Constitutional Law: Article III, Section 17 Summary (De Leon)

Section 17. No person shall be compelled to be a witness against himself.

Meaning of the right. 

The right against self-incrimination is the right of a person to refuse to give any evidence that may lead to his conviction unless he willingly decides otherwise; 

or simply, the right of a person not to be compelled to be a witness against himself.

The prohibition is a protection against self-incrimination which may expose a person to criminal liability.

Basis and purpose of the right.

(1) The constitutional prescription is founded on grounds of:

        (a) Public policy, because if the party is thus required to testify, he would be placed under the strongest temptation to commit the crime of perjury for his own protection; and

        (b) Humanity or humanitarian reasons because it prevents the extortion of confession by duress in order to convince the accused. 

This, the right is also based principles of liberty and justice which impose on the government the duty to accord respect to the dignity of its citizens.

(2) Essentially, the right is meant to "avoid and prohibit positively the repetition and recurrence of certainly inhuman procedure compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction."

This was a lesson learned from the ancient days of the inquisition in which accusation was equivalent to guilt. Thus, an act, whether testimonial or passive, that would amount to disclosure of incriminatory facts is covered by the inhibition of the Constitution.

Importance of the right. (RP)

(1) Respect for the inviolability of the human personality.

The right against self-incrimination expressed in the Constitution is not, indeed, an idle right. It strikes at the very foundations of modern civilization.

The right or privilege of a person accused of a crime against self-incrimination is a fundamental right. It is a personal right of great importance and is given absolutely and unequivocably. The privilege against self-incrimination is an important development in man's struggle for liberty. It reflects man's fundamental values and his most noble of aspirations; the unwillingness of civilized men to subject those suspected of crime to the cruel trilemma of self-accusation, perjury, or contempt; the fear that self-incriminating statements may be obtained by inhumane treatment and abuses, and the respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a

private life.' "

(2) Prevention of a greater evil.

No doubt the constitutional provision may, on occasion, save a guilty man from his just deserts, but it is aimed against a more far-reaching evil/ recurrence of the inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil.

The Government must thus establish guilt by evidence independently and freely secured; it cannot, by coercion, prove a charge against an accused out of his own mouth.

History of the right.

Mr. Justice Malcolm, in his expressive language, tells us that this fundamental right was recognized in England in the early days "in revolt against the thumbscrew and the sack."

An early Philippine case (U.S. vs. Navarro, 3 Phil. 143 [1904].) speaks of this constitutional injunction as "older than the Government of the United States;" as having "its origin in a protest against the inquisitorial methods of interrogating the accused person," and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimonies regarding the offenses with which they were charged." (

In People vs. Jimenez (71 SCRA 184 [1~70].), the Supreme Court recounts the historical background of this constitutional inhibition.

Scope of the right.

(1) Right of an accused to silence. 

An accused "occupies a different tier of protections from an ordinary witness." 

The right to outright refusal to take the witness stand does not generally apply to parties in civil and administrative cases or proceedings unless they are criminal in nature. 

An accused has a right to testify but he cannot be compelled to testify against himself or as witness in his own behalf.

The constitutional guarantee protects as well the right of the accused to silence, and his silence, meaning, his failure or refusal to testify, may not be used as a presumption of guilt or taken as evidence against him or even imply a desire to conceal guilt.

It gives the accused immunity from any attempt by the prosecution to make easier its task by coercing or intimidating him to furnish the evidence necessary to convict. He may confess, but only if he voluntarily wills it. He may admit certain facts but only if he freely chooses to. Or he could remain silent, and the prosecution is powerless to compel him to talk.

(2) Any case where fact asked for is a criminal one.

The right is available in criminal cases as well as in civil, administrative, and legislative proceedings or investigations, whether ex parte or otherwise, including forfeiture cases where fact asked for is a criminal one. 

It protects one whether he is a party or a witness, a citizen or an alien. 

It does not extent to private investigations done by private individuals.

The Bill of Rights does not concern itself with the relation between a private individual and other individuals. It governs the relationship between the individual and the State.

(3) Compulsory disclosure of incriminating facts.

