DNA

The Evolution of DNA as Evidence in the Philippines

By: Atty. Jess Zachael B. Espejo, LL.M.1

INTRODUCTION

We all know King Solomon, the biblical king who has been
regarded as the epitome of wisdom. The most widely known story of his
wisdom is about two women who each lay claim to being the mother of
the same child.2 After hearing the womens arguments, Solomon called
for a sword to be brought before him and commanded the child to be cut
in half and shared between the two. After hearing this terrible verdict,
one woman promptly renounces her claim, evincing that she would
rather give up the child than see him killed. Conversely, the other woman
consented to the strange verdict handed down by the king. Solomon
declares the woman who showed compassion to be the true mother
entitled to the child, as a true, loving mother would rather surrender her
baby to another than see him hurt.

Whether this biblical story is interpreted as a historical scene or a

mere symbolic story, one thing remains clear: in settling disputes, justice
ought to be dispensed with wisdom and fairness.

Here and now, in the 21 st century, the factual backdrops of cases

have been reversed from that story of the Judgment of Solomon. Instead
of putative mothers disputing the right to a child, 3 a lot of cases now deal
with putative fathers denying paternity to avoid parental responsibility.
Jurisprudence is replete with paternity suits. This type of suits now
seems to be a staple in Family Courts throughout the country.

Here and now, Philippine society is likewise beset by crimes

replicating those committed by Cain against Abel 4 and by Shechem
against Dinah.5 Murders and intentional homicides occur in the
Philippines at a rate of 6.44 per 100,000 people. 6 Also, based on
statistics compiled by the Philippine Commission on Women from 2004

1
Atty. Jess Zachael B. Espejo is the Dean of the College of Legal Education of the University of Mindanao.
His teaching career has spanned 14 years, which saw him teach subjects such as Sales, Credit Transactions,
Torts and Damages, Public International Law, Civil Procedure, Evidence, Civil Law Review and Remedial
Law Review. He is also a pre-bar reviewer at Ateneo Pre-Bar Review Center (Civil Law) and Magnificus
Juris (Bar Techniques). Some of his works have been published in the Mindanao Law Journal and the
journal of the San Beda College Graduate School of Law, where he obtained his Masters Degree in Law
in July 2015.
2
1 Kings 3:16-28.
3
See SOMBONG vs. COURT OF APPEALS, G.R. No. 111876, January 31, 1996, for an example of two
women claiming to be the legitimate parent of the same child.
4
Genesis 4:8.
5
Genesis 34:1-2.
6
As per 2008 data gathered in the United Nations Survey of Crime Trends and Operations of Criminal
Justice Systems.
to 2013, there were 9,452 reported cases of rape. 7 Many of these cases
remain unsolved.

Ironically, rape and paternity suits have a hybrid offspring in the

form of criminal paternity issues, where those accused of rape attempt to
escape liability by positing that, if a child allegedly born out of the rape is
not that of the accused, then he must be acquitted.

Here and now, Solomonic wisdom is scarce, especially in tribunals

where it is most needed. The Supreme Court itself, the highest court in
the land, has adverted to its fallibility.8 Indeed, the Supreme Court is not
final because it is infallible; it is infallible because it is final.9 The
Supreme Court likewise admits to the judiciarys lack of expertise in
certain fields10 that may have implications in its ability to produce a fair
verdict and must, therefore, defer to the knowledge and expertise of
others in determining matters of fact.11

Given the foregoing premises, with emphasis on crimes and

paternity suits, the Supreme Court, on October 2, 2007, issued its own
bit of Solomonic wisdom in the form of A.M. No. 06-11-5-SC or the Rule
on DNA Evidence. The issuance, which took effect on October 15, 2007,
was an explicit recognition that DNA testing can be used to obtain
objective proof in identifying perpetrators of crimes and as a reliable and
effective method of settling paternity disputes. The Rule is an express
recognition that the use of science and scientifically quantifiable data
plays a role in the judiciarys ability to dispense justice. A verdict can
now be had, not by splitting a baby in half but by means akin to
splitting an atom or, more appropriately, by splitting and analyzing
genetic material.

DEFINITION AND NATURE OF DNA EVIDENCE

Under the Rule, DNA means deoxyribonucleic acid, which is the

chain of molecules found in every nucleated cell of the body. The totality
of an individuals DNA is unique for the individual, except identical
twins.12 DNA evidence, on the other hand, constitutes the totality of the
DNA profiles, results and other genetic information directly generated
from DNA testing of biological samples. 13 A biological sample is any
organic material originating from a persons body, even if found in
inanimate objects, that is susceptible to DNA testing. This includes
blood, saliva and other body fluids, tissues, hairs and bones.14

7
http://www.pcw.gov.ph/statistics/201405/statistics-violence-against-filipino-women (last retrieved on
January 7, 2017).
8
Dissenting Opinion of Chief Justice Maria Lourdes Sereno in League of Cities vs. COMELEC, June 28,
2011.
9
Concurring Opinion of Justice Robert Jackson, Brown v. Allen, 344 U.S. 443 [1953].
10
DELA LLANA vs. BIONG, G.R. No. 182356, December 4, 2013.
11
CRUZ vs. COURT OF APPEALS, G.R. No. 122445 November 18, 1997.
12
A.M. No. 06-11-5-SC, Section 3(b).
13
Ibid., Section 3(c).
14
Ibid., Section 3(a).
 DNA evidence, under the Rules of Court, is classified as object
evidence as it is addressed to the senses of the court. The consequences
of this characterization are as follows:

1. DNA evidence is considered evidence of the highest order and

therefore prevails over documentary and testimonial evidence to
the contrary. The Supreme Court, in PEOPLE versus LAVAPIE, ET
AL.,15 declared that if xxx the physical evidence on record runs
counter to the testimonial evidence of the prosecution witnesses,
conclusions as to physical evidence should prevail. It bears
reiteration that physical evidence is that mute but eloquent
manifestations of truth which rate high in our hierarchy of
trustworthy evidence. In the light of the physical evidence obtaining
in this case, contrary to oral assertions cannot normally prevail.
Greater credence is given to physical evidence as evidence of the
highest order because it speaks more eloquently than a hundred
witnesses.

2. Being object evidence, it is not covered by the constitutional

guarantee against self-incrimination.16 Where the evidence sought
to be excluded is not an incriminating statement but is object
evidence, the right against self-incrimination guaranteed under our
fundamental law finds no application.17

However, DNA evidence can only be appreciated through the aid of

expert testimony. The gathering, processing and analysis of DNA
evidence, as well as any testimony thereon, requires special knowledge,
skill, experience or training which only a witness expert on the field
possesses.18 In DELA LLANA versus BIONG,19 even the Supreme Court
itself admitted that it is not an expert in the field of medicine. In
addition, the following observations seem appropriate:

1. Expert testimony is, for all intents and purposes, mere opinion
evidence. The presentation of DNA evidence is, therefore, subject to
the relevant provisions of the Rules of Court.20

2. While object evidence does not lie, the expert who processes and
testifies about it may. Object evidence by itself is reliable but the
manner of collecting, processing and preserving it may be prone to
error.

15
G.R. No. 130209, March 14, 2001.
16
Section 17, Article III of the 1987 Constitution.
17
PEOPLE vs. MALIMIT, G.R. No. 109775, November 14, 1996.
18
Section 49, Rule 130 of the Rules of Court.
19
Ibid., note 10.
20
Section 2, A.M. No. 06-11-5-SC or the Rule on DNA Evidence.
 3. The matter of whether to require expert evidence is entirely within
the discretion of the courts. In PEREZ versus PEOPLE, 21 the
Supreme Court declared that Section 49, Rule 130 of the Revised
Rules of Court states that the opinion of a witness on a matter
requiring special knowledge, skill, experience or training, which he is
shown to possess, may be received in evidence. The use of the word
may signifies that the use of opinion of an expert witness is
permissive and not mandatory on the part of the courts.

4. Corollary to the immediately preceding observation, there are

instances where the opinion of an expert appears to be
indispensable in the resolution of an issue or where expert
testimony seems to be required by the nature of the case itself. To
cite examples:

a. What immediately comes to mind are Article 36 petitions for

declaration of nullity of marriage and REPUBLIC versus CA and
MOLINA.22 For some time, many practitioners were under the
impression that no petition for declaration of nullity on the
ground of psychological incapacity could succeed without the
expert opinion of qualified psychiatrists and clinical
psychologists. This impression was mainly due to the fact that
the basic requirements of gravity, juridical antecedence and
incurability are best proven by medical experts. Molina itself
states that such incapacity must also be shown to be medically
or clinically permanent or incurable. However, these
requirements have now been clarified to mean that expert
testimony is not indispensable.23

b. Expert medical opinion is necessary in medical malpractice

cases. In one case,24 the Supreme Court had the previous
occasion to rule that (i)nasmuch as the causes of the injuries
involved in malpractice actions are determinable only in the light
of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to
causation. In the same case, the Supreme Court further
declared that (f)or whether a physician or surgeon has
exercised the requisite degree of skill and care in the treatment of
his patient is, in the generality of cases, a matter of expert
opinion. The deference of courts to the expert opinion of qualified
physicians stems from its realization that the latter possess
unusual technical skills which laymen in most instances are
incapable of intelligently evaluating. Expert testimony should
21
G.R. No. 187246, July 20, 2011.
22
335 Phil. 664 (1997).
23
Section 2, Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages; See also BARCELONA vs. COURT OF APPEALS, G.R. No. 130087, September 24, 2003,
412SCRA 41 and TORING vs. TORING, G.R. No. 165321, August 3, 2010.
24
CRUZ vs. COURT OF APPEALS, G.R. No. 122445 November 18, 1997.
 have been offered to prove that the circumstances cited by the
courts below are constitutive of conduct falling below the
standard of care employed by other physicians in good standing
when performing the same operation.

