Friday, March 9, 2012

MLQ3 on Tumblr! - Fruit of the Poisonous Tree, and other impeachment matters.

MLQ3 on Tumblr!

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  1. I. The continuation of an old argument

  2. Back in the Estrada impeachment, senators had to wrestle with the defense wanting to exclude information concerning bank and other accounts of the impeached official. Kit Tatad's book A Nation on Fire reproduced whole passages from the transcripts of the proceedings. In this instance, the late Raul Roco wondered why the Senate was being asked not to subpoena documents, or admit documents on bank accounts, which then-prosecutor Joker Arroyo answered by bewailing the efforts of the defense to exclude the documents.
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    Roco (Taglish): …Now, can you please explain how in an ordinary Senate committee –banks, blue-ribbon, in any other ordinary Senate committee– if we ask for it, we get it. But in this Impeachment Court, the most extraordinary assignment for the Senate, we are the only ones who can try –I can see the Bicolano in you– we are the only ones who can try, well, we are prohibited. Can you please explain what is the logic there? Arroyo: In fact, we find it very hard, just to get one. They have filed an omnibus opposition to every bank account that we have subpoenaed. All the allegations now, they say, “that the bank accounts are not part of it, they are not assets.” All of us here, the senators and us, congressmen, we files Statements of Assets and Liabilities. If you see the column “Assets,” it reads here: (a) real properties; (b) personal and other properties. Listed in (b), cash on hand and in banks. So those are assets. Now business is separate. It is under Letter B. Roco: Yes.
    Manuel L. Quezon III | Monday’s Caucu...
    6 days ago
  4. In the end, the defense tried to invoke a legal doctrine to throw out damaging evidence: the Fruit of the Poisonous Tree Doctrine. 
  5. Share
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    The Doctrine of the Fruit of the Poisonous Tree   1. Evidence will be excluded if it was gained through evidence uncovered in an illegal arrest, unreasonable search or coercive interrogation, or violation of a particular exclusionary law. 2. It is an offshoot of the Exclusionary Rule which applies to primary evidence. The doctrine applies only to secondary or derivative evidence. There must first be a primary evidence which is determined to have been illegally obtained then secondary evidence is obtained because of the primary evidence. Since the primary evidence is inadmissible, any secondary evidence discovered or obtained because of it may not also be used. a. The poisonous tree is the evidence seized in an illegal arrest, search or interrogation. The fruit of this poisonous tree is evidence discovered because of knowledge gained from the first illegal search, arrest, or interrogation or violation of a law. b. It is based on the principle that evidence illegally obtained by the state should not be used to gain other evidence because the original illegally obtained evidence taints all those subsequently obtained. 
    Admissibility of Evidence
    4 days ago
  6. Here is a concise summary of the law and its application, as far as the admissibility of evidence is concerned. 
  7. But the doctrine was dismissed as "immaterial and irrelevant" back in 2001, as the late Senator Rene Cayetano explained on the night of the voting on the second envelope:
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    Cayetano: …My friends in the defense, even if they do not admit it but by their arguments, they say these are criminal proceedings. For instance, we heard my beloved professor [Estelito Mendoza] say, “The fruit of the poisoned tree cannot be admitted.” That is a principle in Criminal Law, what is called “proof beyond reasonable doubt,” mentioned here days ago. Again, that is also a principle in criminal proceedings. But as I said earlier, this is not a criminal proceeding. This is a political process provided in our our Constitution in order to judge whether a president is fit to remain in office. He is not to be jailed or punished, just removed from office. That’s why this is not a criminal proceeding. So when we drafted the Rules on Impeachment, we followed the record of the Constitutional Commission, and we saw in the debates of those who drafted the Constitution that the rules on procedure and the rules on evidence should be liberally construed. Because the heroes who prepared and made this Constitution knew that this is not a criminal proceeding but a political process. And that’s the basis of our Rules of Proceedings. So what do we hear from former Senator Salonga, a well-known lawmaker and member of the Senate for many years? What did he say? That we are too strict in using the Rules of Procedure and Evidence; that why not only is the process slow but the witnesses are unable to tell the truth. Retired Justice Isagani A. Cruz has admitted in a recent column that he made a mistake when he said an impeachment trial is criminal in nature. This well-known and eminent magistrate said he made a mistake because he saw that liberty of the rules of procedure and evidence is needed… My beloved professor says we should base everything on the Constitution. That is right, Professor. But the Constitution does not say how do we prove the Articles of Impeachment. That is in the Rules of Impeachment made by the Senate. And the Rules of Court are suppletory whenever applicable. The Constitution does not say how the House prosecutor will prove the allegations in the complaint or the ultimate facts. That’s why I ask my fellow senators that we have a duty to see the truth. We have a duty given the Senate as an institution an unblemished reputation because we have a lot of obligations to face after this. If the envelope does not contain any bomb, it will be held against the prosecution and will be a triumph for the defense…
    MLQ3 on Tumblr!
    4 days ago
  9. The moral of 2001 was that too high an adherence to procedures more proper for a criminal trial, would bog down an impeachment and result in the public being dissatisfied.
  10. Quite early on in the present proceedings, observers of the trial pointed out that if the defense was, naturally, inclined to prevent the introduction of damaging evidence, going head-to-head or point-for-point with the defense would leave the prosecution at a natural disadvantage (all other factors considered aside).
  11. One observer has called this the "judicialization" of the impeachment court:
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    The second reason is the increasing judicialization of the Senate Impeachment Court. While there had been some liberalities allowed at the onset, and the Senate President himself has pronounced that the trial is not a criminal one; the Senate has adopted a generally conservative attitude on things that matter. This is despite the overwhelming consensus in the American jurisprudence, which the framers of the Philippine Constitution affirmed in 1987, that the Senate Impeachment Court is supposed to be a policy-making body first before it is a judicial one. This judicialization stems from a couple of factors. Firstly, you have the maneuverings, both legal and political, by the Chief Justice’s high-caliber defense counsels. The Defense’s dramatic allegations of bribery in the Impeachment Court, for instance, had pushed the Senate to prove its impartiality by accepting the temporary restraining order (TRO) issued by the Supreme Court against the Senate’s subpoena on the Chief Justice’s dollar accounts. Secondly, you have the myopic framing of the impeachment trial by some of the lawyers among the senator-judges, especially Senator Miriam Defensor-Santiago, on a purely legal perspective. Sociologist Randy David calls this the Lawyer’s Umwelt.
    Tide turning against Aquino? « The Nu...
    4 days ago

