Public bidding - G.R. No. 201112

G.R. No. 201112

"x x x.

Considering, however, that the AES contract is not an ordinary contract as it involves procurement by a government agency, the rights and obligations of the parties are governed not only by the Civil Code but also by RA 9184. In this jurisdiction, public bidding is the established procedure in the grant of government contracts.  The award of public contracts, through public bidding, is a matter of public policy.[40] The parties are, therefore, not at full liberty to amend or modify the provisions of the contract bidded upon.

          The three principles of public bidding are: (1) the offer to the public; (2) an opportunity for competition; and (3) a basis for the exact comparison of bids.[41] By its very nature, public bidding aims to protect public interest by giving the public the best possible advantages through open competition.[42] Competition requires not only bidding upon a common standard, a common basis, upon the same thing, the same subject matter, and the same undertaking, but also that it be legitimate, fair and honest and not designed to injure or defraud the government.[43] The essence of competition in public bidding is that the bidders are placed on equal footing which means that all qualified bidders have an equal chance of winning the auction through their bids.[44]Another self-evident purpose of public bidding is to avoid or preclude suspicion of favoritism and anomalies in the execution of public contracts.[45]

          A winning bidder is not precluded from modifying or amending certain provisions of the contract bidded upon. However, such changes must not constitute substantial or material amendments that would alter the basic parameters of the contract and would constitute a denial to the other bidders of the opportunity to bid on the same terms.[46]The determination of whether or not a  modification or amendment of a contract bidded out constitutes a substantial amendment rests on whether the contract, when taken as a whole, would contain substantially different terms and conditions that would have the effect of altering the technical and/or financial proposals previously submitted by the other bidders. The modifications in the contract executed between the government and the winning bidder must be such as to render the executed contract to be an entirely different contract from the one bidded upon.[47]

Public bidding aims to secure for the government the lowest possible price under the most favorable terms and conditions, to curtail favoritism in the award of government contracts and avoid suspicion of anomalies, and it places all bidders in equal footing. Any government action which permits any substantial variance between the conditions under which the bids are invited and the contract executed after the award thereof is a grave abuse of discretion amounting to lack or excess of jurisdiction which warrants proper judicial action.[48] If this flawed process would be allowed, public bidding will cease to be competitive, and worse, government would not be favored with the best bid. Bidders will no longer bid on the basis of the prescribed terms and conditions in the bid documents but will formulate their bid in anticipation of the execution of a future contract containing new and better terms and conditions that were not previously available at the time of the bidding. Such a public bidding will not inure to the public good.[49]

In Power Sector Assets and Liabilities Management Corporation (PSALM) v. Pozzolanic Philippines Incorporated,[50] the Court nullified the right of first refusal granted to respondent therein in the Batangas Contract for being contrary to public policy. The Court explained that the same violated the requirement of competitive public bidding in the government contract, because the grant of the right of first refusal did not only substantially amend the terms of the contract bidded upon so that resultantly the other bidders thereto were deprived of the terms and opportunities granted to respondent therein after it won the public auction, but also altered the bid terms by effectively barring any and all true bidding in the future.[51] 

Also in Agan, Jr. v. Philippine International Air Terminals Co., Inc., (PIATCO),[52] this Court declared as null and void, for being contrary to public policy, the Concession Agreement entered into by the government with PIATCO, because it contained provisions that substantially departed from the Draft Concession Agreement included in the bid documents. The Court considered the subject contracts a mockery of the bidding process, because they were substantially amended after their award to the successful bidder on terms more beneficial to PIATCO and prejudicial to public interest.[53]

The same conclusions cannot be applied in the present case.

          One. Smartmatic-TIM was not granted additional right that was not previously available to the other bidders.  Admittedly, the AES contract was awarded to Smartmatic-TIM after compliance with all the requirements of a competitive public bidding.  The RFP, Bid Bulletins and the AES contract identified the contract as one of lease with option to purchase. The AES contract is primarily a contract of lease of goods[54] listed in the contract and purchase of services[55] also stated in the contract. Section 4.3 thereof gives the Comelec the OTP the goods agreed upon. The same provision states the conditions in exercising the option, including the additional amount that the Comelec is required to pay should it exercise such right.  It is, therefore, undisputed that this grant of option is recognized by both parties and is already a part of the principal contract of lease.  Having been included in the RFP and the bid bulletins, this right given to the Comelec to exercise the option was known to all the bidders and was considered in preparing their bids. The bidders were apprised that aside from the lease of goods and purchase of services, their proposals should include an OTP the subject goods. Although the AES contract was amended after the award of the contract to Smartmatic-TIM, the amendment only pertains to the period within which the Comelec could exercise the option because of its failure to exercise the same prior to the deadline originally agreed upon by the parties. Unlike in PSALM, wherein the winning bidder was given the right of first refusal which substantially amended the terms of the contract bidded upon, thereby depriving the other bidders of the terms and opportunities granted to winning bidder after it won the public auction; and in Agan, Jr., wherein the Concession Agreement entered into by the government with PIATCO contained provisions that substantially departed from the draft Concession Agreement included in the bid documents; the option contract in this case was already a part of the original contract and not given only after Smartmatic-TIM emerged as winner. The OTP was actually a requirement by the Comelec when the contract of lease was bidded upon. To be sure, the Extension Agreement does not contain a provision favorable to Smartmatic-TIM not previously made available to the other bidders.    