c. This paper ventures to opine that, for reasons already intimated

above and from the very scientific nature of DNA as evidence,
cases involving DNA evidence appear to be another of those
cases which absolutely require expert testimony. The reasons
for this opinion will be discussed elsewhere in this paper.25

d. Whether to rely on the expert testimony already given (and

what degree of reliance, if at all, will be accorded to such expert
testimony on DNA evidence for that matter) is wholly within the
courts discretion as well. As the Supreme Court itself has
stated, courts are not ordinarily bound by expert testimonies.
They may place whatever weight they may choose upon such
testimonies in accordance with the facts of the case. The
relative weight and sufficiency of expert testimony is peculiarly
within the province of the trial court to decide, considering the
ability and character of the witness, his actions upon the
witness stand, the weight and process of the reasoning by
which he has supported his opinion, his possible bias in favor
of the side for whom he testifies, the fact that he is a paid
witness, the relative opportunities for study and observation of
the matters about which he testifies, and any other matters
which deserve to illuminate his statements. The opinion of the
expert may not be arbitrarily rejected; it is to be considered by
the court in view of all the facts and circumstances in the case
and when common knowledge utterly fails, the expert opinion
may be given controlling effect. The problem of the credibility of
the expert witness and the evaluation of his testimony is left to
the discretion of the trial court whose ruling thereupon is not
reviewable in the absence of abuse of discretion.26

Finally, DNA evidence is considered forensic evidence as it is

obtained by scientific means.27 In the words of the Supreme Court, DNA
evidence is one of those scientific forms of identification evidence similar
to fingerprinting.28

USES OF DNA EVIDENCE AND INTERNATIONAL FIRSTS

No discussion on forensic evidence would be complete without

mentioning Dr. Edmund Locard, a French physician, lawyer and

25
See discussions on the Frye and Daubert tests.
26
PEOPLE vs. BASITE, 459 Phil. 197, 206-207 (2003), citing PEOPLE vs. BAID, G.R. No. 129667, July
31, 2000, 336 SCRA 656, 675.
27
Internet reference @ http://i-uv.com/wp-content/uploads/2014/05/BlacksLaw4th.pdf, last retrieved on
January 5, 2017.
28
PEOPLE vs. TEEHANKEE, JR., G.R. Nos. 111206-08 October 6, 1995.
criminologist who lived between 1877 and 1966. He is considered as the
pioneer in forensic science. Known as the Sherlock Holmes of France,
He formulated the basic principle of forensic science that "every contact
leaves a trace". This is now known to us as Locard's exchange principle.
A virtual acolyte of Locard, Paul Leland Kirk, who was an American
chemist and forensic scientist, explained the exchange principle as
follows:

Wherever he steps, wherever he touches, whatever he leaves,

even without consciousness, will serve as a silent witness against
him his fingerprints or his footprints, but his hair, the fibers from his
clothes, the glass he breaks, the tool mark he leaves, the paint he
scratches, the blood or semen he deposits or collects. All of these
and more bear mute witness against him. This is evidence that does
not forget. It is not confused by the excitement of the moment. It is
not absent because human witnesses are. It is factual evidence.
Physical evidence cannot be wrong, it cannot perjure itself, it cannot
be wholly absent. Only human failure to find it, study and
understand it, can diminish its value.29

It is in this light that the use of DNA as evidence should be

understood. DNA as evidence is reliable by itself. It is the human element
(the man or woman who collects, processes, preserves, and analyzes DNA
evidence) that is prone to error. It must be stressed, however, that
without those brave men and women who ventured into the unknown
and who dared to look under the skin, literally and figuratively, the
forensic investigation techniques that we know today would not have
been possible.

Uses of DNA Evidence

In this portion of the paper, identified are the several uses of DNA
Evidence as they were prominently used in different areas of the world.
The uses of DNA Evidence are:

1. Identification;
2. Determination of parentage or pedigree; and
3. Criminal investigation and prosecution.

Identification

DNA evidence can be useful in identifying corpses in mass graves

or in airplane crashes or decomposed murder victims, for example. In
such situations, biological samples may be taken from the body of the
deceased and compared with previously existing samples or those of the
victims surviving relatives.

29
PAUL L. KIRK, Crime Investigation: Physical Evidence And The Police Laboratory (1953).
 A prominent historical example of the use of DNA for identification
was the case of Josef Mengele, a Nazi Officer during World War 2 who
became known as the Angel of Death. Mengele was a member of a team
of doctors responsible for the selection of victims to be killed in gas
chambers and for performing deadly human experiments on prisoners. It
is ironic that Mengele was also obsessed with biology and genetics during
his tenure as a Nazi doctor. His experiments included sewing twin boy
toddlers together so that he could investigate how Siamese twins
behaved. In another case involving twins, one was infected with
tuberculosis, then, on his orders, both were killed so he could observe the
different pathology.

So, when Germany fell, Mengele fled. Due to the severity of his
crimes, it was imperative that he be captured and brought to justice.
This sparked almost a half-century manhunt for Mengele that involved
the governments of several countries. Decades into the manhunt for
Mengele, he successfully eluded capture and there were still alleged
sightings of him as late as 1985. In 1969, a man named Wolfgang
Gerhard drowned in Brazil and was eventually buried there. There were
tips alluding to the possibility that Gerhard was actually Mengele in
disguise. This led to the exhumation of Gerhards body. Biological
samples were taken. Blood specimens from Mengele's wife and son were
used to reconstitute his DNA pattern. Finally, in 1992, the remains of
Gerhard were confirmed to be those of Mengele, thus ending the
manhunt and bringing closure to the story of the so-called Angel of
Death. The very science that he so craved, albeit in macabre ways, led to
the discovery of his corpse.

Determination of Parentage or Pedigree

DNA can be used to determine paternity and/or maternity. It may

also be used to determine genealogy. No case in history can best
illustrate this use of DNA than the story of the Russian Imperial
Romanov Family.

After the Bolshevik Revolution in Russia, deposed Tsar Nicolas II,

his wife and five children were executed by the Bolshevik Troops upon
orders of Lenin on July 17, 1918. They were all buried in unmarked
graves for fear of desecration. Rumors persisted, however, that the
youngest daughter, Anastasia, had survived and escaped Russia. It
bears to stress that survival of a member of the royal family could have
been used as a rallying point by anti-Bolshevik groups who wish to
depose the new communist regime.

Then, in 1920, a woman named Anna Anderson surfaced in

Germany claiming to be the lost Romanov heiress, Anastasia. Her claim
could neither be confirmed nor debunked. In 1991, the bones of the
Romanov family were eventually discovered and verified to really belong
to them through DNA matching with a distant relative, Prince Philip, the
husband of Queen Elizabeth II. Of course, by that time, Anna Anderson
was already dead. But, all was not lost.

A sample of Anderson's tissue, part of her intestine removed during

her operation in 1979, had been stored at a hospital in Charlottesville,
Virginia. Anderson's mitochondrial DNA was extracted from the sample
and compared with that taken from the bones of the Romanov family.
Matching was also made with the DNA of Prince Philip. As no match was
made, the use of forensic science was able to confirm that Anderson was
an impostor.

Criminal Investigation and Prosecution

DNA can be effectively used for the purpose of inclusion or

elimination of suspects by the police authorities in the process of
building a case and zeroing in on particular suspects. A positive DNA
match can be considered probable cause for the issuance of a warrant of
arrest. DNA, of course, can be used as evidence in criminal cases either
to convict perpetrators of crime or to exonerate innocent individuals.
DNA evidence, therefore, can be inculpatory or exculpatory.

A good historical example took place in the 1980s in Leicestershire,

England. Between 1983 and 1986, two 15-year-old girls were separately
raped and murdered. The modus operandi of the crimes was similar.
Semen samples obtained from the bodies revealed that there was only
one assailant. The main suspect then was Richard Buckland, a 17-year-
old boy with learning difficulties, who revealed knowledge of one of the
girls body, and admitted the crime under questioning. He, however,
denied the first murder. Having no concrete lead on the crimes, police
investigators turned to Sir Alec Jeffreys, a British geneticist widely
credited for the development of modern-day DNA profiling techniques.

Jeffreys compared semen samples from both murders against a

blood sample from Buckland which conclusively proved that both girls
were killed by the same man, but not Buckland. Buckland became the
first suspect in the world to be exonerated by the use of DNA evidence.

The police then undertook an investigation in which 5,000 local

men were asked to volunteer blood or saliva samples. This took six
months, and yet no matches were found. Then, in 1987, the police
discovered that one man, Colin Pitchfork, had paid his co-worker to give
a DNA sample while posing as him. After collecting a DNA sample from
Pitchfork, the authorities were able to make a positive match with the
semen samples. Pitchfork was sentenced to life imprisonment for rape
and murder. He thus became the first person convicted based on DNA
evidence and the first one to be caught as a result of mass DNA
screening.
 Thus, as early as 1984, the use of DNA as evidence in cases had
already gained international acceptance, if we are to take the Pitchfork
case as an example.

INITIAL TREATMENTS OF DNA AS EVIDENCE

IN THE PHILIPPINES

In Philippine jurisprudence, the first ever mention of DNA evidence

was in the 1995 case of PEOPLE versus TEEHANKEE, JR.,30 where the
appellant was convicted of murder on the testimony of three
eyewitnesses, the Supreme Court stated that while eyewitness
identification is significant, it is not as accurate and authoritative as the
scientific forms of identification evidence such as the fingerprint or the
DNA testing. From this, we gather that the Supreme Court was already
aware then of DNA testing as a viable forensic investigation technique.

However, in PE LIM versus COURT OF APPEALS,31 the Supreme

Court was hesitant to give recognition to DNA testing as a means to
provide evidence in the resolution of a paternity case. Pe Lim instead held
against a putative father on the basis of love letters which were taken as
admissions against him. In seeing no need for the conduct of DNA
testing, the Supreme Court ruled that:

DNA, being a relatively new science, it has not as yet been

accorded official recognition by our courts. Paternity will still have to
be resolved by such conventional evidence as the relevant
incriminating acts, verbal and written, by the putative father.