  13. II. The Case in Hand

  14. The case at hand --what the Senate will decide in caucus on March 6-- is whether the documents concerning bank accounts will be declared admissible as evidence. 
  15. In her column, Yoly Ong crunches the numbers, and compares what the Chief Justice has declared under oath as his properties, cash, and other assets, and what has emerged in the Senate over the past weeks.
  16. Lawyer Ben Maynigo has also been crunching the numbers and finds it difficult for the defense to credibly debunk them:
  17. Law blogger Article VIII Jester has been covering the developments in the trial, including the emerging evidence and what it means.
  18. First, quite early on (Day 11) he pointed out that the defense was floundering on how to handle the evidence presented for Article II. 
  19. Second, on February 4, he pointed out the damaging repercussions of the revelation of dollar deposits. The defense went to the Supreme Court, which imposed a TRO. That remains pending, and so the issue will not be tackled in the March 6 caucus of the Senate. But should the Supreme Court eventually relent, the prosecution has made a reservation to return to Article II if and when the Supreme Court decides to allow examination of dollar deposits. This would come, however, in the midst of the defense's presentation of its side.
  20. Third, he provides a wrap-up of the evidence of the prosecution in terms of Article II, and discusses its relative weight, how and whether it is admissible --and the difficulty the defense will have in rebutting the evidence.
  21. Share
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    The following shows a comparative view of the “Cash and Investments” that Corona declared in his SALNs for 2005 to 2010 vis-à-vis his cash deposits in BPI and PSBank Peso accounts under his name for the same periods: Years SALN Cash Assets Declarations Total Deposits in PSBank/BPI Peso Accounts Undeclared Cash Assets 2005 P3,300,000.00 P149,767.36 (P3,150,232.64) 2006 P2,500,000.00 P153,395.12 (P2,346,604.88) 2007 P2,500,000.00 P10,132,416.29 P7,632,416.29 2008 P2,500,000.00 P2,590,920.90 (P90,920.90) 2009 P2,500,000.00 P9,178,501.83 P6,678,501.83 2010 P3,500,000.00 P31,752,623.09 P28,252,623.09 As previously noted, the underdeclaration of P28,252,623.09, as of December 31, 2010, is not yet a final figure since Corona’s PSBank US Dollar accounts, which were confirmed to be existing accounts, have not yet been produced and presented before the Impeachment Court. Thus, said amount will most probably increase as said accounts are produced and presented. In addition, as shown by the newly-disclosed PSBank Peso Account No. 089-101005094 with an apparent balance upon closure amounting to P17,270,654.97, the underdeclaration would be at least P49,681,240.39 depending on the other accounts to be produced, the actual year-end balance of the BPI account as of December 31, 2011 and the declarations he will make in his SALN for 2011 (which will be filed on or before April 30, 2012): Years Deposits in BPI Peso Account Deposits in PSBank Peso Accounts Total Deposits 2011 P12,024,067.70 P37,657,172.69 P49,681,240.39 Again. P49,681,240.39 Let that sink in.
    Proving Article II | Article VIII Jester
    6 days ago
  22. More recently, Senator Osmeña told the media of the status of various allegations of where bank records may have come from:
  23. This would be a problem to which there seems only one solution: to exclude the evidence, which might secure an acquittal on what can only be described as a technicality.
  24. Share
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    Let’s review Article 2 and the prosecution evidence. Article XI, Section 17 of the 1987 Constitution provides that: “A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth.”  Republic Act 6713 (Approved: February 20, 1989) states in Section 8: “Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interest including those of their spouses and of unmarried children under eighteen (18) years of age.” Subsection A details the content of the SALN and requires the yearly filing “on or before April 30”. In prosecuting Article 2, the prosecution has shown that Corona’s SALNs from 2002, the year he was appointed Supreme Court justice, until 2010 did not reflect correctly his “assets, liabilities and net worth”. Not all his real properties were included with those included undervalued compared to the acquisition costs. Only a lesser percentage of his bank deposits were reported. His real property and cash assets recorded in the Register of Deeds and in the banks were beyond his known personal resources. That he violated Article XI, Section 17 of the Constitution and Section 8 of RA 6713 has been established. That by this Corona “committed culpable violation of the Constitution and/or betrayed the public trust” is yet for the prosecution to recapitulate relevant to the charge and for the defense to refute.  Either Corona is dismissed or retained as Chief Justice. But the defense’s burden is not easy. Corona is accused of violating the Constitution and RA 6713, not for amassing ill-gotten wealth. The defense can prove as legally acquired Corona’s real property and cash in the banks. That is not the burden in Article 2. In fact, the more the defense justifies Corona’s bank deposits – including the dollar deposits Corona has promised to disclose “in due time” – the more it admits his dishonesty in filing his SALNs, the wide disparity between his declared and real wealth. Yet, the prosecution is far from sure to have Corona dismissed. The defense, besides presenting evidence, will vigorously attack the prosecution evidence from its weakest point – technicality, invoking the Rules of Evidence. If it can have the prosecution evidence dismissed by technicality, it may not need present its own evidence.
    MindaNews » MINDA DA NEWS: So, What Now?
    4 days ago

