What is an Affidavit of Desistance?

- By criminologists

Affidavit of Desistance
- an affidavit (a written statement of facts voluntarily made by an affiant under an oath or
affirmation administered by a person authorized to do so by law based upon the affiants
personal knowledge, information and belief)
- It is an affidavit stating that the affiant/complainant does not really intend to institute the case
and that he is no longer interested in testifying or prosecuting it.
- It is a ground for dismissing the case because the prosecution can no longer prove the guilt of
the accused beyond reasonable doubt without the testimony of the offended party.

Related: Affidavit of Recantation

Recantation on the other hand means - the witness who previously gave a testimony subsequently
declares that his/her statements were not true.

Effect of Affidavit of Desistance in Criminal Case

It does not bar the People from prosecuting the criminal action.
But it does operate as a waiver of the right to pursue civil indemnity.

Perez v. Hagonoy Rural Bank, Inc. 327 SCRA 588

An offended party in a criminal case has sufficient personality to file a special civil action for
certiorari, in proper cases, even without the imprimatur of the State. In so doing, the complainant
should not bring the action in the name of the People of the Philippines. The action may be
prosecuted in the name of the said complainant.

Effect of Desistance By Offended Party IN CRIMINAL CASE

It does not bar the People of the Philippines from prosecuting the criminal action, but it operates as
a waiver of the right to pursue civil indemnity.

An affidavit of desistance cannot justify dismissal of the complaint IF MADE AFTER (and not
before) the institution of the criminal action.

Effect of Affidavit of Desistance IN CIVIL CASE

Where the criminal case was dismissed BEFORE TRIAL because the offended party executed an
affidavit of desistance, the civil action thereof is similarly dismissed.

Bar Exam 2003

Before the arraignment for the crime of murder, the private complainant executed an Affidavit of
Desistance stating that she was not sure if the accused was the man who killed her husband. The
public prosecutor filed a Motion to Quash the Information on the ground that with private
complainants desistance, he did not have evidence sufficient to convict the accused. On 02
January 2001, the court without further proceedings granted the motion and provisionally dismissed
the case.
The accused gave his express consent to the provisional dismissal of the case. The offended party
was notified of the dismissal but she refused to give her consent.
Subsequently, the private complainant urged the public prosecutor to refile the murder charge
because the accused failed to pay the consideration which he had promised for the execution of the
Affidavit of Desistance. The public prosecutor obliged and refiled the murder charge against the
accused on 01 February 2003, the accused filed a Motion to Quash the Information on the ground
that the provisional dismissal of the case had already become permanent. (6%)

a. Was the provisional dismissal of the case proper? b. Resolve the Motion to Quash.

SUGGESTED ANSWER:
a) The provisional dismissal of the case was proper because the accused gave his express consent
thereto and the offended party was notified. It was not necessary for the offended party to give
her consent thereto.(Sec.8 of Rule 117).
b) The motion to quash the information should be denied because, while the provisional dismissal
had already become permanent, the prescriptive period for filing the murder charge had not
prescribed. There was no double jeopardy because the first case was dismissed before the
accused had pleaded to the charge. (Sec.7 of Rule 117).

Bar Exam 1993

Effect of Affidavit of Desistance in Rape Case
1. Ariel intimidated Rachel, a mental retarded, with a bolo into having sexual Intercourse with
him. Rachel's mother immediately filed a complaint, supported by her sworn statement, before
the City Prosecutor's Office. After the necessary preliminary investigation, an information was
signed by the prosecutor but did not contain the signature of Rachel nor of her mother. Citing
Art.344 of the RPC (prosecution of the crimes of rape), Ariel moves for the dismissal of the
case. Resolve with reasons.
2. After the prosecution had rested its case, Ariel presented a sworn affidavit of desistance
executed by Rachel and her mother stating that they are no longer interested in prosecuting the
case and that they have pardoned Ariel. What effect would this affidavit of desistance have on
the criminal and civil aspects of the case? Explain fully.

SUGGESTED ANSWER:
1. The case should not be dismissed.
2. The affidavit of desistance will only amount to the condonation of civil liability but not
criminal liability hence the case should still proceed.