The same hesitance can be seen in the succeeding case of ANDAL

versus PEOPLE.32 After being convicted of rape and sentenced to the
death penalty, the accused, in a petition for a writ of habeas corpus,
asked for DNA testing in an attempt to secure grounds to reverse their
conviction. If the testing proved negative, they proposed that they should
be acquitted. The Supreme Court ruled that:

The issue of DNA tests as a more accurate and authoritative

means of identification than eye-witness identification need not be
belabored. The accused were all properly and duly identified by the
prosecutions principal witness. XXX DNA testing proposed by
petitioners to have an objective and scientific basis of identification
of semen samples to compare with those taken from the vagina of
the victim are thus unnecessary or are forgotten evidence too late to
consider now.

30
Ibid., note 28.
31
G.R. No. 112229, March 18, 1997.
32
G.R. No. 138268, May 26, 1999.
 In PEOPLE versus PENASO, 33 the Supreme Court was once again
asked to order DNA testing in another attempt to reverse conviction. In
this case, however, the criminal complaint alleged that the rape caused
the private complainant to have an unwanted pregnancy of an unwanted
child. The private complainant later gave birth to a baby boy exactly
eight (8) months after the rape allegedly took place. To the authors mind,
because it was specifically alleged that it was the very devilish act of
the accused that caused the victims pregnancy, if DNA testing proves
that the accused is not the father of the child, there would at least be
some reasonable doubt and DNA testing would therefore be proper. Had
there been no allegation that the rape caused the private complainant to
be pregnant, DNA testing would of course be irrelevant. The fact also that
the child was born only eight (8) months after the rape even elicits some
suspicion that the child was not fathered by the accused. There was, in
fact, no mention in the case that the child was born premature or before
term. The Supreme Court denied the request for DNA testing by quoting
Andal and by ruling that:

(T)he question of who sired the victims child has no bearing

here, for in rape cases, the identity of the father of the victims child
is not an issue, pregnancy not being an element of the crime.

PEOPLE versus FAUSTINO,34 a case for robbery with homicide

which was decided only a few months after Penaso, on the other hand,
resulted in a reversal of conviction. While the eventual acquittal did not
rely on DNA evidence, the Supreme Court doubted the eyewitness
identification of the accused and revisited Teehankee. The Court again
declared that eyewitness identification is not as accurate and
authoritative as the scientific forms of identification evidence like by
fingerprint or by DNA testing.

Then, in TIJING versus COURT OF APPEALS, 35 the Supreme Court

opened the possibility of admitting DNA as evidence of parentage. The
Court issued a writ of habeas corpus against respondent who abducted
petitioners youngest son. In this case, while only testimonial and
documentary evidence and physical resemblance were used to establish
parentage, and not DNA evidence, the Supreme Court however noted
that:

Parentage will still be resolved using conventional methods

unless we adopt the modern and scientific ways available.
Fortunately, we have now the facility and expertise in using DNA
tests for identification and parentage testing. The University of the
Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing
using short tandem repeat (STR) analysis. The analysis is based on

33
G.R. No. 121980, February 23, 2000.
34
G.R. No. 129220, September 6, 2000.
35
G.R. No. 125901, March 8, 2001.
 the fact that the DNA of a child/person has two (2) copies, one copy
from the mother and the other from the father. The DNA from the
mother, the alleged father and child are analyzed to establish
parentage.

Of course, being a novel scientific technique, the use of DNA

test as evidence is still open to challenge. Eventually, as the
appropriate case comes, courts should not hesitate to rule on the
admissibility of DNA evidence. For it was said, that courts should
apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress.
Though it is not necessary in this case to resort to DNA testing, in
the future it would be useful to all concerned in the prompt resolution
of parentage and identity issues.

As can be culled from the immediately preceding quotation, the

Supreme Court directed subordinate courts to go with the times, so to
speak, by not hesitating to rule on the admissibility of DNA as evidence.

It was only in 2002 when the Supreme Court first used DNA
evidence in convicting the accused beyond reasonable doubt. In PEOPLE
versus VALLEJO,36 the accused was charged with raping and murdering
a 9-year-old child. The victims DNA samples from the bloodstained
clothes of the accused were admitted in evidence. The DNA profile from
vaginal swabs taken from the rape victim matched the accuseds DNA
profile. The high Court affirmed the accuseds conviction of rape with
homicide and sentenced him to death. The Supreme Court held:

DNA is an organic substance found in a persons cells which

contains his or her genetic code. Except for identical twins, each
persons DNA profile is distinct and unique.

When a crime is committed, material is collected from the

scene of the crime or from the victims body for the suspects DNA.
This is the evidence sample. The evidence sample is then matched
with the reference sample taken from the suspect and the victim.

The purpose of DNA testing is to ascertain whether an

association exists between the evidence sample and the reference
sample. The samples collected are subjected to various chemical
processes to establish their profile.

The Supreme Court elucidated further and said that DNA Testing
may yield any of the following possible results:

1. Exclusion, which means that the samples are different and

therefore must have originated from different sources. This

36
G.R. No. 144656, May 9, 2002.
 conclusion is absolute and requires no further analysis or
discussion;

2. Inconclusive, which means that it is not possible to be sure, based

on the results of the test, whether the samples have similar DNA
types. This might occur for a variety of reasons including
degradation, contamination, or failure of some aspect of the
protocol. Various parts of the analysis might then be repeated with
the same or a different sample, to obtain a more conclusive result;
and

3. Inclusion, which means that the samples are similar, and could
have originated from the same source. In such a case, the samples
are found to be similar, the analyst proceeds to determine the
statistical significance of the similarity.

The Supreme Court then laid down guidelines which would later
find their way into what would eventually be the Rule on DNA Evidence,
as follows:

In assessing the probative value of DNA evidence, therefore,

courts should consider, among others things, the following data: how
the samples were collected, how they were handled, the possibility
of contamination of the samples, the procedure followed in analyzing
the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst
who conducted the tests.

Another important case insofar as DNA evidence is concerned, at

least in the authors mind, is one where a DNA test was not even
conducted. It can be considered a landmark case because, for the first
time, the Supreme Court took judicial notice of the importance of DNA
Typing. IN RE: Petition to take the 1999 Bar Exams,37 a bar candidate by
the name of Julius Cesar passed the 1999 Bar Examinations but was not
allowed to take the lawyers oath. A Letter-Complaint was filed before the
Office of the Bar Confidant by a certain Tuesday Castro charging him
with Immorality and Grave Misconduct. Castro alleged that she and
petitioner were former lovers that she bore him a son named Michael
Angelo Castro on May 5, 1999. The issue brought before the Supreme
Court was whether Cesar possesses the good moral character required to
be admitted to the Philippine Bar. Complainant presented evidence
tending to show that petitioner does not possess such character since he
refused to give financial support to a child he has legally acknowledged to
be his own. As expected, Cesar claimed otherwise. Aside from the
allegation that he was merely forced into acknowledging paternity of
Michael, he wanted to remove first his reasonable doubts regarding the

37
B.M. No. 984, June 25, 2002; summarized and cited in THE EVOLUTION AND ANATOMY OF THE
PHILIPPINE RULE ON DNA EVIDENCE by Peter P. Ng, M.D., LL.B., Ph.D., which appears in the UST
Law Review, 52 AY 2007-2008, p. 77-117.
childs paternity through DNA Testing. Cesar promised to abide with the
result of the DNA test and to give financial support as religiously as
before, even more, if Michael was proved to be his son. Strangely,
however, Tuesday refused to undergo DNA testing. Hence, the Supreme
Court ruled:

We take judicial notice of the fact that DNA typing is fast

becoming an important procedure not only in the field of medical
science but in criminal law and paternity disputes as well.

Considering the foregoing and the fact that petitioner promised

to abide by the result of the DNA test as well as to shoulder the
expenses therefor, we find petitioner's proposal for a DNA testing to
be quite reasonable and complainant's aversion to the test
surprising. If her claim that petitioner fathered her child is really
true, she has no reason to fear the result of the test for it would be
another evidence in her favor. Moreover this case should be decided
on a strong foundation of truth and justice rather than on blind
adherence to prima facie rules.

Finding the proposal of petitioner for DNA testing at his

expense to be fair and reasonable, unless the test is conducted and
the results thereof submitted to this Court within forty-five (45) days
from notice hereof, the Court will be constrained to grant the petition
of JULIUS R. CESAR to be allowed to take his oath as a lawyer and
to be admitted to the Philippine Bar.

Changing Tide

Thus, after a period of hesitation, the tide was beginning to turn.

After its encouragement in Tijing, its instructive dissertation in Vallejo
and its taking judicial notice in Cesar, the Supreme Court was becoming
more and more receptive to the idea of DNA testing. This is apparent in
PEOPLE versus JANSON,38 where the Supreme Court overturned the
conviction of the accused due to inconclusive identification. In its own
words:

Doubts persisted in our mind as to who were the real

malefactors. Yes, a complex offense had been perpetrated but who
were the perpetrators? How we wish we had DNA or other scientific
evidence to still our doubts!

Then, in the famous case of TECSON versus COMELEC, 39 the

Supreme Court en banc tackled the issue of filiation of then presidential
candidate Fernando Poe, Jr. (FPJ). The Supreme Court stated:

38
G.R. No. 125938, April 4, 2003.
39
G.R. No. 161434, March 3, 2004.
 In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA testing,
which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent
could be resorted to. A positive match would clear up filiation or
paternity. In Tijing vs. Court of Appeals, this Court has
acknowledged the strong weight of DNA testing.