                  

          Two. The amendment of the AES contract is not substantial. The approved budget for the contract was P11,223,618,400.00[56] charged against the supplemental appropriations for election modernization. Bids were, therefore, accepted provided that they did not exceed said amount. After the competitive public bidding, Smartmatic-TIM emerged as winner and the AES contract was thereafter executed. As repeatedly stated above, the AES contract is a contract of lease with OTP giving the Comelec the right to purchase the goods agreed upon if it decides to do so. The AES contract not only indicated the contract price for the lease of goods and purchase of services which isP7,191,484,739.48, but also stated the additional amount that the Comelec has to pay if it decides to exercise the option which is P2,130,635,048.15.  Except for the period within which the Comelec could exercise the OTP, the terms and conditions for such exercise are maintained and respected. Admittedly, the additional amount the Comelec needed to pay was maintained (less the amount already paid when it purchased 920 units of PCOS machines with corresponding CCS for the special elections in certain areas in the provinces of Basilan, Lanao del Sur and Bulacan) subject to the warranties originally agreed upon in the AES contract. The contract amount not only included that for the contract of lease but also for the OTP. Hence, the competitive public bidding conducted for the AES contract was sufficient. A new public bidding would be a superfluity. 

          The Solicitor General himself clarified during the oral arguments that the purchase price of the remaining PCOS machines stated in the assailed Deed of Sale was the price stated in Article 4.3 of the AES contract. Therefore, the said amount was already part of the original amount bidded upon in 2009 for the AES contract which negates the need for another competitive bidding.[57]

         

Third.  More importantly, the amendment of the AES contract is more advantageous to the Comelec and the public.

The nature of an option contract was thoroughly explained in Eulogio v. Apeles,[58] to wit:

An option is a contract by which the owner of the property agrees with another person that the latter shall have the right to buy the former's property at a fixed price within a certain time. It is a condition offered or contract by which the owner stipulates with another that the latter shall have the right to buy the property at a fixed price within a certain time, or under, or in compliance with certain terms and conditions; or which gives to the owner of the property the right to sell or demand a sale. An option is not of itself a purchase, but merely secures the privilege to buy. It is not a sale of property but a sale of the right to purchase. It is simply a contract by which the owner of the property agrees with another person that he shall have the right to buy his property at a fixed price within a certain time. He does not sell his land; he does not then agree to sell it; but he does sell something, i.e., the right or privilege to buy at the election or option of the other party. Its distinguishing characteristic is that it imposes no binding obligation on the person holding the option, aside from the consideration for the offer.[59]

          Also in Carceller v. Court of Appeals,[60] the Court described an option in this wise:

            An option is a preparatory contract in which one party grants to the other, for a fixed period and under specified conditions, the power to decide, whether or not to enter into a principal contract. It binds the party who has given the option, not to enter into the principal contract with any other person during the period designated and, within that period, to enter into such contract with the one to whom the option was granted, if the latter should decide to use the option. It is a separate agreement distinct from the contract which the parties may enter into upon the consummation of the option.[61]

  In Adelfa Properties, Inc. v. CA,[62] the Court described an option as:

            An option, as used in the law on sales, is a continuing offer or contract by which the owner stipulates with another that the latter shall have the right to buy the property at a fixed price within a certain time, or under, or in compliance with, certain terms and conditions, or which gives to the owner of the property the right to sell or demand a sale. It is sometimes called an “unaccepted offer.” x x x[63]

          From the foregoing jurisprudential pronouncements, an option is only a preparatory contract and a continuing offer to enter into a principal contract. Under the set-up, the owner of the property, which is Smartmatic-TIM, gives the optionee, which is the Comelec, the right to accept the former’s offer to purchase the goods listed in the contract for a specified amount, and within a specified period. Thus, the Comelec is given the right to decide whether or not it wants to purchase the subject goods. It is, therefore, uncertain whether or not the principal contract would be entered into. The owner of the property would then have to wait for the optionee to make a decision. A longer option period would mean that more time would be given to the optionee to consider circumstances affecting its decision whether to purchase the goods or not.  On the part of Smartmatic-TIM, it would have to wait for a longer period to determine whether the subject goods will be sold to the Comelec or not, instead of freely selling or leasing them to other persons or governments possibly at a higher price. This is especially true in this case as the terms and conditions for the exercise of the option including the purchase price, had been included in the AES contract previously bidded upon. The parties are bound to observe the limitations embodied therein, otherwise, a new public bidding would be needed.

          We agree with respondents that the exercise of the option is more advantageous to the Comelec, because the P7,191,484,739.48 rentals paid for the lease of goods and purchase of services under the AES contract was considered part of the purchase price. For the Comelec to own the subject goods, it was required to pay onlyP2,130,635,048.15.  If the Comelec did not exercise the option, the rentals already paid would just be one of the government expenses for the past election and would be of no use to future elections. Assuming that the exercise of the option is nullified, the Comelec would again conduct another public bidding for the AES for the 2013 elections with its available budget of P7 billion. Considering that the said amount is the available fund for the whole election process, the amount for the purchase or lease of new AES will definitely be less than P7 billion.  Moreover, it is possible that Smartmatic-TIM would again participate in the public bidding and could win at a possibly higher price. The Comelec might end up acquiring the same PCOS machines but now at a higher price.

x x x."

Court personnel should be circumspect in their conduct. - A.M. No. SB-12-18-P

A.M. No. SB-12-18-P

"x x x .

 The image of a court of justice is mirrored in the conduct, official or otherwise, of the women and men who work in the judiciary, from the judge to the lowest of its personnel.[9]            Like the rest of the personnel of the Court, the shuttle bus drivers are expected to observe the norms and ethics of conduct of public officials and employees.[10]  Judiciary employees should be circumspect in how they conduct themselves inside and outside the office.[11] Any scandalous behavior or any act that may erode the people’s esteem for the judiciary is unbecoming of an employee.[12] Court employees are supposed to be well-mannered, civil and considerate in their actuations.[13] 

x x x."