Bar Exam 2000

Lolita was employed in a finance company. Because she could not account for the funds entrusted
to her, she was charged with estafa and ordered arrested. In order to secure her release from jail, her
parents executed a promissory note to pay the finance company the amount allegedly
misappropriated by their daughter. The finance company then executed an affidavit of desistance
which led to the withdrawal of the information against Lolita and her release from jail. The parents
failed to comply with their promissory note and the finance company sued them for specific
performance. Will the action prosper or not? (3%)

SUGGESTED ANSWER:
The action will prosper. The promissory note executed by Lolita's parents is valid and binding, the
consideration being the extinguishment of Lolita's civil liability and not the stifling of the criminal
prosecution.
ALTERNATIVE ANSWER:
The action will not prosper because the consideration for the promissory note was the non-
prosecution of the criminal case for estafa. This cannot be done anymore because the information
has already been filed in court and to do it is illegal. That the consideration for the promissory note
is the stifling of the criminal prosecution is evident from the execution by the finance company of
the affidavit of desistance immediately after the execution by Lolita's parents of the promissory
note. The consideration being illegal, the promissory note is invalid and may not be enforced by
court action.

Affidavit of Recantation

On the probative value of an affidavit of recantation, courts look with disfavor upon
recantations because they can easily be secured from witnesses, usually through
intimidation or for a monetary consideration.

Recanted testimony is exceedingly unreliable. There is always the probability that it

will be repudiated. (Molina vs. People. 259 SCRA 138)

Example Question 1998 Bar Examination

If the accused on the witness stand repeats his earlier uncounseled extrajudicial
confession implicating his co-accused in the crime charged, is that testimony
admissible in evidence against the latter? [3%]

Answer: Yes. The accused can testify by repeating his earlier uncounseled
extrajudicial confession, because he can be subjected to cross-examination.

People v. Nardo 353 SCRA 339 (2001)

Facts:
(A) was charged with rape by his 14-year old daughter. He was convicted by the Trial
Court and sentenced to death. (A) raised the defense that the victim desisted in
pursuing the case against her father by showing
two letters. However, these were not subscribed and sworn to by the victim.

Issue:
Should the letters be admitted in order to acquit the accused?

Held: No. A recantation of a testimony is exceedingly unreliable for there is always the
probability that such recantation may later on be itself repudiated. Courts look with
disfavor upon retractions because they can easily be obtained from witnesses through
intimidation or for monetary consideration. A retraction does not necessarily negate an
earlier declaration. Especially, recantations made after the conviction of the accused
deserve only scant consideration. Even if sworn to, the victims recantation could
hardly suffice to overturn the finding of guilt by the Trial Court which was based on her
own clear and convincing testimony given during a full-blown trial. An affidavit of
recantation, being usually taken ex parte, would be
considered inferior to the testimony given in open court.
Desistance
In the case of SPOUSES RODOLFO and SYLVIA CABICO vs. UDGE EVELYN L.
DIMACULANGAN-QUERIJERO, EN BANC, A.M. No. RTJ-02-1735, April 27, 2007, the
Supreme Court found a judge liable for GROSS IGNORANCE OF THE LAW and imposed
on her a fine of P21,000, with a stern warning that a repetition of the same or similar
act in the future shall merit a more severe sanction.

The Court held that the mere filing of affidavit of desistance or Salaysay ng Pag-
uurong ng Habla by the aggrieved party herself, does not ipso facto make the
criminal case dismissible. In rape case under Article 266-C, the law does not
include desistance of the offended party as a ground for extinction of criminal liability
whether total or partial.

Under Article 89 of the Revised Penal Code, criminal liability is totally extinguished by
the death of the convict, as to the personal penalties; and as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender occurs before final
judgment; service of the sentence; amnesty, which completely extinguishes the
penalty and all its effects; absolute pardon; prescription of the crime; prescription of
the penalty; the marriage of the offended woman, as provided in Article 344 of this
Code.

Under Article 94 of the Revised Penal Code, criminal liability is extinguished

partially by conditional pardon; commutation of the sentence; and for good conduct
allowances which the culprit may earn while he is serving his sentence.

May I digest the said case below, thus: X x x.

The complaint presented the issues of manifest partiality of respondent Judge in favor
of the accused; discourtesy in insulting complainant in open court; and gross
ignorance of the law in dismissing the criminal complaint against one of the accused
despite the fact that being at large, the court has not obtained jurisdiction over his
person.

x x x [T]he mere filing of affidavit of desistance or Salaysay ng Pag-uurong ng Habla

by the aggrieved party herself, does not ipso facto make the criminal case dismissible.
Article 266-C does not include desistance of the offended party as a ground for
extinction of criminal liability whether total or partial. x x x x

Respondent judge committed gross ignorance of the law when she issued the order
dated 12 October 2001, dismissing the criminal case with prejudice against both
accused after the latter had paid their individual civil liability. x x x

On the issue of respondents partiality towards the accused, the same was very much
apparent when respondent issued an order on 12 October 2001 dismissing the
complaint against all three accused, she stated therein that the civil liability has been
paid and that private complainant was no longer interested in the criminal aspect of
the case, despite of the fact that on the same date complainant and the victim refused
to sign the affidavit of desistance prepared for them. Due to respondents haste to
dismiss the criminal complaint, she even forgot the fact that the accused therein
Rayshawn de la Rosa has not yet been arraigned. It was only on 21 November 2001
that the two accused were arraigned.
X x x.