Another positive stride towards the recognition of DNA as evidence

was the case of PEOPLE versus MOJELLO, 40 which was promulgated less
than a week after Tecson. Here, the accused was convicted of the complex
crime of rape with homicide. While the accused was not exonerated of
the rape, he was found not guilty of killing the victim for lack of DNA or
other physical evidence. The Supreme Court said that:

The cause of death was cardio-respiratory attack due to

asphyxiation and physical injuries; she was strangled to death and
left on the seashore as manifested by the frothing in her lungs. No
physical, scientific or DNA evidence was presented to pinpoint
appellant as the person who killed the victim. Thus, appellant
cannot be convicted of rape with homicide considering the
insufficiency of evidence which thereby created a reasonable doubt
as to his guilt for the said special complex crime.

Appellant should instead be held liable only for the crime of

statutory rape, the victim Lenlen Rayco being then eleven years old.

To the authors mind, the most important case about DNA evidence
was the 2004 case of PEOPLE versus YATAR. 41 Yatar was convicted of the
crime of Rape with Homicide. Testing showed that the DNA of the sperm
specimen from the vagina of the victim was identical the semen to be
that of appellants gene type. In this case, the Supreme Court found time
to examine international precedents and their applicability in the
Philippine jurisdiction. As we would later on notice, the Rule on DNA
evidence appears to be heavily influenced by these precedents. Sayeth
the Supreme Court:

In Daubert v. Merrell Dow, it was ruled that pertinent evidence

based on scientifically valid principles could be used as long as it
was relevant and reliable. Judges, under Daubert, were allowed
greater discretion over which testimony they would allow at trial,
including the introduction of new kinds of scientific techniques. DNA
typing is one such novel procedure.

Under Philippine law, evidence is relevant when it relates

directly to a fact in issue as to induce belief in its existence or non-
existence. Applying the Daubert test to the case at bar, the DNA
40
G.R. No. 145566, March 9, 2004.
41
G.R. No. 150224, May 19, 2004.
 evidence obtained through polymerase chain reaction (PCR) testing
and utilizing short tandem repeat (STR) analysis, and which was
appreciated by the court a quo is relevant and reliable since it is
reasonably based on scientifically valid principles of human genetics
and molecular biology.

In an attempt to exclude the DNA evidence, the appellant contends

that his blood samples (as well as the DNA tests) were taken in violation
of his right against self-incrimination under Section 17 of Article III of
the Constitution. The Supreme Court found this contention untenable
and, as previously noted, ruled that:

The kernel of the right is not against all compulsion, but

against testimonial compulsion. The right against self- incrimination
is simply against the legal process of extracting from the lips of the
accused an admission of guilt. It does not apply where the evidence
sought to be excluded is not an incrimination but as part of object
evidence.

We ruled in People v. Rondero that although accused-appellant

insisted that hair samples were forcibly taken from him and
submitted to the National Bureau of Investigation for forensic
examination, the hair samples may be admitted in evidence against
him, for what is proscribed is the use of testimonial compulsion or
any evidence communicative in nature acquired from the accused
under duress.

Hence, a person may be compelled to submit to fingerprinting,

photographing, paraffin, blood and DNA, as there is no testimonial
compulsion involved.

Yatar further argued that the DNA tests conducted by the

prosecution unconstitutional on the ground that resort thereto is
tantamount to the application of an ex-post facto law. The Supreme
Court found this argument specious and declared that:

No ex-post facto law is involved in the case at bar. The science

of DNA typing involves the admissibility, relevance and reliability of
the evidence obtained under the Rules of Court. Whereas an ex-post
facto law refers primarily to a question of law, DNA profiling requires
a factual determination of the probative weight of the evidence
presented.

Yatar is therefore important because it in part clarified

constitutional challenges to DNA testing as a means of gathering
evidence. Yatar is also important because it formally introduced
doctrines in American jurisprudence in the realm of Philippine law.
Frye and Daubert Tests

DNA Testing in court cases involves a scientific procedure.

Furthermore and as previously noted, testimony tending to interpret the
results of such scientific procedure would be rendered by experts. In
American jurisprudence, there are tests to determine admissibility of
scientific/expert evidence. They are:

1. FRYE TEST (Frye vs. United States, 293 F. 1013, 1014 (D.C. Cir.
1923), later on expanded by State vs. Schwartz)
2. DAUBERT TEST, (Daubert vs. Merrell Dow Pharmaceuticals, 509
U.S. 579, 113 S.Ct. 2786 (1993)), later on expanded by Kumho Tire
vs. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).

In FRYE versus UNITED STATES, Appellant was charged with and

tried for murder. At his trial, Appellant attempted to call an expert
witness to testify that he had taken a systolic blood pressure deception
test, and to further testify as to the results of the test. The expert
testimony was held inadmissible by the lower court and Appellant was
convicted of second-degree murder. Under the Frye Test, scientific
evidence is admissible if it was based on a scientific technique generally
accepted as reliable in the scientific community. Applying this rule, the
court refused to admit the expert testimony and reasoned that lie
detection testing had not gained general scientific acceptance or
recognition at that time.

A later reiteration of Frye also seemed to require that experts in the

field generally agree that the evidence is reliable and trustworthy. 42 Frye
was also used to determine the admissibility of evidence such as
graphological personality assessment,43 hypnotically induced testimony,44
and lie detector tests.45

In short, the standard that appears to be applicable under Frye is

simply general acceptance. US courts rely on scientific consensus to
assess the admissibility of novel scientific evidence. If a procedure is
not generally accepted, it would follow that the evidence obtained using
this procedure would be unreliable, if not inadmissible. The test of
general acceptance, in a way, appears in Pe Lim where the Supreme
Court said that DNA, being a relatively new science, it has not as yet
been accorded official recognition by our courts.

Then, Frye was modified by STATE OF MINNESOTA versus

SCHWARTZ.46 In a murder case, bloodstained articles and blood samples
of the accused and the victim were submitted for DNA testing to both a
government facility and a private facility. The prosecution introduced the
42
State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980).
43
State v. Anderson, 379 N.W.2d 70, 79 (Minn.1985).
44
Ibid., note 42.
45
State v. Kolander, 236 Minn. 209, 220, 52 N.W.2d 458, 464 (1952).
46
447 N.W.2d 422 (Minn. Sup. Ct. 1989).
private testing facilitys results. One of the issues brought before the
state Supreme Court included the admissibility of DNA test results in a
criminal proceeding. The state Supreme Court concluded that:

While we agree with the trial court that forensic DNA typing
has gained general acceptance in the scientific community, we hold
that admissibility of specific test results in a particular case hinges
on the laboratorys compliance with appropriate standards and
controls, and the availability of their testing data and results.

At present, the more common approach used by federal courts

and most state courts is the gatekeeper' model. This is a test
formulated from the US Supreme Court case DAUBERT versus
MERRELL DOW PHARMACEUTICALS.47 Before the trial, a Daubert
hearing will take place before the judge without the jury. The trial court
judge must consider evidence presented to determine whether an expert's
"testimony rests on a reliable foundation and is relevant to the task at
hand."48 Such Daubert hearing considers four questions about the
testimony the prospective expert proposes:

1. Whether a theory or technique can be (and has been) tested;

2. Whether it has been subjected to peer review and publication;
3. Whether, in respect to a particular technique, there is a high
known or potential rate of error; and
4. Whether there are standards controlling the technique's operation.

Our own Supreme Court observed in Yatar that, under the Daubert
test:

The US Supreme Court expanded the general acceptance

test and said that trial judges have the role of gatekeeper to
ensure that any and all scientific testimony or evidence admitted is
not only relevant, but reliable.

The Court stated that the trial judge should determine

whether the reasoning and methodology is scientifically valid and
whether that reasoning properly can be applied to the facts in
issue.

Daubert, therefore, seems to apply a twin standard of relevancy

and reliability. Any scientific evidence must first successfully cross the
threshold of relevancy. Then, the factors considered by a court in a
Daubert hearing are intended to ensure reliability of the evidence. The
case of KUMHO TIRE versus CARMICHAEL later expanded the
application of the Daubert test not only to cover scientific knowledge but
also technological or technical knowledge.
47
509 U.S. 579 [1993]), as modified and reiterated in General Electric Co. vs. Joiner (522 U.S. 136 [1997]),
and Kumho Tire Co. vs. Carmichael (526 U.S. 137 [1999])
48
Ibid., at 597
 In a later case,49 the Supreme Court declared that neither the
Frye-Schwartz standard nor the Daubert-Kumho standard is controlling
in the Philippines. At best, American jurisprudence merely has a
persuasive effect on our decisions. However, it is submitted that, based
on the language of Yatar and the earlier Vallejo, our judiciary seems to
favor the Daubert Test. As we would later see, Daubert seems to have
found its way into the Philippine Rule on DNA Evidence.

Although they are important considerations, the qualifications of

the expert to testify on scientific evidence are not the deciding factors as
to whether he will be qualified and his testimony admitted. Expert
testimony is not qualified "just because somebody with a diploma says it
is so".50 In addition to appropriate qualifications of the expert, the
proposed testimony must meet certain criteria for reliability.

Post-Yatar cases

Remember Penaso? Here is another case of an 8-month pregnancy

in the form of a paternity suit. In CABATANIA versus CA,51 Florencia
Regodos was employed as the household help of Camelo Cabatania. It
was while working there as a maid that, on January 2, 1982, Camelo
brought her to Bacolod City where they checked in at the Visayan Motel
and had sexual intercourse. Camelo promised to support her if she got
pregnant. Florencia claimed she discovered she was carrying Camelos
child 27 days after their sexual encounter. The child was born in
September 1982 or eight months later. Florencia, on behalf of her son,
filed a petition for recognition and support. The trial court ruled that:

In view of the evidence presented, the Court finds the

evidence of the plaintiff to be meritorious; defendant admitted
having a sexual intercourse with the plaintiffs mother but denied
paternity to the child. The child was presented before the Court, and
if the Court is to decide this case, based on the personal appearance
of the child, then there can never be a doubt that the plaintiff-minor
is the child of the defendant.