Administrative case vs. Corona, Sereno dismissed. - A.M. No. 12-6-11-SC

A.M. No. 12-6-11-SC

"x x x.

Peña also sought to ascribe to Justice Carpio the alleged fact that Atty. Singson, counsel for Urban Bank, got an advance copy of the November 13, 2002 resolution and faxed it to him on November 19, days before the Court released it for mailing.  But, Peña has been unable to show that this advance copy came from Justice Carpio.  Besides, the record shows that the First Division released the resolution for dissemination on November 14, days before Atty. Singson faxed a copy to Peña. Moreover, it was the Division Clerk of Court, not Justice Carpio, who had the duty to release decisions and resolutions for dissemination.[2]  

In the case at bar, complainant also seeks disciplinary action against Justice Carpio for allegedly taking cognizance of Urban Bank’s Motion for Clarification of which respondent was allegedly not furnished a copy of, and for issuing the November 13, 2002 clarificatory resolution without first requiring complainant to comment on Urban Bank’s Motion. Moreover, the November 13, 2002 resolution allegedly caused irreparable damage to complainant and other auction buyers and destroyed the credibility and sanctity of valid auction sales.

Judicial remedies were available to complainant in the main cases. In fact, the allegations in the present complaint are a mere rehash of the allegations in complainant’s Urgent Omnibus Motion (To Expunge Motion for Clarification and Recall of the 13 November 2002 Resolution) dated December 9, 2002 and Urgent Motion to Inhibit and to Resolve Respondent’s Urgent Omnibus Motion dated January 30, 2003 filed in the main cases, which, in fact, have already been decided on October 19, 2011.

Peña charges Justice Sereno of unfairly refusing to inhibit herself from taking part in the deliberation in the main cases notwithstanding that Justice Carpio’s former law office supposedly worked for her appointment in the Supreme Court.  But the Court had already found in its April 17, 2012 per curiam decision  in A.C. No. 6332 that this charge has no “extrinsic factual evidence to support it.”  The charge is purely conjectural.

WHEREFORE, Magdaleno M. Peña’s complaint against Justices Antonio T. Carpio and Maria Lourdes P.A. Sereno is hereby DISMISSED for lack of merit.

SO ORDERED.

 x x x."

SC recognizes Senate decision convicting CJ Corona - A.M. No. 12-6-10-SC

A.M. No. 12-6-10-SC

"x x x.

R E S O L U T I O N

PER CURIAM:

          Considering the Judgment dated May 29, 2012 of the Senate sitting as an Impeachment Court, which found Chief Justice Renato C. Corona guilty of the charge under Article II of the Articles of Impeachment, with the penalty of removal from office and disqualification to hold any office under the Republic of the Philippines as provided in Section 3(7), Article XI of the Constitution, the complaint against the Honorable Chief Justice Renato C. Corona dated September 14, 2011 filed by Inter-Petal Recreational Corporation is hereby DISMISSED for having become MOOT AND ACADEMIC.”

SO ORDERED.

x x x."

Expert witness - FindLaw | Cases and Codes

FindLaw | Cases and Codes

"x x x.

WILLIAMS v. ILLINOIS

certiorari to the supreme court of illinois

No. 10-8505. Argued December 6, 2011--Decided June 18, 2012

At petitioner's bench trial for rape, Sandra Lambatos, a forensic specialist at the Illinois State Police lab, testified that she matched a DNA profile produced by an outside laboratory, Cellmark, to a profile the state lab produced using a sample of petitioner's blood. She testified that Cellmark was an accredited laboratory and that business records showed that vaginal swabs taken from the victim, L. J., were sent to Cellmark and returned. She offered no other statement for the purpose of identifying the sample used for Cellmark's profile or establishing how Cellmark handled or tested the sample. Nor did she vouch for the accuracy of Cellmark's profile. The defense moved to exclude, on Confrontation Clause grounds, Lambatos' testimony insofar as it implicated events at Cellmark, but the prosecution said that petitioner's confrontation rights were satisfied because he had the opportunity to cross-examine the expert who had testified as to the match. The prosecutor argued that Illinois Rule of Evidence 703 permitted an expert to disclose facts on which the expert's opinion is based even if the expert is not competent to testify to those underlying facts, and that any deficiency went to the weight of the evidence, not its admissibility. The trial court admitted the evidence and found petitioner guilty. Both the Illinois Court of Appeals and the State Supreme Court affirmed, concluding that Lambatos' testimony did not violate petitioner's confrontation rights because Cellmark's report was not offered into evidence to prove the truth of the matter
asserted.

Held: The judgment is affirmed.

238 Ill. 2d 125, 939 N. E. 2d 268, affirmed.

     Justice Alito, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that the form of expert testimony given in this case does not violate the Confrontation Clause. Pp. 10-33.

     (a) Before Crawford v. Washington, 541 U. S. 36, this Court took the view that the Confrontation Clause did not bar the admission of out-of-court statements that fell within a firmly rooted exception to the hearsay rule. InCrawford, the Court held that such statements could be "admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id., at 59. In both Melendez-Diaz v.Massachusetts, 557 U. S. 305, and Bullcoming v. New Mexico, 564 U. S. ___, two of the many cases that have arisen from Crawford, this Court ruled that scientific reports could not be used as substantive evidence against a defendant unless the analyst who prepared and certified the report was subject to confrontation. In each case, the report at issue "contain[ed] a testimonial certification, made in order to prove a fact at a criminal
trial." 564 U. S., at ___-___. Here, in contrast, the question is the constitutionality of allowing an expert witness to discuss others'
testimonial statements if those statements are not themselves admitted as evidence. Pp. 10-13.