The right may not be invoked to protect a person against being compelled to testify to facts which may expose him only to public ridicule, or impair his reputation for probity, or even tend to disgrace him. It may not be invoked simply because the testimony might subject one to some liability not arising from any criminal action.

What the above guarantee seeks to prevent is compulsory disclosure of incriminating facts. Necessarily then, the protection it affords will have to await the existence of actual cases, be they criminal, civil, or administrative. Prior to such stage, there is no pressing need to pass upon the question of whether there is an infringement of the non-incrimination guarantee.

(4) Present, not a past criminality. 

It is applicable only to a present,. not a past, criminality which involves no present danger of

prosecution. Hence, a witness cannot refuse to testify as to a crime which, for example, has already prescribed or as to which he has been granted pardon or guaranteed immunity under a valid statute because once the reason for privilege ceases, the privilege itself ceases.

An immunity statute must grant complete and not partial immunity against criminal prosecutions, because no statute can deprive a witness of his constitutional privilege unless it affords him absolute immunity. (Ex: EO 14)

(5) Testimonial compulsion. 

It can be availed of only against testimonial compulsion, and must be invoked (by a witness other than the accused) at the proper time and that time is when the question which tends to elicit an incriminating answer is propounded since a witness has no way of knowing in advance the incriminating effect of the question to be put to him, but an accused, unlike an

ordinary witness, can refuse altogether to testify as a witness for the prosecution on the very reasonable assumption that the purpose of the interrogation can only be to incriminate him.

(6) No application to juridical persons. 

The guarantee has no application to juridical persons. 

While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, it does not follow that a corporation, vested with special privileges and franchises, may refuse to show its hand when charged with an abuse of such privileges.

There is a clear distinction between an individual and a corporation. 

The latter being a creature of the state, does not have the constitutional right to refuse to submit its books and papers for an examination at the suit of the state even if this will result in disclosure of criminal acts of the corporation, and an officer of a corporation who is charged with criminal violation of a statute for refusal to produce its books may be required to do so.

This principle applies also to an unincorporated association such as a labor uruon or a

partnership.

Controlling factor.

What is controlling is not the character of the suit involved but the nature of the proceedings. The privilege extends to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness.

Administrative proceedings.

But a respondent in an administrative proceeding cannot claim the right to be informed

of his right against self-incrimination under Section 12(1) because this provision is not

applicable "--here a person is not "under investigation for the commission of an offense."

When applicable.

The right against self-incrimination is accorded to every person who gives evidence, whether voluntary or under compulsion of subpoena, in any civil, criminal, or administrative proceedings. However, the right can be claimed only when the specific question incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or to refuse to testify altogether.

Nature of the right. (W-C-S)

(1) A personal right subject to waiver. 

A confession taken in violation of Section 17 (and also of Sec. 12) shall be inadmissible against the confessant. The guarantee, however, is purely personal and may be waived in various ways.

It may be invoked only by the person to whom it belongs. 

It was never intended to permit a person to plead the fact that some third person might be incriminated by his testimony, even though he were the agent of such person. 

The privilege is an option of refusal, not a prohibition of inquiry.

While a person cannot be compelled to be a wtness against himself, he may waive this right by voluntarily taking the witness stand.

(2) A right not self-executing or automatically operational.

In other words, it must be claimed; otherwise, the protection does not come into play. Moreover, the right must be claimed at the appropriate time, or else, it may be deemed waived.  

Thus, in a case where the petitioner did not invoke his right against self-incrimination at the time she was asked to provide samples of her signature, she was deemed to have waived her right against self-incrimination.

(3) A substantive right enforcement of which is mandatory.

The right is not merely a formal technical rule; the enforcement of which is left to the discretion of the court. 

It is mandatory; it secures to a defendant a valuable and substantive right; it is fundamental to our scheme of justice.

Nevertheless, it is the court, rather than the witness that has the final say as to whether or not the answer to a question will be incriminatory.

Form of testimony prohibited.

(1) In general.

The constitutional privilege against self-incrimination has been defined as a protection against testimonial compulsion, but this has since been extended to any evidence "communicative in nature acquired under circumstances of duress." 

