeguard for the rights of the putative accused, and without the benefit of cross-examination.

In the court of public opinion, these open and much-publicized congressional hearings can besmirch reputations, cause sleeplessness and anxiety, and lead to severe consequences to the conscience-stricken or mentally unbalanced. Some politicians may lose their charisma and political clout. Others may even go, as some have gone, to the extreme of  hara-kiri  or suicide.

In the courts of law, criminal guilt or innocence is not determined by the passing passion of the political thicket, but by a serene, quiet and rule-based trial speedily conducted by competent, independent and trustworthy judges, assisted by skilled, dedicated and ethical lawyers.

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