     (b) An expert witness may voice an opinion based on facts concerning the events at issue even if the expert lacks first-hand knowledge of those facts. A long tradition in American courts permits an expert to testify in the form of a "hypothetical question," where the expert assumes the truth of factual predicates and then offers testimony based on those assumptions. See Forsyth v. Doolittle, 120 U. S. 73, 77. Modern evidence rules dispense with the need for hypothetical questions and permit an expert to base an opinion on facts "made known to the expert at or before the hearing," though such reliance does not constitute admissible evidence of the underlying information. Ill. Rule Evid. 703; Fed. Rule Evid. 703. Both Illinois and Federal Rules bar an expert from disclosing the inadmissible evidence in jury trials but not in bench trials. This is important because Crawford, while departing from prior Confrontation Clause precedent in other respects, reaffirmed the proposition that the Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." 541 U. S., at 59, n. 9. Pp. 13-16.

     (c) For Confrontation Clause purposes, the references to Cellmark in the trial record either were not hearsay or were not offered for the truth of the matter asserted. Pp. 16-27.

          (1) Petitioner's confrontation right was not violated when Lambatos answered "yes" to a question about whether there was a match between the DNA profile "found in semen from the vaginal swabs of [L. J.]" and the one identified as petitioner's. Under Illinois law, this putatively offending phrase was not admissible for the purpose of proving the truth of the matter asserted--i.e., that the matching DNA profile was "found in semen from the vaginal swabs." Rather, that fact was a mere premise of the prosecutor's question, and Lambatos simply assumed it to be true in giving her answer. Because this was a bench trial, the Court assumes that the trial judge understood that the testimony was not admissible to prove the truth of the matter asserted. It is also unlikely that the judge took the testimony as providing chain-of-custody evidence. The record does not support such an understanding; no trial judge is likely to be so confused; and the admissible evidence left little room for argument that Cellmark's sample came from any source but L. J.'s swabs, since the profile matched the very man she identified in a lineup and at trial as her attacker. Pp. 16-21.

          (2) Nor did the substance of Cellmark's report need to be introduced in order to show that Cellmark's profile was based on the semen in L. J.'s swabs or that its procedures were reliable. The issue here is whether petitioner's confrontation right was violated, not whether the State offered sufficient foundational evidence to support the admission of Lambatos' opinion. If there were no proof that Cellmark's profile was accurate, Lambatos' testimony would be irrelevant, but the Confrontation Clause bars not the admission of irrelevant evidence, but the admission of testimonial statements by declarants who are not subject to cross-examination. Here, the trial record does not lack admissible evidence with respect to the source of the sample tested by Cellmark or the reliability of its profile. The State offered conventional chain-of-custody evidence, and the match between Cellmark's profile and petitioner's was telling confirmation that Cellmark's profile was deduced from the semen on L. J.'s swabs. The match also provided strong circumstantial evidence about the reliability of Cellmark's work. Pp. 21-25.

          (3) This conclusion is consistent with Bullcoming and Melendez-Diaz, where forensic reports were introduced for the purpose of proving the truth of what they asserted. In contrast, Cellmark's report was considered for the limited purpose of seeing whether it matched something else, and the relevance of that match was established by independent circumstantial evidence showing that the report was based on a sample from the crime scene. There are at least four safeguards to prevent abuses in such situations. First, trial courts can screen out experts who would act as conduits for hearsay by strictly enforcing the requirement that experts display genuine "scientific, technical, or other specialized knowledge" to help the trier of fact understand the evidence or determine a fact at issue. Fed. Rule Evid. 702(a). Second, experts are generally precluded from disclosing inadmissible evidence to a jury. Third, if such evidence is disclosed, a trial judge may instruct the jury that the statements cannot be accepted for their truth, and that an expert's opinion is only as good as the independent evidence establishing its underlying premises. Fourth, if the prosecution cannot muster independent admissible evidence to prove foundational facts, the expert's testimony cannot be given weight by the trier of fact. Pp.  25-27.

          (e) Even if Cellmark's report had been introduced for its truth, there would have been no Confrontation Clause violation. The Clause refers to testimony by "witnesses against" an accused, prohibiting modern-day practices that are tantamount to the abuses that gave rise to the confrontation right, namely, (a) out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct, and (b) formalized statements such as affidavits, depositions, prior testimony, or confessions. These characteristics were present in every post-Crawford case in which a Confrontation Clause violation has been found, except forHammon v. Indiana, 547 U. S. 813. But, even in Hammon, the particular statement, elicited during police interrogation, had the primary purpose of accusing a targeted individual. A person who makes a statement to resolve an ongoing emergency is not like a trial witness because the declarant's purpose is to bring an end to an ongoing threat. Michigan v. Bryant, 562 U. S. ___, ___. Such a statement's admissibility "is the concern of . . . rules of evidence, not the Confrontation Clause. " Id., ___-___ . The forensic reports in Melendez-Diaz andBullcoming ran afoul of the Confrontation Clause because they were the equivalent of affidavits made for the purpose of proving a particular criminal defendant's guilt. But the Cellmark report's primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time. Nor could anyone at Cellmark possibly know that the profile would inculpate petitioner. There was thus no "prospect of fabrication" and no incentive to produce anything other than a scientifically sound and reliable profile. Bryant, supra, at ___, ___. Lab technicians producing a DNA profile generally have no way of knowing whether it will turn out to be incriminating, exonerating, or both. And with numerous technicians working on a profile, it is likely that each technician's sole purpose is to perform a task in accordance with accepted procedures. The knowledge that defects in a DNA profile may be detected from the profile itself provides a further safeguard. Pp. 28-33.

     Justice Thomas concluded that the disclosure of Cellmark's out-of-court statements through Lambatos' expert testimony did not violate the Confrontation Clause solely because Cellmark's statements lacked the requisite "formality and solemnity" to be considered " 'testimonial,' " see Michigan v. Bryant, 562 U. S. ___, ___ (Thomas, J., concurring in judgment). Pp. 1-16.