If such evidence is necessary, the same should be secured from other sources; and if it is desired that it should be taken from the party concerned, he must at least be assured of absolute immunity by those legally empowered to do so.

(2) Testimonial self-incrimination. 

The constitutional guarantee that no person shall be compelled to be a witness against himself is a prohibition against compulsory testimonial self-incrimination - extricating from defendant's own lips, against his will, an admission of his guilt. 

The guarantee includes the "right to refuse to testify to a fact which would be a necessary link on a chain of evidence to prove the commission of a crime by a witness."

The right cannot be invoked where the evidence sought to be excluded is not an incriminating statement but an object evidence such as stolen goods. The taking of pictures of an accused even without the assistance of counsel, being a purely mechanical act, is not a violation of the right.

Neither can it be claimed where the voluntary confession (given in the preliminary investigation) of the accused is admitted at the trial. What the Constitution prohibits is

compulsory disclosure of incriminating facts. The conviction of an accused on a voluntary extra-judicial confession in no way violates constitutional guarantee.

(3) Production of incriminating documents and other objects.

Proof is not solely testimonial in character. It may be documentary.

The protection then extends to the production by the accused of documents, chattels, or other objects, demanded from him, which may constitute evidence of his guilt or innocence, for then he is compelled to make a statement, express or implied, as to the identity of the articles produced.

The constitutional privilege cannot be maintained with respect to private papers or records required by law in the exercise of police power to be kept (e.g., books of accounts) in order that there may be suitable information of transactions which are appropriate subjects of governmental regulations and the enforcement of restrictions validly established.

A search or seizure of a person's house, papers or effects for the purpose of locating incriminating matters infringes the guarantee.

(4) Production of handwriting specimen.

The refusal of a person to produce a specimen of his handwriting is also included within

the privilege. 

The reason is that writing is not a purely mechanical act "of moving the body, or the hand, or the fingers." It requires the application of intelligence and attention and is equivalent to

testimonial compulsion. 

Thus, in a prosecution for falsification, writing means, in effect, requiring the accused "to furnish a means to determine whether or not he is a falsifier." 

(5) Forced re-enactments; executing mechanical acts.

Like uncounseled and coerced confessions, forced re-enactments come within the ban against self-incrimination.

In a forced re-enactment, the accused is not merely required to exhibit some physical characteristics; by and large, he is made to admit criminal responsibility against his will. It is a police procedure just as condemnable as an uncounselled confession. 

Accordingly, all evidence (e.g., pictures) based on such a re-enactment conducted without any lawyer assisting the accused is held to be in violation of the Constitution and hence, incompetent evidence.

(6) Identification in police line-ups. 

An act, whether testimonial or passive, that would amount to a disclosure of incriminatory facts is covered by the inhibition of the Constitution. A police line-up is not encompassed in the constitutional right against testimonial compulsion and the right to counsel. 

(7) Identification in court. 

The constitutional prohibition is not also violated by compelling the accused to stand up for the

purpose of identification, for every court has the power to require every person who is present as a party or who is a witness under examination, to disclose his or her face to the court. For the purpose, an accused can be compelled to disclose only those parts of his

person which are not usually covered. 

The admission as to marks and scars found upon the person of the accused with a view of

ascertaining his identity is not prohibited.

(8) Signing of Booking Sheet/Arrest Report/Receipt of Property Seized.

When an arrested person signs a Booking Sheet and Arrest Report at a police station, he does not admit the commission of an offense nor confess to any incriminating circumstance. 

The Booking Sheet is merely a statement of the accused being booked and of the date which accompanies the fact of arrest. It is not an extrajudicial statement and cannot be the basis of conviction. 

However, the signature of the suspect on the Receipt of Property Seized given without the assistance of counsel (Sec. 12.) is inadmissible in evidence for such signature is a declaration against his interest and a tacit admission of the crime charged.          

Use of body or parts of one's person as evidence.

The prohibition of compelling a man to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body or parts of his person as evidence when it may be material.

Thus, there is no violation where:

(1) The accused is finger-printed, photographed, or paraffin tested or made to undergo ultra-violet ray examination in order to determine the presence of ultra-violet powder.