  25. III. The Lawyers Weigh in

  26. Senator Miriam Defensor-Santiago has tried to put herself forward as the authority bar none, on legality. But as this excerpt shows, not everything she has objected to or pointed out, is necessarily correct.
  27. Recall that Alexander Hamilton had defined impeachment as a "grand inquest" into the "conduct of public men." 
  28. There are two lawyers who have weighed in on the issue. The first is The Warrior Lawyer, in this entry:
  29. His entry points out possible legal arguments to be made, allowing bank records --regardless of how they were obtained-- to be considered in evidence. 
  30. Share
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    Under the Calandra ruling, illegally seized evidence may be admitted in grand jury investigations if the invocation of the exclusionary rule (poisonous tree) would unduly impede the grand jury’s investigative and accusatorial functions. It may reasonably be argued that the Senate impeachment proceeding is more akin to that of a grand jury investigation than a criminal prosecution. The role of a grand jury is to ferret out the truth by a thorough and extensive investigation, unhindered by the challenge that it may have acted on the basis of incompetent or inadequate evidence. This is precisely how the prosecution in the Senate impeachment trial wants to paint the proceedings. There are therefore sufficient legal grounds to allow the Leal leaks as evidence, if only because, to paraphrase Calandra, the potential damage to our political institutions and processes by the imposition of “fruit of the poisonous tree” rule outweighs any possible abridgement of personal privacy rights on C.J. Corona’s part. Of course, the defense will have equally persuasive evidence to counter the admission of the leaked documents. Expect legal fireworks at the resumption of the Senate hearing on March 12.
    Revive blog and Constitutional law » ...
    6 days ago
  31. The second lawyer is Edsel Tupaz, who also weighs in on the issue:
  32. The prosecution, he says, can point to the Bank Secrecy Law having no provision declaring evidence obtained by whatever means as inadmissible.
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    While Section 2 provided for the confidentiality of bank accounts, it also provided for exceptions, thereby allowing lawful access to bank information. These exceptions can be summed up into four instances: first, upon written permission of the depositor; second, in cases of impeachment; third, upon order of a competent court in bribery or dereliction of duty cases of public officials; and fourth, in cases where the money is the subject matter of litigation. Arguably, the second, third and fourth exceptions may be applicable to Corona's impeachment trial, thus, banks which are subject to a subpoena by the Senate sitting as the Impeachment Court, would have to disclose Corona's accounts. It has to be noted too that subsequent laws provided for other exceptions to the guarantee of privacy under Republic Act No. 1405. Curiously, the Bank Secrecy Law did not provide for a clause aimed to render inadmissible unlawfully accessed bank information. The only plausibly relevant provisions, read together, which may lend support to an application of the fruit of the poisonous tree doctrine state that the unlawful act of any official or employee of a banking institution to disclose any information on bank deposits (Section 3) is deemed a violation of the law subjecting the offender to imprisonment and fine (Section 5). In the landmark 2006 case of Ejercito v. Sandiganbayan, the Philippine Supreme Court ruled on the issue of unlawful access of bank accounts of former President Joseph Estrada on the charge of plunder. In justifying the access of bank information for plunder, the Court likened cases of plunder and unexplained wealth to bribery or dereliction of duty, in order to fit the case squarely into the exceptions under Section 2 of the Bank Secrecy Law, as follows Cases of unexplained wealth are similar to cases of bribery or dereliction of duty and no reason is seen why these two classes of cases cannot be excepted from the rule making bank deposits confidential. The policy as to one cannot be different from the policy as to the other ... Thus, cases for plunder involve unexplained wealth.
    JURIST - Sidebar: Philippine Bank Sec...
    4 days ago

