Inconsequential document

A much abused document that is currently in the news and accorded undue attention is the “affidavit”. This document has been inordinately over valued particularly with respect to the affidavits of the star witnesses Dumlao and Mancao in the Dacer-Corbito murder case and lately Nicole’s affidavit of desistance in the Subic rape case against US serviceman Lance Corporal Daniel Smith who has already been convicted by the Regional Trial Court mainly upon the victim Nicole’s testimony itself.

Legally and strictly speaking, an affidavit is a written or printed declaration or statement of facts made voluntarily and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath (Black’s Law Dictionary). In the hierarchy of evidence, affidavits cannot take precedence over open court declarations (People vs. Cueto, 395 SCRA 344). Being prepared and taken outside of a court proceedings, they are almost always incomplete and often inaccurate and self serving. So they are generally considered to be inferior to the testimony given in open court (People vs. Avergonzado, 397 SCRA, 295). Usually, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the affiant’s statement, hence omissions and misunderstandings by the writer are not infrequent (People vs. Astudillo 401 SCRA 723).

Actually an affidavit also deprives the persons implicated or accused therein of certain crimes, of the right to cross examine the affiant or accuser. Hence it is considered hearsay evidence if the affiant will not be produced to testify and affirm his statements in court where he will be subjected to cross examination by the adverse party. As held in the case of Boyboy vs. Yabut, Jr. (401 SCRA 622), “it is not difficult to manufacture charges in the affidavits, hence it is imperative that their truthfulness and veracity be tested in the crucible of thorough cross-examination” in court.

Taken in the light of this well established jurisprudence, the affidavits of Dumlao and Mancao implicating some personalities in the treacherous and cruel killing of Dacer and his driver Corbito are not as vital as the DOJ Secretary pictures them to be. Keeping Mancao’s affidavit in a bank vault by no less than the Secretary of Justice is obviously designed to gain more media mileage in the administration’s apparent move to discredit and draw public ire against one of its bitterest critics and nemesis, Senator Panfilo Lacson rather than to ensure the solution of the murder case and the conviction of the guilty parties. Such moves are just perceived by the public as a strategy to trigger speculations and piece meal revelations of their contents implicating anti-administration personalities.

If DOJ is really sincere in prosecuting this case and pinning down the culprits, it should just have expedited the process of establishing the probable guilt of the persons mentioned in the affidavits without so much fanfare so as to start court proceedings where Dumlao and Mancao can immediately testify upon their return to the Philippines through direct and cross-examination questions as provided by the rules.

Indeed, there is no assurance at all that the statements of Dumlao and Mancao in their affidavits will be exactly the same as their testimonies in court especially because they are taken under different circumstances. And whenever there are inconsistencies between their affidavits and their testimonies as witnesses in court, their testimonies command greater weight (People vs. De la Cruz, 398 SCRA 415). To be sure, contradictions between their testimonies and the narrations in their affidavits on material and substantial matters may even seriously impair their credibility (Pp vs. Janson, 400 SCRA 584).

On the other hand, Nicole’s affidavit of desistance should not have caused such public disgust against her for allegedly selling out her honor and the prestige of Filipino women for the measly amount of P100,000 in damages.

Giving too much importance to Nicole’s affidavit of desistance to the extent of condemning her for “selling out” is uncalled for. With or without such affidavit, Smith’s conviction by the lower court could still be affirmed if there is proof beyond reasonable doubt as to his guilt. In fact an affidavit of desistance or retraction made by a witness after conviction of the accused is not reliable but deserves only scant consideration (Santos vs. People 395 SCRA 507) especially because courts usually consider them to be easily procured through intimidation, threat or promise of reward (Pp. vs. Gavino, 399 SCRA 285). So Nicole’s desistance or retraction does not automatically result in Smith’s acquittal.

Besides, under Republic Act 8353 enacted on September 23, 1997, the crime of rape has been reclassified as a public crime against persons and no longer a private crime against chastity. Such reclassification means that the complaint for rape can be instituted not only by the victim but also by anyone, who is technically denominated as “People of the Philippines”. So even if the victim refuses to file a complaint or subsequently desists from prosecuting it, the case will not be dismissed right away. Thus it can even be said that Nicole is smart enough to get such a good bargain by executing such affidavit which does not in any way guarantee Smith’s freedom.  

Actually, there is a growing perception that Nicole’s affidavit is merely intended as a face saving device for the prosecution in view of the impending acquittal of Smith whose guilt beyond reasonable doubt has not apparently been established. Or more plausibly, it is used to cushion the impact of Smith’s acquittal that has been planned from the very start as a way of averting public disapproval and clamor for the scrapping of the Visiting Forces Agreement (VFA) that came under public scrutiny precisely because of her rape case. So Nicole has become a victim once more for being used as a pawn in accommodating US pressure to retain the VFA. The timing of Nicole’s desistance and Obama’s call to GMA is not after all a mere coincidence.

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