     (a) There was no plausible reason for the introduction of Cellmark's statements other than to establish their truth. Pp. 1-8.

          (1) Illinois Rule of Evidence 703 permits an expert to base his opinion on facts about which he lacks personal knowledge and to disclose those facts to the trier of fact. Under Illinois law, such facts are not admitted for their truth, but only to explain the basis of the expert's opinion. See People v. Pasch, 152 Ill. 2d 133. But state evidence rules do not trump a defendant's constitutional right to confrontation. This Court ensures that an out-of-court statement was introduced for a "legitimate, nonhearsay purpose" before relying on the not-for-its-truth rationale to dismiss the Confrontation Clause's application. See Tennessee v. Street, 471 U. S. 409, 417. Statements introduced to explain the basis of an expert's opinion are not introduced for a plausible nonhearsay purpose because, to use the basis testimony in evaluating the expert's opinion, the factfinder must consider the truth of the basis testimony. This commonsense conclusion is not undermined by any historical practice exempting expert basis testimony from the rigors of the Confrontation Clause. Before the Federal Rules of Evidence were adopted in 1975, an expert could render an opinion based only on facts that the expert had personally perceived or learned at trial. In 1975, that universe of facts was expanded to include facts that the expert learned out of court by means other than his own perception. The disclosure of such facts raises Confrontation Clause concerns. Pp. 2-5.

          (2) Those concerns are fully applicable here. In concluding that petitioner's DNA profile matched the profile derived from L. J.'s swabs, Lambatos relied on Cellmark's out-of-court statements that its profile was in fact derived from those swabs, rather than from some other source. Thus, the validity of Lambatos' opinion ultimately turned on the truth of Cellmark's statements. Pp. 5-7.

     (b) These statements, however, were not "testimonial" for purposes of the Confrontation Clause, which "applies to 'witnesses' against the accused--in other words, those who 'bear testimony.' " Crawford v.Washington, 541 U. S. 36, 51. " 'Testimony,' " in turn, is " '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " Ibid. In light of its text, the Confrontation Clause regulates only the use of statements bearing "indicia of solemnity." Davis v. Washington, 547 U. S. 813, 836-837, 840 (opinion of Thomas, J.). This test comports with history because solemnity marked the practices that the Confrontation Clause was designed to eliminate, namely, the ex parte examination of witnesses under English bail and committal statutes. See id., at 835. Accordingly, the Clause reaches "formalized testimonial materials," such as depositions, affidavits, and prior testimony, or statements resulting from "formalized dialogue," such as custodial interrogation. Bryant, supra, at ___. Applying these principles, Cellmark's report is not a statement by a "witnes[s]" under the Confrontation Clause. It lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact. And, although it was produced at the request of law enforcement, it was not the product of formalized dialogue resembling custodial interrogation. Melendez-Diaz, 557 U. S. 305, andBullcoming v. New Mexico, 564 U. S. ___, distinguished. Pp. 8-15.

     Alito, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Kennedyand Breyer, JJ., joined. Breyer, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment. Kagan, J., filed a dissenting opinion, in which Scalia, Ginsburg, and Sotomayor, JJ., joined.

---

Opinion of Alito, J.  567 U. S. ____ (2012) WILLIAMS v. ILLINOIS NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES No. 10-8505

SANDY WILLIAMS, PETITIONER v. ILLINOIS

on writ of certiorari to the supreme court of
illinois

[June 18, 2012]

x x x."

How to Win Friends and Influence Juries - Insider Tips - Strategist

How to Win Friends and Influence Juries - Insider Tips - Strategist

"x x x.

How to Win Friends and Influence Juries

By Edward Tan, JD on June 13, 2012 5:03 AM | No TrackBacks

Ask most trial attorneys what's the hardest part about their job and they'll probably say winning over a jury. It's no easy task. People are fickle and can be influenced in very unpredictable ways. So wouldn't it be great if you could just hack a juror's minds?

It might actually be possible. And no, this doesn't require some "Matrix" type human modifications. All you need for this feat is your voice, according to an article in Psychology Today.

How does it work? It's actually pretty simple.

The way a person speaks has a huge impact on how others perceive them. While this may seem obvious, that's not the whole revelation.

To our unconscious minds, what or how a person says something isn't the only factor that influences our opinion of a speaker. Rather, the sound of a person's voice is actually one of the most important aspects our brains consider, according to the article. This is especially true when we're trying to determine a person's credibility.

For instance, the article cites that a person's mind tends to associate those who speak in a higher pitched voice as being less truthful. In addition, those who talk too slowly or with too many pauses also are deemed less credible. President Obama has been criticized for being notorious for speaking with too slowly or pausing.

Conversely, those who speak in deeper more expressive tones were often associated with higher intelligence and trustworthiness.

So what does this mean for trial lawyers? It might suggest that when you have to present your case to a jury, lowering the pitch and tenor of your voice could curry more favor. While it can be hard to change your natural speaking voice, doing so could be the mind hack you need to win over those stubborn juries.

Related Resources:

• Boost Your Credibility by Speaking with Expression (Lifehacker)
• Lies in Jury Selection May Lead to New Trial (FindLaw's Law & Daily Life)
• Do Your Clients Think You're Incompetent? (FindLaw's Strategist)
• Who Makes a Better Attorney: Extroverts or Introverts? (FindLaw's Strategist)

x x x."

(97) Coverage of Summary Procedure - Marlo Campanilla on Monday, June 18, 2012

(97) Coverage of Summary Procedure -  Marlo Campanilla on Monday, June 18, 2012

"x x x.