There is no question that on 12 October 2001, respondent Judge dismissed with

prejudice Criminal Case Nos. 10384-AF and 10383-AFagainst Dela Rosa and Azarcon
after they had paid their individual civil liability. This is in utter disregard and in gross
ignorance of the law, for payment of civil liability does not extinguish criminal liability.
Article 89 of the Revised Penal Code provides:

How criminal liability is totally extinguished. Criminal liability is totally

extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary

penalties, liability therefor is extinguished only when the death of the offender occurs
before final judgment;
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Article 344 of this Code.

On the other hand, Article 94 of the Revised Penal Code provides:

Partial extinction of criminal liability. Criminal liability is extinguished partially:

1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit may earn while he is serving his
sentence.

The victims affidavit of desistance could not have justified the dismissal of the
criminal cases.
Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, has
reclassified rape as a crime against persons.
Hence, any public prosecutor, even without the complaint of the victim or her
parents, or guardian, can prosecute the offender.

Even if we consider the victims affidavit of desistance, still it would not justify
the dismissal.
By itself, an affidavit of desistance or pardon is not a ground for the dismissal of
an action, once the action has been instituted in court. Here, the victim made the
so-called pardon of the accused after the institution of the action. Hence, the victim
had already lost the right or absolute privilege to decide whether the rape charge
should proceed because the case had already reached and must therefore continue to
be heard by the trial court.

When a law or a rule is basic, a judge owes it to his office to simply apply the law.
Anything less is gross ignorance of the law. As an advocate of justice and a visible
representation of the law, a judge is expected to keep abreast with and be proficient in
the interpretation of our laws. A judge should be acquainted with legal norms and
precepts as well as with statutes and procedural rules. Having accepted the exalted
position of a judge, respondent Judge owes the public and the court she sits in
proficiency in the law. Respondent Judge failed to live up to these standards.

Respondent Judge has also clearly violated Rule 2.01 of Canon 2 of the Code of Judicial
Conduct which provides: A judge should so behave at all times as to promote public
confidence in the integrity and impartiality of the judiciary.

Respondent Judge showed partiality in favor of the accused when she issued her 12
October 2001 order dismissing the subject criminal case. Respondent Judge stated in
her order that she dismissed the criminal case because Dela Rosa and Azarcon had
already paid their civil liability and private complainant was no longer interested in
the criminal aspect of the case. However, the record reveals that on the same day
that the dismissal order was issued, complainant Sylvia Cabico and the victim had also
refused to sign the affidavit of desistance that was prepared for them.

Also, respondent Judge dismissed with prejudice the criminal case against Dela Rosa
even when he had not been arraigned. By her own admission, respondent Judge made
an oversight that accused Dela Rosa was already under the jurisdiction of the court.
Thus, in her order of 21 November 2001, respondent Judge ordered the issuance of a
warrant of arrest against Dela Rosa.

Respondent Judges actuations in the premises only betray her gross ignorance of
procedural rules. Jurisdiction over the person of the accused is acquired by arrest.

Rule 3.01, Canon 3 of the Code of Judicial Conduct mandates that a judge shall be
faithful to the law and maintain professional competence. Unfamiliarity with the Rules
of Court is a sign of incompetence. When a judge displays an utter lack of familiarity
with the rules, such incompetence erodes the publics confidence in the competence
of our courts. Basic rules of procedure must be at the palm of a judges hands.

When the law is so elementary, not to be aware of it constitutes gross ignorance of the
law. When the inefficiency springs from a failure to consider so basic and elemental a
rule, a law, or a principle in the discharge of his duties, the judge is either too
incompetent and undeserving of the position and title he holds or is too vicious that
the oversight or omission was deliberately done in bad faith and in grave abuse of
judicial authority.

We cannot countenance respondent Judges discourtesy in insulting Sylvia Cabico

during the hearing on 12 October 2001. Respondent Judges statement was
unbecoming a judge. Her behavior towards Sylvia Cabico betrayed her impatience in
the conduct of the hearing.