The Supreme Court, in dismissing the petition for recognition and

support, ruled that:

In this age of genetic profiling and deoxyribonucleic acid (DNA)

analysis, the extremely subjective test of physical resemblance or
similarity of features will not suffice as evidence to prove paternity
and filiation before the courts of law.

49
See note 53.
50
UNITED STATES vs. INGHAM, 42 M.J. 218, 226 (A.C.M.R. 1995)
51
G.R. No. 124814, October 21, 2004.
 RE: DE VILLA52 was a criminal paternity case decided after Yatar.
The Supreme Court already convicted De Villa by final judgment of
raping his niece Aileen. The judgment made reference to the fact that it
was the act of rape that got the niece pregnant and to give birth to a
child, once again after only eight (8) months. Since it was never alleged
that Aileen gave birth to a full-term nine-month-old baby, the Supreme
Court gave credence to the prosecutions assertion that she prematurely
gave birth to an eight-month-old baby by normal delivery. While serving
sentence, De Villa sought the conduct of blood and DNA test in order to
determine the paternity of the child allegedly conceived as a result of the
rape. Denied by the Supreme Court, De Villa had the DNA test conducted
independently.

The results of the tests revealed that De Villa was not the father of
Aileens child. De Villa then filed a petition for habeas corpus and asked
for new trial on the ground of newly discovered evidence. Echoing its
previous ruling in Penaso, the Supreme Court held:

Petitioner invokes the remedy of the petition for a writ of

habeas corpus to seek a re-examination of the records, without
asserting any legal grounds therefor. For all intents and purposes,
petitioner seeks a reevaluation of the evidentiary basis for his
conviction. We are being asked to reexamine the weight and
sufficiency of the evidence in this case, not on its own, but in light of
the new DNA evidence that the petitioner seeks to present to this
Court. This relief is outside the scope of a habeas corpus petition,
which applies only in case of denial of a constitutional right. The
petition for habeas corpus must, therefore, fail.

The issue of paternity is not central to the issue of petitioners

guilt or innocence. The rape of the victim is an entirely different
question, separate and distinct from the question of the father of her
child. The fact of the victims pregnancy and resultant childbirth are
irrelevant in determining whether or not she was raped. Pregnancy
is not an essential element of the crime of rape. Whether the child
which the victim bore was fathered by the purported rapist, or by
some unknown individual, is of no moment in determining an
individuals guilt.

Therefore, the DNA evidence has failed to conclusively prove to

this Court that Reynaldo de Villa should be discharged. Although
petitioner claims that conviction was based solely on a finding of
paternity of the child Leahlyn, this is not the case. Our conviction
was based on the clear and convincing testimonial evidence of the
victim, which, given credence by the trial court, was affirmed on
appeal.

52
G.R. No. 158802, November 17, 2004.
 Another civil paternity suit, HERRERA versus ALBA, 53 was decided
by the Supreme Court in 2005. Petitioner Herrera raised the issue of
whether a DNA test is a valid probative tool in this jurisdiction to
determine filiation. Petitioner inquired into the conditions under which
DNA technology may be integrated into our judicial system and the
prerequisites for the admissibility of DNA test results in a paternity suit.
Petitioner further submitted that the appellate court gravely abused its
discretion when it authorized the trial court to embark on a new
procedure to determine filiation despite the absence of legislation to
ensure its reliability and integrity, want of official recognition as made
clear in Pe Lim and the presence of technical and legal constraints in its
implementation. Petitioner maintained that the proposed DNA paternity
testing violated his right against self-incrimination. The Supreme Courts
ruling in Herrera was good and timely as, through the instrumentality of
this case, doctrines which would later on find their way into the Rule on
DNA Evidence were either reiterated or laid down for the first time:

Despite our relatively liberal rules on admissibility, trial courts

should be cautious in giving credence to DNA analysis as evidence.
We reiterate our statement in Vallejo:

In assessing the probative value of DNA evidence,

therefore, courts should consider, among other things, the
following data: how the samples were collected, how they
were handled, the possibility of contamination of the samples,
the procedure followed in analyzing the samples, whether the
proper standards and procedures were followed in conducting
the tests, and the qualification of the analyst who conducted
the tests.

It is not enough to state that the childs DNA profile matches

that of the putative father. A complete match between the DNA profile
of the child and the DNA profile of the putative father does not
necessarily establish paternity. For this reason, trial courts should
require at least 99.9% as a minimum value of the Probability of
Paternity (W) prior to a paternity inclusion. W is a numerical
estimate for the likelihood of paternity of a putative father compared
to the probability of a random match of two unrelated individuals.
An appropriate reference population database, such as the
Philippine population database, is required to compute for W. Due to
the probabilistic nature of paternity inclusions, W will never equal to
100%. However, the accuracy of W estimates is higher when the
putative father, mother and child are subjected to DNA analysis
compared to those conducted between the putative father and child
alone.

53
G.R. No. 148220, June 15, 2005.
 DNA analysis that excludes the putative father from paternity
should be conclusive proof of non-paternity. If the value of W is less
than 99.9%, the results of the DNA analysis should be considered as
corroborative evidence. If the value of W is 99.9% or higher, then
there is refutable presumption of paternity. This refutable
presumption of paternity should be subjected to the Vallejo
standards.

Anent Herreras invocation of the constitutional right against self-

incrimination, the Supreme Court held:

Section 17, Article 3 of the 1987 Constitution provides that no

person shall be compelled to be a witness against himself. Petitioner
asserts that obtaining samples from him for DNA testing violates his
right against self-incrimination. Petitioner ignores our earlier
pronouncements that the privilege is applicable only to testimonial
evidence.

In Herrera, the Supreme Court likewise discussed the applicability

of Frye, Schwarz, Daubert and Kumho in the Philippine jurisdiction and
declared that, at best, American jurisprudence merely has a persuasive
effect on our decisions.

In AGUSTIN versus CA,54 which promulgated on the same date as

Herrera, the Supreme Court may have given license to compulsory DNA
testing in certain types of cases. The petitioner in this case would not
submit to DNA testing on the ground that to undertake it against his will
would violate his right to privacy. The Supreme Court struck down his
contention and held that:

Petitioners invocation of his right to privacy fails to persuade

us. In Ople v. Torres, where we struck down the proposed national
computerized identification system embodied in Administrative
Order No. 308, we said:

In no uncertain terms, we also underscore that the right

to privacy does not bar all incursions into individual privacy.
The right is not intended to stifle scientific and technological
advancements that enhance public service and the common
good... Intrusions into the right must be accompanied by
proper safeguards that enhance public service and the
common good.

Historically, it has mostly been in the areas of legality of

searches and seizures, and the infringement of privacy of
communication where the constitutional right to privacy has been
critically at issue.

54
G.R. No. 162571, June 15, 2005.
 Petitioners case involves neither. His hollow invocation of his
constitutional rights elicits no sympathy here for the simple reason
that they are not in any way being violated. If, in a criminal case, an
accused whose very life is at stake can be compelled to submit to
DNA testing, we see no reason why, in this civil case, petitioner
herein who does not face such dire consequences cannot be ordered
to do the same.

In PEOPLE versus MACAPAL,55 the Accused was prosecuted for

allegedly raping a 23-year-old mental retardate. She got pregnant and
bore a child. Macapal was convicted by the trial court. On appeal,
Macapal argued that he was deprived of his right to fully defend himself
in light of the trial court's denial of his 'MOTION FOR DNA TEST
wherein he raised, as main issue, whether he fathered the victim's child.
Once again, Macapal supposes that, if he is not the father of the child, he
is not guilty of the rape which led to the victims pregnancy and
subsequent childbirth. The Supreme Court took the same stance it had
in Penaso and De Villa and ruled that:

The identity of the father of a rape victim's child is non-issue

in a charge for rape, the impregnation of the victim not being an
element of the offense.

More importantly, it should be pointed out that these

consolidated cases are criminal cases for rape, not civil actions for
paternity or filiation. The identity of the father of the victim's child is
a non-issue. Even her pregnancy is beside the point. What matters
is the occurrence of the sexual assault committed by appellant on
the person of the victim on four separate occasions.

Appellant's act of committing, along with his parents, in the

Agreement forged with the victim while the case was on preliminary
investigation before the Prosecutor's Office 'to shoulder one-half (1/2)
of the expenses to be incurred by [the victim] . . . in connection with
the delivery of her child is the coup de grace that dissipates any
nagging doubts on his guilt.

In another rape case involving criminal paternity, PEOPLE versus

RAYLES,56 the Supreme Court did not deviate from its previous
pronouncements that pregnancy is not an element of rape. What was
novel in this case was the inference that the Accused wanted the Court
to make from his willingness to undertake a DNA test. Said the Supreme
Court:

Accused-appellant would have this Court credit him for having

insisted that a DNA test be conducted on AAs daughter. He claims
that had he raped the victim and fathered her child, he would not
55
G.R. No. 155335, July 14, 2005.
56
G.R. No. 169874, July 27, 2007.
 have the nerve to challenge the result of a DNA test, as such
procedure would definitely reveal whether he is the father or not.

Pregnancy and the subsequent birth of her child are not

elements of the crime of rape. Moreover, non-paternity of the
appellant, if that be the case, will not necessarily negate the crime of
rape as positively proved and established by AAs credible testimony.
There may or may not be conception after the commission of the
crime of rape because the offense may be consummated even
without full penetration or even complete ejaculation on the part of
the assailant. We have time and again stressed that among the most
important consideration in a rape case is the credible testimony of
the victim. We have repeatedly held that when a woman says she
had been raped, her declaration alone is all that is necessary to
show that she had indeed been raped and her sole testimony is
sufficient if it satisfies the exacting standard of credibility needed to
convict the accused.

Finally, after 12 years of cases involving DNA evidence, the

Supreme Court promulgated A.M. No. 06-11-5-SC (2 October 2007), or
the RULE ON DNA EVIDENCE, which took effect on October 15, 2007.