Under Section 32 (2) of BP Blg. 29, MTC shall exercise exclusive original jurisdiction over all offenses with imprisonment not exceeding 6 years "irrespective of the amount of the amount of fine." According to Administrative Circular No. 09-94, The amended version of Section 32 (2) is applicable if the offense is punishable by imprisonment or fine or both. If the offense is punishable by fine only, the original version of Section 32 applies is applicable. Under this old provision, MTC shall exercise exclusive original jurisdiction over all offenses with a fine not exceeding P4,000.

Section 1 (4) of the Revised Rules on Summary Procedure provides that this rule shall govern criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding 6 months or a fine not exceeding P1,000 or both. 

For purposes of determining the jurisdiction of MTC where the penalty prescribed for the offense is both imprisonment and fine, the amount of fine should be disregarded because of the phrase “irrespective of the amount of fine” in Section 32 of BP Blg 129.

For purposes of determining the applicability of summary procedure where the penalty prescribed is both imprisonment and fine, the amount of fine should not be disregarded since the phrase “irrespective of the amount of fine” is not found in Section 1 (4) of the Revised Rules on Summary Procedure. What is explicit under provision is the mandate that to place a criminal case under the summary rules both, fine and imprisonment must not exceed the limits provided for under the rule.

Moreover, in conjunction with imprisonment, a fine is as much a principal penalty as the imprisonment. Neither is subordinate to the other (People v. Crisostomo, G.R. No. L-16945, August 31, 1962) .” Hence, the penalty of imprisonment and fine should not be split into two (People v. Cuello, G.R. No. L-14307, March 27, 1961) for purposes of determining the coverage of the Rules on Summary Procedure.

x x x."

Briefer: The Judicial and Bar Council | Official Gazette of the Republic of the Philippines

Briefer: The Judicial and Bar Council | Official Gazette of the Republic of the Philippines

Read full text. Click the link above.

"x x x.

The Judicial and Bar Council

The Judicial and Bar Council’s primary task is to recommend appointees to the Judiciary and the Office of the Ombudsman for the President’s perusal. The council aims to enhance the quality of the search, screening, and selection process, as well as insulate the process from undue influence of any kind.

An important function of the Judicial Bar Council (JBC) is the creation of a list of nominees for the position of Chief Justice of the Supreme Court. Below is the process in brief (for more details, see Section IV): x x x."

What The Founding Fathers Thought About Corporations | Addicting Info

What The Founding Fathers Thought About Corporations | Addicting Info

"x x x.

Citizens United. This is the 2010 Supreme Court case that shocked America, influenced an election, and reversed over 100 years of campaign finance laws. In this case, corporations were declared as people and as such declared to have the same rights as people do. It also opened the doors for corporations to pour unprecedented amounts of campaign donations into elections, and what’s more, these donations can be totally secret. Corporations can now literally and legally buy elections and shape the government like never before in our nation’s history.

The economic world we live in today is dominated by corporations. Huge corporations that boast massive profits and span continents. But corporations also wield political power and are lobbying heavily to be free from any and all government regulations that would make them responsible and liable. Republicans have been defending corporations since the late 1800′s and have literally gone on a history revising crusade to show that even the founding fathers supported corporations. But is this the case? What did the founders really think about corporations?

The origin of modern corporations can be traced all the way back to 17th century England when Queen Elizabeth I created the East India Trading Company. At first, corporations were small, quasi government institutions that were chartered by the crown for a specific purpose. If corporations stepped out of line, the crown did not hesitate to revoke their charters. Corporations generated so much revenue that they even began taking on increased political power. Corporations were also organized to finance large projects such as exploration, which leads us to the American colonies.

To say that the founding fathers supported corporations is very absurd. Its quite the opposite in fact. Corporations like the East India Trading Company were despised by the founders and they were just one reason why they chose to revolt against England. Corporations represented the moneyed interests much like they do today and they often wielded political power, sometimes to the point of governing a colony all by themselves like the Massachusetts Bay Company did.

But there is more evidence that the Revolutionary generation despised corporations. The East India Company was the largest corporation of its day and its dominance of trade angered the colonists so much, that they dumped the tea products it had on a ship into Boston Harbor which today is universally known as the Boston Tea Party. At the time, in Britain, large corporations funded elections generously and its stock was owned by nearly everyone in parliament. The founding fathers did not think much of these corporations that had great wealth and great influence in government. And that is precisely why they put restrictions upon them after the government was organized under the Constitution.

After the nation’s founding, corporations were granted charters by the state as they are today. Unlike today, however, corporations were only permitted to exist 20 or 30 years and could only deal in one commodity, could not hold stock in other companies, and their property holdings were limited to what they needed to accomplish their business goals. And perhaps the most important facet of all this is that most states in the early days of the nation had laws on the books that made any political contribution by corporations a criminal offense. When you think about it, the regulations imposed on corporations in the early days of America were far harsher than they are now. That is hardly proof that the founders supported corporations. In fact its quite the opposite. The corporate entity was so restrictive that many of America’s corporate giants set up their entities to avoid the corporate restrictions. For example, Andrew Carnegie set up his steel company as a limited partnership and John D. Rockefeller set up his Standard Oil company as a trust which would later be rightfully busted up into smaller companies by Theodore Roosevelt.

For those who need more evidence, how about statements from the founders themselves. As we all know, big banks are also considered corporations and here is what Thomas Jefferson thought about them. In an 1802 letter to Secretary of State Albert Gallatin, Jefferson said,

“If the American people ever allow private banks to control the issue of their money, first by inflation and then by deflation, the banks and corporations that will grow up around them (around the banks), will deprive the people of their property until their children will wake up homeless on the continent their fathers conquered.”