A display of petulance and impatience in the conduct of a trial is a norm of behavior

incompatible with the needful attitude and sobriety of a good judge. Respondent
Judges actuations violated Rule 3.04 of Canon 3 of the Code of Judicial Conduct, thus:

Rule 3.04. -- A judge should be patient, attentive, and courteous to lawyers, especially
the inexperienced, to litigants, witnesses, and others appearing before the court. A
judge should avoid unconsciously falling into the attitude of mind that the litigants are
made for the courts, instead of the courts for the litigants.

Clearly, respondent Judge has failed to observe courtesy and civility to the litigants
who appeared before her.
Respondent Judges reliance on Section 2(a), Rule 18 of the Rules of Court in disposing
of the criminal case is misplaced. While the effort of respondent Judge to hasten the
resolution of the cases before her is commendable, that task, however, should not be
done in utter disregard of the rudiments of the law and procedure. The duty to dispose
of the court business promptly and to decide cases within the reglementary periods
should be consistent with a faithful compliance with the prescribed set of procedures.
The avowed purpose of acting on cases as early as possible does not justify even the
slightest abuse of judicial authority and discretion or excuse due observance of the
basic elements of the rule of law.

A judge must render justice without resorting to uncalled for shortcuts. Respondent
Judge failed to live up to the standards required of her high position.
Under Rule 140, Section 8(9) of the Rules of Court, as amended by A.M. No. 01-8-10-
SC, gross ignorance of the law or procedure is classified as a serious charge and
penalized with dismissal, suspension, or a fine ranging from above P20,000 to
P40,000.

Under the circumstances prevailing in the present case, we find that a fine of P21,000
is in order. X x x.
Recantation

X rapes V. X is indicted. Trial ensues. The trial court convicts X. He appeals to the
appellate court. While the appeal is pending, V receives cash from X. She also applies
for a US visa. It is granted by the US Embassy. Pending appeal and two years after
judgment was rendered, V executes an affidavit of recantation in favor of X. Then, she
flies to USA.

This is the story of convicted rapist Smith, a US marine, and Nicole, a Filipina, which
has been hugging the headlines in the Philippine media for the past days.

V has not received any protection from the Philippine Government from the very
beginning because of political pressures from the US Government to exonerate Smith
and to preserve the Visiting Forces Agreement (VFA), which is the next best things to a
military base. (The Philippine Constitution prohibits foreign military bases in the
country).

What probative value would you give to the recantation of V?

May I cite below some decisions of the Philippine Supreme Court on the issue
of recantation, for purposes of legal research of the visitors of this blog.

In the case of People v. Alicante, 332 SCRA 440, and People v. Junio, 237 SCRA
826, the Philippine Supreme Court reiterated the long-held doctrine in Philippine
jurisprudence that AN AFTERTHOUGHT had no probative value. It would make a
solemn trial a mockery and place the investigation at the mercy of unscrupulous
witnesses. A recantation can be easily secured from poor and ignorant witnesses,
usually for money, and is exceedingly unreliable, the Court stated.

In the case of PEOPLE vs. FONTANILLA, GR 147662-63 EN BANC, August 15, 2003, the
Philippine Supreme Court held that affidavit of recantation cannot qualify as newly
discovered evidence to justify a new trial; that affidavits of retraction of testimonies
are generally looked with disfavor because there is always the probability that they
may later be repudiated; that . Thus: X x x.

As for the trial courts denial of appellants motion for new trial arising from
Methels affidavit of recantation: Said affidavit cannot qualify as newly discovered
evidence to justify a new trial, the following requisites for which, and these must
concur, are not present:
(a) the evidence was discovered after the trial;
(b) such evidence could not have been discovered and produced at the trial even with
the exercise of reasonable diligence; and
(c) such evidence is material, not merely cumulative, corroborative, or impeaching,
and is of such weight that, if admitted, would probably change the judgment.

Besides, affidavits of retraction of testimonies are generally looked with disfavor

because there is always the probability that they may later be repudiated.

x x x The unreliable character of this document is shown by the fact that it is quite
incredible that after going through the process of having accused-appellant arrested
by the police, positively identifying him as the person who raped her, enduring the
humiliation of a physical examination of her private parts, and then repeating her
accusations in open court by recounting her anguish, Maryjane would suddenly turn
around and declare that after a careful deliberation over the case, [she] find[s] that
the same does not merit or warrant criminal prosecution.
Thus, we have declared that at most the retraction is an afterthought which should not
be given probative value. It would be a dangerous rule to reject the testimony taken
before the court of justice simply because the witness who has given it later on
changed his mind for one reason or another. Such a rule will make a solemn trial a
mockery and place the investigation at the mercy of unscrupulous witnesses.
(Underscoring supplied) X x x.