SCOPE

Section 1 provides that the rule shall apply whenever DNA

evidence, as defined in Section 3 hereof, is offered, used, or proposed to be
offered or used as evidence in all criminal and civil actions as well as
special proceedings.

In Criminal Actions

DNA evidence can be used in criminal actions involving unlawful

killings such as parricide, murder, homicide, and infanticide. 57 In the
first and last cases, DNA evidence can perhaps be useful to establish
relationship, being either an element of the offense or a mitigating
circumstance. Also, as we have already observed, many of the cases
decided by the Supreme Court that refer to DNA evidence had been in
rape cases as well.

DNA evidence can also be useful in kidnapping cases, especially if

a child, for example, was kidnapped at infancy and had not been seen by
his parents for a certain number of years.58

Parenthetically, DNA evidence can also be used in adultery cases.

Adultery is committed by any married woman who shall have sexual
intercourse with a man not her husband and by the man who has carnal
knowledge of her knowing her to be married, even if the marriage be
57
Articles 246, 248, 249 and 255 of the Revised Penal Code.
58
See TIJING vs. COURT OF APPEALS, G.R. No. 125901, March 8, 2001.
subsequently declared void.59 For example, the offended husband may
allege that his unfaithful wife became pregnant by another man. DNA
evidence can be used to establish that the child is not the husbands and
therefore, that his wife had sexual intercourse with another man.
Biological samples can also be taken from the alleged paramour and
tested to see if it matches that of the child.

The foregoing example is reminiscent of the case of VILLAFLOR

versus SUMMERS.60 Villaflor was charged with the crime of adultery. The
trial court judge ordered her to subject herself to a physical examination
to see whether or not she was pregnant and thus determine the crime of
adultery being charged to her. She refused such physical examination,
interposing the argument that such examination was a violation of her
right against self-incrimination. She was found in contempt of court and
was ordered to be committed to Bilibid Prison until she should permit
the medical examination required by the court. In ruling against her
contention, the Supreme Court declared that:

The constitutional guaranty, that no person shall be compelled

in any criminal case to be a witness against himself, is limited to a
prohibition against compulsory testimonial self-incrimination. An
ocular inspection of the body of the accused is permissible.

Remember also that, in Agustin, the Supreme Court held that:

Excluded from the realm of self-incrimination are several

kinds of object evidence taken from the person of the accused. These
include photographs, hair, and other bodily substances. We have
declared as constitutional several procedures performed on the
accused such as pregnancy tests for women accused of adultery
XXX. In Jimenez v. Caizares, we even authorized the examination of
a womans genitalia, in an action for annulment filed by her
husband, to verify his claim that she was impotent, her orifice being
too small for his penis. Some of these procedures were, to be sure,
rather invasive and involuntary, but all of them were constitutionally
sound. DNA testing and its results, per our ruling in Yatar, are now
similarly acceptable.

In an adultery case where the husband alleges that his wife gave
birth to another mans offspring, what would be the status of the child?
Under the Family Code, children conceived or born during the marriage
of the parents are presumed to legitimate. 61 In fact, the child shall be
considered legitimate although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress. 62 If the offended
husband wishes to impugn the legitimacy of the child, he may do so by

59
Article 333 of the Revised Penal Code.
60
41 Phil. 62 (1920).
61
Article 164 of the Family Code (E.O. No. 209).
62
Article 167.
proving that, for biological or other scientific reasons, the child could not
have been his.63

Take note that the presumption of legitimacy of children born

during a valid marriage is disputable. Further, the finding of adultery
does not, by itself, rebut the presumption of legitimacy. DNA Evidence
can, therefore, be presented to prove that for biological or other scientific
reasons, the child could not have been that of the husband.

In Civil Actions

The Rule on DNA Evidence does not distinguish between ordinary

and special civil actions. A would be an action for support. Entitlement to
support is dependent on family relationship. DNA testing can be done to
determine this.

In Special Proceedings

A special proceeding is a remedy by which a party seeks to

establish a status, a right, or a particular fact. 64 Paternity suits similar to
the ones in Herrera and Cabatania, among many others, fall under this
category.

Another example would be habeas corpus cases under Rule 102.

Habeas corpus may be resorted to in cases where the rightful custody of
any person is withheld from the person entitled thereto. 65 Specifically, the
writ is the proper legal remedy to enable parents to regain the custody of
a minor child.66 Once again, the Tijing case comes to mind.

DEFINITION OF TERMS

Section 3 of the Rule defines the following terms:

a. Biological sample means any organic material originating from a

persons body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes blood, saliva and other
body fluids, tissues, hairs and bones.

b. DNA means deoxyribonucleic acid, which is the chain of

molecules found in every nucleated cell of the body. The totality of
an individuals DNA is unique for the individual, except identical
twins.

63
Article 166 (2).
64
Rule 1, Section 3(c) of the Rules of Court.
65
Rule 102, Section 1 of the Rules of Court.
66
SALVANA vs. GAELA, 55 Phil. 680.
 c. DNA evidence constitutes the totality of the DNA profiles, results
and other genetic information directly generated from DNA testing
of biological samples.

d. DNA profile means genetic information derived from DNA testing

of a biological sample obtained from a person, which biological
sample is clearly identifiable as originating from that person.

e. DNA testing means verified and credible scientific methods which

include the extraction of DNA from biological samples, the
generation of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the
purpose of determining, with reasonable certainty, whether or not
the DNA obtained from two or more distinct biological samples
originates from the same person (direct identification) or if the
biological samples originate from related persons (kinship
analysis).

f. Probability of Parentage means the numerical estimate for the

likelihood of parentage of a putative parent compared with the
probability of a random match of two unrelated individuals in a
given population.

Based on the foregoing definitions, it is the biological sample that

is, technically speaking, the object evidence that can either be found in
a crime scene or extracted from an individual. The biological sample is
the material that will be subjected to DNA testing. DNA testing then
produces a DNA profile, the totality of which and other genetic
information constitutes the DNA evidence in a case. When a witness
testifies in court about DNA evidence, he would therefore be testifying on
the totality of the DNA profiles, results and other genetic information
directly generated from DNA testing of biological samples, including how
the DNA was extracted from biological samples, how DNA profiles were
generated and then proceeds to compare the information obtained from
the DNA testing of the biological samples in reference to the fact in issue
in the case.

Application for DNA Testing Order

Section 4 of the Rule provides:

Sec. 4. Application for DNA Testing Order. The appropriate

court may, at any time, either motu proprio or on application of any
person who has a legal interest in the matter in litigation, order a
DNA testing. Such order shall issue after due hearing and notice to
the parties upon a showing of the following:

a. A biological sample exists that is relevant to the case;

 b. The biological sample: (i) was not previously subjected to
the type of DNA testing now requested; or (ii) was
previously subjected to DNA testing, but the results may
require confirmation for good reasons;
c. The DNA testing uses a scientifically valid technique;
d. The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the
case; and
e. The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy or integrity of
the DNA testing.

This Rule shall not preclude a DNA testing, without need of a

prior court order, at the behest of any party including law
enforcement agencies, before a suit or proceeding is commenced.

A DNA testing order may, therefore, be issued at the courts own

initiative or on application by any person who has a legal interest in the
matter in litigation. Of note is the fact that the provision uses the term
person and not party. This could mean that a person need not be
plaintiff, complainant/prosecutor or petitioner, or defendant, accused or
respondent in order to apply for the issuance of the order. What Section
4 simply requires is legal interest. The Rule, however, does not define
this standard. For sure, mere casual interest of a stranger would not
suffice. It has to be one that relates to the matter in litigation.

What is unclear is whether legal interest is to be determined

strictly in the context of interest as it is understood under the Rules of
Court. There would be no question if it is a party himself asks for DNA
testing. However, if it be by a non-party, how should a court determine
whether proper and sufficient legal interest exists to order the testing to
be done?

Should legal interest be interpreted in the context of a real party

in interest, the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. 67 ? If
yes, then legal interest would mean material interest or an interest in
issue to be affected by the decree or judgment of the case, as
distinguished from mere curiosity about the question involved. 68 In such
case, one having no material interest to protect cannot invoke the
jurisdiction of the court to cause the issuance of a DNA testing order.
Furthermore, by real interest is meant a present substantial interest, as
distinguished from a mere expectancy, or a future, contingent,
subordinate or consequential interest.69 Note, however, that real party in
interest is a requirement in the commencement, prosecution and

67
Section 2, Rule 3 of the Rules of Court.
68
SPOUSES OCO vs. LIMBARING, G.R. No. 161298, January 31, 2006.
69
Ibid.
defense of suits.70 Note further that to apply the real party in interest
standard would defeat the language and intent of the Rule which is not
to limit applications for DNA testing to parties.

Should legal interest perhaps be understood in the context of

locus standi or legal standing? Maybe not because locus standi is a
term ordinarily applied in public suits. However, the requirement of
personal stake, or a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury, seem to at least be
semantically appropriate in DNA testing. Verily, if one has a personal and
substantial interest in DNA testing that he may conceivably sustain some
injury, he may be allowed to apply for or even oppose it. The legitime of a
legitimate child, for example, would be diminished if someone claims to
be an illegitimate child of his father in the proper suit. If his father does
not dispute the claim but the legitimate child suspects the claimant to be
an impostor, it would clearly be fair to allow such legitimate child to ask
that the claimant be DNA tested.

Should legal interest be understood in the context of interest in

intervention?71 It may seem appropriate to do so inasmuch as the rule on
intervention uses the same terms person (instead of party) and legal
interest in providing for who may intervene in an action. 72 In
intervention cases, legal interest is defined as one that must be actual
and material, direct and of an immediate character, not merely
contingent or expectant so that the intervenor will either gain or lose by
the direct legal operation of the judgment.