Paraffin tests and ultra-violet ray examination may be conducted on the accused in the absence of counsel since the subjection of the accused thereto cannot be considered a custodial investigation.

(2) The accused is examined for gonorrhea to determine if it had been transmitted to his victim of r@pe:

(3) Blood sample is taken from the accused (charged with homicide through reckless imprudence arising from an automobile collision involving an automobile driven by him while allegedly intoxicated) while unconscious for purposes of blood test to determine the presence of alcohol;

(4) Hair samples are taken from the accused (charged with homicide) and submitted to the National Bureau of Investigation (NBI) for forensic examination for comparison with the hair strands found on the right hand of the victim. The hair samples may be admitted in evidence against him for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress; and

(5) Aside from blood sample taken from the accused, DNA (deoxyribonucleic acid) was conducted on him.

Performance of mechanical acts.

Mechanical acts the accused is made to execute which are not meant to unearth undisclosed facts, but to ascertain physical attributes determinable by simple observation are not within the privilege. By such acts, the accused does not thereby speak his guilt;

hence, the assistance and guiding hand of counsel is not required.

There is also no violation where:

(1) The accused is forced to discharge morphine from his mouth;

(2) The accused is compelled to place his foot on a piece of paper to secure his footprint;

(3) The accused is compelled to be photographed or measured, to remove his garments and his shoes, or required to put on a pair of pants, and a hat to determine whether they fitted him, or to move his body to enable the foregoing things to be done;

(4) A woman accused of adultery is compelled to permit her body to be examined by physicians to determine if she is pregnant; and

(5) Samples of urine were given by the accused who were requested to undergo drug test.

Constitutional provision to be liberally construed.

In order that the constitutional provision under consideration may prove to be a real protection and not a dead letter, it must be given. a liberal and broad interpretation favorable to the persons invoking it.

But simply invoking the privilege is not sufficient. The witness is not the sole judge of the incriminating nature of the question. It is the province of the court to determine whether any direct answer to a question will furnish evidence against him; and whether or not the question is incriminating, the rule firmly established is that a witness cannot be compelled to give a link to a chain of evidence which may furnish matter for his conviction of a criminal offense. In doubtful cases, however, the witness should be permitted to make the determination.

Law granting to witnesses immunity from prosecution.

(1) Statutory immunity granted to witnesses. 

Aside from the Constitution, there are laws giving immunity to witnesses from criminal

prosecution to facilitate the solution of crimes with high political, social, and economic impact against the people.

Article VI, Section 11 of the Constitution: A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session.

Article XVI, Section 3. The State may not be sued without its consent.

PD No. 749: Granting immunity from prosecution to givers of bribes and other gifts and to their accomplices in bribery and other graft cases against public officers.

PD No. 1886: Illegal Possession of Firearms, Ammunition or Explosives

E.O. No. 14: Testimony before the Presidential Commission on Good Government

Under Section 9, Rule 119 of the Rules on Criminal Procedure an accused may be discharged to be utilized as a State witness. 

(2) Types of statutory immunity. 

Our immunity statutes are of American origin. In the United States, there are two (2) types of

statutory immunity granted to a witness, namely:

    (a) Transactional immunity 

        By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of or the act or transaction; and

    (b) Use-and-derivative case immunity.

        By its grant, a witness is only assured that his particular testimony and evidence derived from it will not be used against him in a subsequent prosecution.

(3) Justification for grant of immunity.

The decision of the prosecution to grant immunity to a witness is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of having committed a crime. Its justification lies in the particular need of the State to obtain the conviction of the more

guilty criminals who, otherwise, will probably elude the long arm of the law.

To accommodate, the need to assist government in its task of containing crime, the right against self-incrimination was stripped of its absoluteness.

(4) Condition for grant of immunity. 

Immunity statutes in varying shapes were enacted which would allow government to compel a witness to testify despite his plea of the right against self-incrimination. To insulate these statutes from the virus of unconstitutionality, a witness is given either kind of immunity.

Those given the privilege of immunity pay a high price for it - the surrender of their precious right to remain silent. Laws that tend to erode the right against self-incrimination and the right to remain silent must necessarily be given a liberal interpretation in favor of the individual.