Thomas Jefferson also said this in 1816,

“I hope that we shall crush in its birth the aristocracy of our monied corporations, which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country.”

Jefferson wasn’t the only founding father to make statements about corporations. John Adams also had an opinion.

“Banks have done more injury to the religion, morality, tranquility, prosperity, and even wealth of the nation than they can have done or ever will do good.”

x x x."

The Benefits Of Building A Relationship With A Law Firm | SMALL BUSINESS CEO

The Benefits Of Building A Relationship With A Law Firm | SMALL BUSINESS CEO

"x x x.

Entrepreneurs and business leaders are faced with a variety of challenges on a daily basis. Some of the most difficult challenges business owners face are those that concern matters of law. Even the most experienced business leader may be at a loss when it comes to the ins and outs of legal documents, actions and proceedings.

Instead of making risky guesses on legal matters, business leaders and entrepreneurs can place their trust in law firms. Businesses of all sizes can benefit from keeping a law firm on retainer. Having a firm on retainer essentially means that a business leader has an advocate on his or her side whenever needed.

A law firm can help a business deal with routine legal issues as they arise. All business leaders must keep up with a variety of legal issues. Doing so can be difficult, especially for busy executives. A law firm can provide for these basic legal needs.

In an ever-changing business landscape, some business leaders simply need advice when new legal issues arise within their industries. Others need help completing regular filings for the municipality or state in which they operate. A law firm can handle these tasks, ensuring that business leaders do not fall behind.

A qualified law firm can provide timely, accurate advice regarding the legality of new business practices. On occasion, a business leader may want to implement new business practices or procedures but may be unsure of the legality of such practices.

It is essential to get advice from an attorney prior to putting new procedures in place. This is particularly true if the new procedures will affect employees or have an environmental impact.

A law firm can handle any issues with employees as they arise. Employment law is one of the trickiest obstacles business leaders must negotiate. In order to stay on the right side of employment law, executives will need to consult with a qualified lawyer about legal employment practices and employer’s rights.

Should an employee bring a legal action against a company, it is absolutely essential that a legal team be in place to address the threat. Business leaders can save big by allowing attorneys to adjudicate when problems with employees arise.

A qualified law firm can help settle disputes between businesses and their clients or vendors. Disputes between businesses and their clients or vendors can be damaging to both parties. Qualified lawyers can help settle disagreements. They can also help pursue clients who do not pay for services or who otherwise violate an agreement made with a business.

In today’s competitive business climate, keeping a law firm on retainer is absolutely essential to the survival of a business. Entrepreneurs and business leaders can receive extra guidance from their lawyers. They can rest assured that any legal issues will be settled quickly and with the utmost in discretion.

About The Guest Author:  Jeremy Sherman is an independent writer for Lawyers.com with a particular interest in small business law and entrepreneurship.

Business Women Greeting Photo via Shutterstock

x x x."

New York State Assembly Approves Medical Marijuana Law | Just Say Now

New York State Assembly Approves Medical Marijuana Law | Just Say Now

"x x x.

Yesterday the New York State Assembly approvedAB 7347, a bill that would legalize medical marijuana in the state for certified patients with serious illnesses. The bill passed the chamber by a vote of 90-50 and it will now head to the Senate.

According to the office of the Speaker of the Assembly the law would:

• allow a licensed practitioner to certify that a patient has a serious condition (under statutory criteria) for which they are likely to receive palliative or therapeutic benefit from treatment with the medical use of marijuana;
• allow a certified patient or designated caregiver who is registered with the state Department of Health to possess up to two and one half ounces of marijuana;
• authorize the state Department of Health to license and regulate “registered organizations and producers” to dispense medical marijuana for certified patients; and
• authorize the state Department of Health to issue registry identification cards to certified patients and designated caregivers.

Medical marijuana is expected to have a tougher time getting approval in the more conservative New York State Senate which is currently controlled by Republicans. While Democratic governor Andrew Cuomo has so far neither endorsed nor promised to veto the bill, his recent public statements about medical marijuana have been lukewarm at best.

Recent polling does show that the voters of New York overwhelmingly want the Senate to follow the Assembly’s lead on this issue, they want Cuomo to sign a medical marijuana bill if it gets to his desk. 61 percent of New York Voters support legalizing marijuana for medical use, just 33 percent oppose the reform.

x x x."

When courts pretend it's not about race - CNN.com

When courts pretend it's not about race - CNN.com

"x x x.

Editor's note: Sherrilyn A. Ifill is a professor at the University of Maryland School of Law and the chairwoman of the U.S. Programs Board of the Open Society Foundations. She is the author of "On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century."

(CNN) -- The United States has a dignity problem. The concept of dignity is recognized by law in countries all over the world. It is a cornerstone of both international humanitarian law, which governs the treatment of prisoners of war, and international human rights law.

But it has little power in American jurisprudence. A robust recognition and protection of dignity is precisely what we need, particularly if we are to understand how racism has broken its tether and become enshrined again in state laws and policies across the United States.

Take racial profiling -- the single most explicit manifestation of racial prejudice in the United States today. Nearly 700,000 individuals a year are subject to the brutal indignity of the New York Police Department's stop-and-frisk policy. The vast majority are young African-American and Latino men. In a New York Times op-ed in December, 23-year-old Nicholas Peart heart-rendingly described his initiation into the world of stop-and-frisk beginning at age 14. This rite of passage for innocent young black men requires submitting without complaint or question to being harassed and targeted by the police. Even showing an "attitude" can escalate encounters into an arrest or even death.