  34. IV. Judges or Jurors

  35. In the end, the Senators will be debating a question that divided them in 2000-2001, and again, now: do you focus on impeachment as a judicial exercise, or do you take a broader approach, knowing that, precisely, the framers of the Constitution placed impeachment in the hands of a political branch (Congress), with the House as accuser and the Senate as the body to, collectively, determine conviction or acquittal? 
  36. Share
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    At times, all these happenings in court and out of court  may tend to distract, misdirect and derail Senator-Judges and the people from the directions this Impeachment Court should take. If so, they can always return to the main highway by repeatedly asking: “Is the accuse Renato Corona morally fit to remain in office.” In a trial, evidence comes in many forms including paper evidence, physical evidence, circumstantial evidence, witnesses’ statements or whatever. The strategy of Corona’s defense team from the very start is obvious: keep any kind of evidence involving his financials or other matters touching on his moral character from being revealed. Cuevas has practically cited all the grounds for excluding evidence with his serial objections. One could play a betting game with others at the start of every hearing to see which one is closest to guessing how many times he would blurt out “Objection, your honor!”. This is followed by claims of: “Immaterial”, “irrelevant”, “argumentative”, “misleading”, “hearsay”, etc. While either he or the Presiding Judge has prevented a lot of serious evidence from being admitted which would have been very damaging to Corona, ironically, the prevention of critical evidence from being admitted is arguably equally damaging to Corona or maybe even more so  in so far as the public perception is concerned. Shielding the exact amounts of his dollar deposits in five accounts in just one bank suggests a lot about his culpability and begs the following question to be asked: “The prosecution claims that one account alone contains 700 thousand dollars. If this is not true and if he is innocent and has nothing to hide, why therefore is he blanketing the amounts involved in his dollar accounts? This is only the second impeachment trial in the Philippines. The first one  involved the impeachment of  former President Joseph Estrada which was not even completed. It was truncated in the middle of the deliberations because a majority of eleven  blatantly pro-Estrada loyalists voted not to open an envelope believed to contain damning important bank records. As a consequence, Senate President Aquilino Pimentel resigned followed by a walk out of the prosecutors. One declared: “It is clear to us that the judgement of the Impeachment Court will not be reached on truth that the people seek.” The walkout triggered the EDSA 2 people power leading to the forced removal of Estrada. Side note. Four of the eleven pro Estrada Senators are also involved in this Corona trial: Enrile, Defensor-Santiago, Sotto and Honasan.
    Is Corona morally fit to remain in of...
    4 days ago
  37. In 2001, Raul S. Roco argued that a legalistic approach is inherent in the defense, and tempting to lawyers among the Senators; but the public, perhaps more in synch with what impeachment is supposed to be --a public investigation into the fitness of an official for continuance in office-- would not (and perhaps, should not) be overly concerned with legal technique, since actual imprisonment or fines aren't the province of impeachment: it is, precisely, which impeachment is not a barrier to criminal trial afterwards.
  38. Share
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    Roco: …If we convict or declare as innocent the respondent, President Estrada, it must be on full transparency. It must be in the light. It would be sad if we convict or declare the President innocent, while forgetting or covering some evidence. The technical objection is that it is not in the complaint. In fact, it is there. According to former Justice Isagani A. Cruz in his writing, the defense would find it hard to see it in the Articles of Impeachment, and I understand that because we lawyers like to tell our own side. The prosecution will present its side, the defense will present its own too. But as judges we will allow them to quarrel, but we will have to wait for the entirety of the evidence. The fact that we are on trial should make us pause, Mr. Chief Justice. And I hope we achieve some consensus on some points. Whatever the final judgment of the Impeachment Court, whether guilty or innocent, it is important that it should be supported by the Filipino citizenry. It is not important that the judgment is guilty or innocent. It must be supported by the Filipino people and the Republic of the Philippines. This evening we seem to be about to cross a bridge, and I hope, Mr. Chief Justice, that when we cross that, we retain the higher credibility of the Impeachment Court and the impeachment process. We are the ones who have asked to do this job, and that is why I do not want to debate on legal technicalities. The interest of national unity, the interest of the people, is at stake, and we cannot forget that that is the issue here, whether or not we are going to open…
    Manuel L. Quezon III | Monday’s Caucu...
    6 days ago
  39. Among the veterans of the 2000-2001 impeachment, who took a legalistic approach and who incurred the wrath of the public, is the presiding officer, Senate President Juan Ponce Enrile. He seems to have decided to take a middle course, compared to his earlier stance; nowhere as generous as say, the late Raul S. Roco's, but far more cognizant of how overlawyering the proceedings was unpopular in the past.
  40. Share
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    THE PRESIDING OFFICER.  I just want to state this for the record, and for the consideration of the members of this court, as well as the two panels of lawyers representing both sides of this impeachment trial, while we are a court of record, we are not really strictly a court that maintains a record for purposes of appeal, because there is no appeal in this case.  And so, therefore, we are blazing a new trail, though the rules that were mentioned, in my humble opinion, are not applicable to this particular proceeding because there is no assignment of errors to be taught about for the future because there is no appeal, lying in the decision of this court, either we pronounce the respondent guilty or we say, he is not guilty, and either side, no appeal lying.  The end of the matter will be the verdict of this court. Unlike in an ordinary civil proceeding, civil case or in a criminal case, if the defendant is convicted, he can appeal to a higher court and assign removable errors of the lower court, or in a civil case, whoever losers in the civil case can appeal the case and assign removable errors in his appellate pleading.  In this case, there is no appeal, so, whatever we say, with respect to the evidence, with respect to the admissibility of the evidence, ends there. They are recorded for reference purposes, but the verdict will be rendered by this court on the basis of the appreciation, final and ultimate appreciation of each of the members of the Senate sitting as Judges, Jurors, in this—that is why I called it Jurors, because each one of us will form a judgement of this case of the respondent.  Once that judgement is rendered, we count the number of votes that will vote in favour of acquittal as well as the number of votes involving—that will be in favour of pronouncement of guilt and if it is guilt, whether we attain the 2/3 vote, which is an absolute 16 of all the Members of the Senate. So, all of these discussions are for our own guidance. But since there is no reversible error in this proceeding, because there is no appeal, we will take the bull by the horn when we reach the bridge, so to speak.  Okay.
    Unofficial Transcripts
    6 days ago