Furthermore, if a non-party wishes to apply for the issuance of a

DNA testing order, he would figuratively be coming from the same place
and be similarly situated as a proposed intervenor. To use a term loosely,
both the non-party applicant and the proposed intervenor are strangers
to the present suit. Both the non-party applicant and the proposed
intervenor are either interested in the matter in litigation or in the
success of either of the parties or situated as to be adversely affected by
a distribution or other disposition of property. However, bereft of any
prior practical experience of observing a non-party asking for DNA
testing, the author cannot help but wonder if such exercise would
necessitate the application of same doctrines and requirements relating
to Rule 19. Should such non-party file a motion for intervention first or
can he immediately make an appearance in the case and directly apply
for the issuance of a DNA testing order? Would prior leave, therefore, be
required or not? As in intervention, should the court also consider
whether or not the application will unduly delay or prejudice the
adjudication of the rights of the original parties, and whether or not the

70
Ibid, note 67.
71
Rule 19 of the Rules of Court.
72
Section 1 of Rule 19 provides, in part: A person who has a legal interest in the matter in litigation, or in
the success of either of the parties, or an interest against both, or is so situated as to be adversely affected
by a distribution or other disposition of property in the custody of the court or of an officer thereof may,
with leave of court, be allowed to intervene in the action. (Underscoring supplied).
applicants rights may be fully protected in a separate proceeding? Take
note that no such duty is imposed by Section 4.

Under Section 4, a hearing shall be conducted where the court

should be satisfied of the existence of five (5) conditions before it issues a
DNA testing order. The requirement in paragraph (a) relates to relevancy.
The requirements in paragraphs (b) to (e) are conditions obviously
intended to ensure reliability.

As previously noted, in the United States, a Daubert hearing will

take place before the trial of a case where expert or scientific evidence
will be presented. In this hearing, the trial judge must consider evidence
presented to determine whether an expert's testimony rests on a reliable
foundation and is relevant to the task at hand. Daubert therefore requires
a showing of relevancy and reliability. As mentioned earlier, any scientific
evidence must first successfully cross the threshold of relevancy.
Afterwards, the court will consider several factors to ensure reliability of
the evidence. Our own Section 4, therefore, mirrors the hearing,
relevancy and reliability requirements of Daubert cases.

Finally, in Section 4, the Rule allows the conduct of DNA testing,

without need of a prior court order, at the behest of any party, before a
suit or proceeding is commenced. DNA testing, therefore, like
depositions, can be pending action or before action.73

Issuance of DNA Testing Order

Section 5 of the Rule provides that, if the court finds that the
requirements in Section 4 have been complied with, the court shall:

a. Order, where appropriate, that biological samples be taken from

any person or crime scene evidence;

b. Impose reasonable conditions on DNA testing designed to protect

the integrity of the biological sample, the testing process and the
reliability of the test results, including the condition that the DNA
test results shall be simultaneously disclosed to parties involved in
the case; and

c. If the biological sample taken is of such an amount that prevents

the conduct of confirmatory testing by the other or the adverse
party and where additional biological samples of the same kind can
no longer be obtained, issue an order requiring all parties to the
case or proceedings to witness the DNA testing to be conducted.

Section 5 further provides that:

73
Rules 23 and 24 of the Rules of Court.
 An order granting the DNA testing shall be immediately
executory and shall not be appealable. Any petition for certiorari
initiated therefrom shall not, in any way, stay the implementation
thereof, unless a higher court issues an injunctive order. The grant of
DNA testing application shall not be construed as an automatic
admission into evidence of any component of the DNA evidence that
may be obtained as a result thereof.

Thus, by direct mandate of the Rule, an order granting DNA testing

pending action is immediately executory. Of note is the fact that the
issuance of a DNA Testing order is merely interlocutory and, for this
reason, the remedy of appeal is not allowed against it. The remedy
provided is a petition for certiorari but even the availment of this remedy
does not stay the implementation of the order, unless the enjoined by a
higher court.

Of great importance is the last sentence of Section 5. By its terms,

DNA evidence obtained as a result of DNA testing is not guaranteed
automatic admission into evidence. The reasons for this are obvious.
First, evidence is admissible when it is relevant to the fact in issue and is
not otherwise excluded by statute or the Rules of Court. 74 While the
relevancy is already ensured under our Daubert-like Section 4 hearing
prior to the issuance of the DNA testing order, competency issues may
during or after DNA testing. Second, like any other evidence, DNA
evidence must still be formally offered in order for the court to consider
it.75 Third, DNA evidence, being object evidence, does not present itself. It
must still be sponsored by a competent witness. This witness, as
previously noted, ought to be an expert witness. This, in turn, means
that the expert, if the opponent makes no admission as to his
qualifications, must be qualified as such before he can testify on his
opinion.76 In certain situations as well, the testimony might also require
compliance with the Judicial Affidavit Rule, 77 which applies to all actions,
proceedings, and incidents requiring the reception of evidence before the
courts.78 This would, of course, include DNA evidence. An expert witness
who will testify on DNA evidence must execute a judicial affidavit in
paternity suits and in criminal actions covered by Section 9 of the
Judicial Affidavit Rule. Thus, in a criminal case for adultery (where the
prosecution might employ DNA evidence to prove that a child was born
out of a wifes sexual intercourse with another man), judicial affidavits
will be required as the penalty does not exceed six years. 79 Likewise, in a
rape case, for example, if the accused agrees to or specifically opts for the
use of judicial affidavits, the witness who will testify on the DNA evidence
will have to execute one.

74
Rule 128, Section 3 of the Rules of Court.
75
Rule 132, Section 34 of the Rules of Court.
76
Ibid, note 18;
77
A.M. No. 12-8-8-SC, promulgated on September 4, 2012.
78
Ibid., Section 1.
79
Article 333 of the Revised Penal Code. xxx Adultery shall be punished by prision correccional in its
medium and maximum periods.
Post-conviction DNA Testing

Section 6 of the Rule allows DNA Testing after conviction as

follows:

Sec. 6. Post-conviction DNA Testing. Post-conviction DNA

testing may be available, without need of prior court order, to the
prosecution or any person convicted by final and executory judgment
provided that (a) a biological sample exists, (b) such sample is
relevant to the case, and (c) the testing would probably result in the
reversal or modification of the judgment of conviction.

Prior to the promulgation of the Rule, there were several cases

decided by the Supreme Court where the accused prayed for post-
conviction DNA Testing as an attempt to reverse their convictions. 80 In
these cases, the Supreme Court either denied requests for post-
conviction DNA testing or pleas for acquittal based on DNA testing
results because pregnancy is not an element of rape. Instead, what the
Supreme Court favored were the testimonies positively identifying the
several Accused as the rapists. Has this trend changed when the Rule
took effect? The answer is no, as we shall see by surveying post-
conviction DNA cases decided after the promulgation of the Rule.

SURVEY OF CASES
Post-conviction DNA testing

In PEOPLE versus UMANITO,81 the Supreme Court applied the

Rule for the first time after it took effect on October 15, 2007. The
Supreme Court, through Mr. Justice Dante O. Tinga, remanded the case
against Umanito to the Regional Trial Court (RTC) for reception of
evidence and noted that:

It is obvious to the Court that the determination of whether the

appellant is the father of the rape victims child [born from the
alleged rape], which may be accomplished through DNA testing, is
material to the fair and correct adjudication of the instant appeal.
Under Section 4 of the Rule on DNA Evidence, the courts are
authorized, after due hearing and notice, motu proprio to order a
DNA testing.

In the second Umanito case,82 the results were in. The post-
conviction DNA testing showed a 99.9999% probability of paternity that
Umanito was the biological father of the child born out of the rape. The
Court ruled:
80
ANDAL vs. PEOPLE, G.R. No. 138268, May 26, 1999; PEOPLE versus PENASO, G.R. No. 121980,
February 23, 2000; IN RE: DE VILLA, G.R. No. 158802, November 17, 2004, PEOPLE vs. MACAPAL,
G.R. No. 155335, July 14, 2005; PEOPLE versus RAYLES, G.R. No. 169874, July 27, 2007.
81
G.R. No. 172607, October 26, 2007.
82
PEOPLE versus UMANITO, G.R. No. 172607, April 16, 2009.
 Given that the results of the Court-ordered DNA testing
conforms with the conclusions of the lower courts, and that no cause
is presented for us to deviate from the penalties imposed below, the
Court sees no reason to deny Umanitos Motion to Withdraw Appeal.

The second Umanito case is particularly instructive. Here, the

Supreme Court recounted in detail how the DNA testing was undertaken.
For this reason, Umanito is a must-read for law students and
practitioners alike.

Then, in PEOPLE versus MAGLENTE,83 the complainant alleged

that Maglente, her biological father, had subjected her to sexual abuse as
early as 1997, when she was still nine years old, until July 13, 2002,
when she reached 14 years of age. As a result of her fathers molestation,
she became pregnant and delivered a baby boy on October 1, 2002,
which she gave up for adoption. On cross-examination, she testified that
she was willing to have her baby undergo DNA testing but the babys
whereabouts was unknown to her. The Supreme Court ruled that:

Even if the DNA test were conducted and it established that

appellant had not fathered the child, it would still be inconclusive to
prove that appellant was not guilty of having raped private
complainant. He cannot obtain an acquittal based on the
circumstances of private complainants pregnancy. Impregnation is
not an element of rape. Even proof that the child was fathered by
another man does not show that the appellant is not guilty. For the
conviction of an accused, the pregnancy of the victim is not required
to be proved, since it is sufficient that the prosecution establish
beyond reasonable doubt, as it had in this case, that the accused
had forced sexual relations with the victim.

Thus, in Maglente, the Supreme Court reiterated its consistent

stand that pregnancy is not an element of rape.