In the case of PEOPLE vs. AYUMAN, GR 133436 EN BANC, ____, 2004, the Court
held that:

that mere retraction by a prosecution witness does not necessarily vitiate the
original testimony if credible;
that the Court looks with disfavor upon retractions of testimonies previously given
in court;
that the rationale for the rule is that affidavits of retraction can easily be secured
from witnesses, usually through intimidation or for a monetary consideration; and
that recanted testimony is exceedingly unreliable.

Thus: Xxx

For his part, the Solicitor General, in the appellees brief, maintains that Ermitas
affidavit of recantation is an afterthought and exceedingly unreliable. Moreover, the
circumstantial evidence relied upon by the trial court sustains the conviction of
appellant of the crime charged. X x x.

But appellant discredits Ermitas sworn statement because she retracted. It bears
emphasis that mere retraction by a prosecution witness does not necessarily vitiate
the original testimony if credible, as in this case. We look with disfavor upon
retractions of testimonies previously given in court. The rationale for the rule is
obvious: Affidavits of retraction can easily be secured from witnesses, usually through
intimidation or for a monetary consideration. Recanted testimony is exceedingly
unreliable. There is always the probability that it will later be repudiated. Thus, the trial
court correctly disregarded Ermitas affidavit of desistance. Obviously, she was
influenced by appellant to execute it. Moreover, if it were true that an unidentified
person killed their son, why did appellant fail to report the matter to the proper
authorities? There can be no other conclusion, therefore, than that Ermitas affidavit of
retraction is an afterthought, intended to exculpate appellant from criminal liability. X x
x.

In the case of PEOPLE vs. OCTAVIO MENDOZA, G.R. No. 109279-80, January
18, 1999, it was held that mere retraction by a prosecution witness does not
necessarily vitiate his original testimony; and that a testimony solemnly given in court
should not be lightly set aside and that before this can be done, both the previous
testimony and the subsequent one be carefully compared, the circumstances under
which each was given be carefully scrutinized, the reasons or motives for the change
carefully scrutinized, in other words, all the expedients devised by man to determine
the credibility of witnesses should be utilized to determine which of the contradictory
testimonies represents the truth. Thus:X x x.

The contention is without merit. Mere retraction by a prosecution witness does not
necessarily vitiate his original testimony. As this Court held in People vs. Ubina: 20 [97
Phil. 515, 525-526 (1955). Reiterated in People vs. Panida, G.R. Nos. 127125 & 138952,
July 6, 1999.]

" x x x Merely because a witness says that what he had declared is false and that what
he now says is true, is not sufficient ground for concluding that the previous testimony
is false. No such reasoning has ever crystallized into a rule of credibility. The rule is
that a witness may be impeached by a previous contradictory statement [now Rule
132, section 11]; not that a previous statement is presumed to be false merely
because a witness now says that the same is not true. The jurisprudence of this Court
has always been otherwise, i.e., that contradictory testimony given subsequently does
not necessarily discredit the previous testimony if the contradictions are satisfactorily
explained. (U.S. vs. Magtibay, 17 Phil. 417; U.S. vs. Briones, 28 Phil. 362; U.S. vs.
Dasiip, 26 Phil. 503; U.S. vs. Lazaro, 34 Phil. 871). We have also held that if a previous
confession of an accused were to be rejected simply because the latter subsequently
makes another confession, all that an accused would do to acquit himself would be to
make another confession out of harmony with the previous one (U.S. vs. Acasio, 37
Phil. 70). Similarly, it would be a dangerous rule for courts to reject testimonies
solemnly taken before courts of justice simply because the witnesses who had given
them later on change their mind[s] for one reason or another, for such rule would
make solemn trials a mockery and place the investigation of truth at the mercy of
unscrupulous, witnesses. x x x

The rule should be that a testimony solemnly given in court should not be lightly set
aside and that before this can be done, both the previous testimony and the
subsequent one be carefully compared, the circumstances under which each given
carefully scrutinized, the reasons or motives for the change carefully scrutinized-in
other words, all the expedients devised by man to determine the credibility of
witnesses should be utilized to determine which of the contradictory testimonies
represents the truth."
X x x.