  41. V. Why it's so

  42. This is an interesting piece written by former Senate President Jovito Salonga in 2001, where he criticized the Senate of the time as too eager to turn impeachment into a judicial exercise. He gives reasons why this is wrong, and suggested a different approach --one apparently taken to heart by Senators such as Roco and others. It remains to be seen if this view will win out in the present impeachment.
  43. Another lawyer weighs in with a similar point, more recently:
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    Caution therefore must be  exercised in order to  prevent an overly-legalistic interpretation creating undue elements, uncompromising conditionalities and requirements, of what  probably should not be interpreted that strictly. Over-interpretation may lead to unjustified narrow legal applications rendering ineffective  the letter and the spirit of the Constitution. It can lead the impeachment proceeding in a direction  overly court-like with all its hindering-technicalities, and  remove it from a process  seeking  to achieve a more  significant policy statement beyond the guilt or non-guilt of the respondent. 
    OPINION: How should we define an 'Imp...
    4 days ago
  45. As observer Patricio Diaz points out, the law should not overrule the truth:
  46. Aside from technicalities, there has been, for lack of a better term, the Jesus Defense of Gloria Macapagal-Arroyo --"Let he who is without sin, cast the first stone." Manuel Buencamino in a commentary swiftly dispenses with this defense:
  47. Share
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    “Now I ask you,” as Sen. Joker Arroyo is wont to say in his tortuous soliloquies, but this is me asking myself a question, “why do we even bother to have cops, prosecutors, judges, and jailers if everyone is a sinner anyway and we already have someone who is without sin to cast the first stone?” The answer to that question is so obvious that I don’t have to be defense counsel Serafin Cuevas to raise a crooked finger and say, “Liding kweschon, Yerenner plis, not only that but it is also rhetorical so it does not require an answer, Yerenner.” Okay, I will reframe my question, “Are you nuts?” And the answer to my own question is, “No, because we need order in society and someone has to enforce it. We agreed among ourselves that, although we are all sinners, we have no choice but to employ fellow sinners to act as law enforcers—to be cops, prosecutors, judges, and jailers—so that we don’t have to live like animals, so that our lives do not become nasty, brutish, and short.” The answer does not end there. “Because we are all sinners and we appointed fellow sinners to uphold and enforce our rules, the cardinal rule then becomes ‘don’t get caught’ and not ‘he who is without sin cast the first stone’. That’s why when you break the law and you get caught you can’t go around wailing and getting indignant over the fact that you are not the only lawbreaker because, in fact, you are the only one stupid enough to get caught and you are now being stoned so that your fellow sinners can feel good about themselves.”
    Manuel Buencamino: Why me? - InterAks...
    4 days ago

  48. VI. What's next?

  49. Definitely, the decision of the Senate in caucus on March 6 is a crucial one --both for the prosecution, and the defense. But it will only be one of a whole series of decision points the Senate will have to reach, until it arrives at its verdict.
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