Sherrilyn A. Ifill

Stop-and-frisk policing is only one aspect of the national indignity of racial profiling. Police surveillance of law-abiding Muslims (here again the New York police play a central role) and the pulling over of motorists for "driving while black" are two others. Rather than recognize how these practices strike at our bedrock constitutional rights to due process, equal protection and freedom from unreasonable searches, the Supreme Court recently doubled down on racial profiling. It decided that the discretion of police may be complemented by the discretion of jail officials to strip-search the 14 million Americans who are arrested each year.

In this way, the conservative majority on the court is turning back the clock on the greatest successes of the civil rights movement -- the understanding that the Civil War amendments to the Constitution were designed to uphold the inherent dignity of blacks as human beings and citizens.

Even more alarming and insidious is the court's ability to provide legal support for racial profiling without ever mentioning race. In key, high-profile cases in which racial profiling was either explicitly or implicitly at the core of the complaint, the conservative majority simply ignores the racial implications of sweeping decisions that leave racial minorities subject to arbitrary law enforcement practices.

Opinion: A jury's race can deny justice

In 2010 in Ashcroft v. Iqbal, a case brought by a Pakistani man who argued that racial and religious profiling after 9/11 resulted in his arrest and mistreatment in jail in New York, the court raised the standard for complainants in civil cases. It insisted that plaintiffs must show before discovery that their claim appears plausible to a trial judge. The court expressed confidence in the "common sense and experience" of trial judges to know a plausible discrimination claim when they hear one. The court also found it implausible that federal law enforcement officials might have engaged in racial profiling after 9/11.

In 2011 in Connick v. Thompson, the court held that a black man railroaded by the district attorney's office in New Orleans and convicted of a murder he did not commit could not recover a judgment in a civil rights action he brought and won after serving 14 years on death row. Just a month ago in Florence v. Board of Chosen Freeholders, the court held that jail officials were legally entitled to strip-search an African-American businessman, Albert Florence, twice after he was wrongly arrested and held for a week in two New Jersey jails. In each case, the conservative majority never once addressed the racial context or racial implications of their decisions.

The court appears poised to do the same next month in the case involving Arizona immigration law, which gives local police the right to demand proof of citizenship from people they suspect are here illegally. This is at bottom a license for nationwide racial profiling under the guise of immigration enforcement and state's rights. Perhaps this is why Chief Justice John Roberts insisted on limiting the parameters of the case by stating at the outset of the solicitor general's argument, "I'd like to clear up what (this case is) not about. No part of your argument has to do with racial or ethnic profiling."

The meek acquiescence of the solicitor general to this judicial bullying was a failure of colossal proportions. The conservative majority may have the power to legalize racial profiling in this country, but they should not be permitted to pretend that this is not precisely what they are doing.

This is precisely why we need a more robust and coherent understanding of how the concept of dignity underlies key provisions of our Constitution. Although the Constitution does not include an explicit right to dignity, as one scholar has recently explained, the Supreme Court has long invoked dignity interests in its decisions.

Civil rights lawyers, scholars and activists need to remind the court and our nation about the centrality of dignity to our core constitutional protections. Without this understanding, this court will continue unchecked until racial minorities in this country find themselves once again in a posture of abject indignity before the irrational policies of the state.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

x x x."

For better judiciary, reforms in appointment process needed | ABS-CBN News

For better judiciary, reforms in appointment process needed | ABS-CBN News

Read full text. Click the link above. 

"x x x.

Two decades after its creation by the Constitution, the Judicial and Bar Council remains an institution critics say is riddled with “systemic deficiencies” and even defects, and is badly in need of reforms.

While some of the reforms being proposed by lawyers, judges and civil society would require amendments to the 1987 Constitution, others can be implemented with simple policy issuances, especially by the President.

Some of proposed reforms involve altering the composition of the JBC, while others have to do with improving its processes. Still others stress the need to rethink the question who could best appoint the country’s justices and judges in a transparent and competent manner and to ensure their independence.

x x x."

History as the ultimate judge

sc.judiciary.gov.ph/pio/speeches/06-11-12-speech.pdf

Read full text. Click the link above.


"x x x.


While  the  decisions  of  the  Supreme  Court  are  final  in  the  legal  sense,
they  are  nevertheless  subject  to  review  by  history,  which  is  the  collective
judgment of   legal   scholars  and historians.    Justices  of  the highest  court  cannot escape the judgment of history.   The final judge of the beneficial or detrimental effects  of  Supreme  Court  decisions  is  history.    When  a  Justice  of  the  U.S. Supreme Court writes a decision, he may very well ask himself, “Will history judge this as the Dred Scott    of  this   Court?”       When  a  Justice  of  the   Philippine Supreme Court writes his decision, he may also ask himself, “Will history judge this as the Executive Secretary v. Javellana  of   this  Court?”     Dred Scott  brought the U.S. Supreme Court to its lowest point in its history.   Executive Secretary v. Javellana,   in  my  humble  opinion,  brought   the   Philippine  Supreme  Court  to  its lowest point in its history."

x x x."

- SC SAJ A. Carpio.

Doctrine of exhaustion of administrative remedies; exceptions. - G.R. No. 194024

G.R. No. 194024

"x x x.

The doctrine of exhaustion of administrative remedies is a cornerstone of our judicial system. The thrust of the rule is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence.[42]  It has been held, however, that the doctrine of exhaustion of administrative remedies and the doctrine of primary jurisdiction are not ironclad rules.  In the case of Republic of the Philippines v. Lacap,[43] the Court enumerated the numerous exceptions to these rules, namely: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively so small as to make the rule impractical and oppressive; (e)where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) where the application of the doctrine may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) where the issue of non-exhaustion of administrative remedies has been rendered moot; (j) where there is no other plain, speedy and adequate remedy; (k) where strong public interest is involved; and (l) in quo warranto proceedings.[44][Underscoring supplied]  

x x x."