Remedy if results are favorable

If the results of post-conviction DNA testing are favorable to the

convict, Section 10 provides:

Sec. 10. Post-conviction DNA Testing Remedy if the Results Are

Favorable to the Convict. The convict or the prosecution may file a
petition for a writ of habeas corpus in the court of origin if the results of
the post-conviction DNA testing are favorable to the convict. In the case
the court, after due hearing finds the petition to be meritorious, it shall
reverse or modify the judgment of conviction and order the release of
the convict, unless continued detention is justified for a lawful cause.

83
G.R. No. 179712, June 27, 2008.
 A similar petition may be filed either in the Court of Appeals or
the Supreme Court, or with any member of said courts, which may
conduct a hearing thereon or remand the petition to the court of origin
and issue the appropriate orders.

Revisiting De Villa

Thus, if the results of post-conviction DNA testing are favorable to

the convict, his remedy is to file a petition for habeas corpus. Of note is
the fact that this was the very remedy applied for by the convict in De
Villa. It will be remembered that, in De Villa, the Accused, Reynaldo, was
sentenced to death for raping his 12-year-old niece, Aileen Mendoza, who
had subsequently given birth to a baby girl. De Villa had always
maintained his innocence, but no paternity test had been carried out to
establish whether or not he was the father of the child. Because de Villa
was in prison, Dr. Maria Corazon de Ungria, head of the DNA Analysis
Laboratory of UP, could not obtain a DNA sample from de Villa directly.
She then enlisted the help of the prison priest. He visited de Villa while
hiding a sterile blade and a blood collection vial within his robes. De
Ungria still needed a sample from the child he had allegedly fathered,
who was then aged 10. De Villas grandson, a schoolmate of Mendozas
daughter, was coached to organize a spitting competition in the
playground. He collected the girls spit in a cup, and De Ungria used it to
generate a DNA profile. The results confirmed that de Villa was not the
girls father, but the Supreme Court refused to consider the new evidence
and so De Villa remained on death row.84

Anent the remedy of habeas corpus, the Supreme Court declared

that:

The extraordinary writ of habeas corpus has long been a

haven of relief for those seeking liberty from any unwarranted
denial of freedom of movement. Very broadly, the writ applies to all
cases of illegal confinement or detention by which a person has been
deprived of his liberty, or by which the rightful custody of any
person has been withheld from the person entitled thereto.[22]
Issuance of the writ necessitates that a person be illegally deprived
of his liberty. XXX

The most basic criterion for the issuance of the writ, therefore,
is that the individual seeking such relief be illegally deprived of his
freedom of movement or placed under some form of illegal restraint.
If an individuals liberty is restrained via some legal process, the
writ of habeas corpus is unavailing. Concomitant to this principle,
the writ of habeas corpus cannot be used to directly assail a
84
Lifted from the on-line article Innocents die as DNA goes untested by Rowan Hooper, available @
https://www.newscientist.com/article/dn8377-innocents-die-as-dna-goes-untested/ (Last retrieved on
January 8, 2017)
 judgment rendered by a competent court or tribunal which, having
duly acquired jurisdiction, was not deprived or ousted of this
jurisdiction through some anomaly in the conduct of the proceedings.

Thus, notwithstanding its historic function as the great writ of

liberty, the writ of habeas corpus has very limited availability as a
post-conviction remedy. In the recent case of Feria v. Court of
Appeals, we ruled that review of a judgment of conviction is allowed
in a petition for the issuance of the writ of habeas corpus only in
very specific instances, such as when, as a consequence of a
judicial proceeding, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a person; (b) the court
had no jurisdiction to impose the sentence; or (c) an excessive
penalty has been imposed, as such sentence is void as to such
excess.

In De Villa, the Supreme Court further noted that:

Petitioner invokes the remedy of the petition for a writ of

habeas corpus to seek a re-examination of the records, without
asserting any legal grounds therefor. For all intents and purposes,
petitioner seeks a reevaluation of the evidentiary basis for his
conviction. We are being asked to reexamine the weight and
sufficiency of the evidence in this case, not on its own, but in light of
the new DNA evidence that the petitioner seeks to present to this
Court. This relief is outside the scope of a habeas corpus petition,
which applies only in case of denial of a constitutional right. The
petition for habeas corpus must, therefore, fail.

Once again, the Supreme Court ruled in De Villa that:

(T)he fact or not of the victims pregnancy and resultant

childbirth are irrelevant in determining whether or not she was
raped. Pregnancy is not an essential element of the crime of rape.
Whether the child which the victim bore was fathered by the
purported rapist, or by some unknown individual, is of no moment in
determining an individuals guilt.

This author cannot help but wonder if the verdict had been
different had De Villa been decided after the Rule took effect. In the case,
the Supreme Court noted that it was hard-pressed to find legal basis on
which to anchor the grant of the writ as De Villa did not allege any denial
of a constitutional right. The Supreme Court lamented that De Villa
invoked of the remedy without asserting any legal grounds therefor.
Besides, with the adamant stand of the Supreme Court that pregnancy is
not an element of rape, a case similar to De Villa where a writ of habeas
corpus is applied for on the ground of negative paternity would
conceivably be decided in the same way as De Villa, Andal and Penaso.
Hypothetically, however, if the conviction, for example, relied solely on
DNA to identify the accused, a favorable result of post-conviction DNA
testing might be sufficient to overturn it and cause the issuance of a writ
of habeas corpus. This author further notes that, as adverted to by the
Supreme Court in De Villa, the petitioner there was unable to give good
grounds for the issuance of the writ. His statement of grounds was
imprecise.

Now, Section 10 provides viable legal basis for the issuance of the
writ by direct provision of the Rule. It is therefore logical to suppose that,
to successfully invoke the writ, the habeas corpus petitioner can properly
utilize Section 10 as basis but should be more precise in his invocation of
the remedy by clearly stating ample legal basis on which to anchor the
grant of a writ of habeas corpus.

The author likewise opines that the following portion of the

Supreme Courts decision in De Villa is now deemed clarified and
modified by the Rule, to wit:

We are being asked to reexamine the weight and sufficiency of

the evidence in this case, not on its own, but in light of the new DNA
evidence that the petitioner seeks to present to this Court. This relief
is outside the scope of a habeas corpus petition. The petition for
habeas corpus must, therefore, fail.

At present, Section 10 allows courts, including the Supreme Court,

on the basis of favorable post-conviction DNA testing results, which for
all intents and purposes would be new DNA evidence, after due
hearing, to reverse or modify the judgment of conviction and order the
release of the convict xxx.

This author further opines that non-paternity, as established by

post-conviction DNA testing, should be used as evidence to exonerate the
accused or convict in a rape case if it is warranted by the factual milieu
of the case. For example, in De Villa, the judgment made reference to the
fact that it was the act of rape that got the appellants niece pregnant
and caused her to consequently bear a child. The request for paternity
testing was also consistent with the defense presented at trial. The
appellants testimony of his incapacity for sexual intercourse due to his
advanced age was supported by his wifes testimony. There were also no
allegations of multiple perpetrators or of promiscuous behavior by the
victim. More importantly, records show that the trial court based its
decision entirely on the birth of the child.

In Penaso, the complainant alleged that: as a result of his devilish

act, it caused me to have an unwanted pregnancy of an unwanted child.
 In fact, consideration of the factual milieu of the case seems to be
supported by the Supreme Courts statement in PEOPLE versus
BASALLO.85 Here, the Supreme Court mentioned that:

For a man who vehemently asserts his innocence, it mystifies

the mind that appellant would not exhaust all available avenues to
prove his innocence especially DNA testing that would conclusively
prove that he is not the father of ABCs son who is alleged to be the
fruit of his crime.

Thus, if in its finding of rape the lower court anchored conviction

on the fact that the unlawful intercourse resulted in pregnancy and
birth, shouldnt negative paternity be considered reasonable doubt
against the finding of guilt? Wouldnt doubt be reasonable if, for
example, the date of birth shows that the child was born less than the
usual gestation period of nine (9) months and the accused alleged that
he did not have carnal knowledge of the victim at the time of the alleged
rape that resulted in the victims pregnancy? It is not impossible to
suppose that there can be cases where a womans pregnancy is by a man
who refuses to take responsibility therefor. To conceal her dishonor, she
may cry rape against another man who is otherwise innocent and
attribute her pregnancy to him. DNA Testing would prove that the
innocent man did not father the child that was born out of the rape. It
would also prove that the complainant was not being entirely truthful,
thereby affecting her credibility adversely. Of course, all the foregoing
suppositions are, for the most part, imaginary. Verily, none of us were
there when the cases of De Villa, Andal and Penaso were actually tried.
Cases are of course won according to how they were tried in court and on
the strength of the evidence.

As a final note on De villa, Dr. Maria Corazon de Ungria marshaled

international pressure and eventually, in February 2005, President
Gloria Macapagal-Arroyo granted De Villa a pardon. 86 De Villa was 67
years old at the time of the alleged rape. Thus, when he was released on
pardon, he was already 78 years old.

Assessment of probative value and

Reliability of testing methodology

Section 7 provides that in assessing the probative value of the DNA

evidence presented, the court shall consider the following:

a. The chain of custody, including how the biological samples were

collected, how they were handled, and the possibility of
contamination of the samples;

85
G.R. No. 182457, January 30, 2013.
86
Ibid., note 84.
 b. The DNA testing methodology, including the procedure followed in
analyzing the samples, the advantages and disadvantages of the
procedure, and compliance with the scientifically valid standards
in conducting the tests;

c. The forensic DNA laboratory, including accreditation by any

reputable standards-setting institution and the qualification of the
analyst who conducted the tests. If the laboratory is not accredited,
the relevant experience of the laboratory in forensic casework and
credibility shall be properly established; and

d. The reliability of the testing result, as hereinafter provided.

Take note that that this provision is an expansion of the Supreme

Courts pronouncements in Vallejo, where it ruled that:

In assessing the probative value of DNA evidence, therefore,

courts should consider, among others things, the following data: how
the samples were collected, how they were handled, the possibility
of contamination of the samples, the procedure followed in analyzing
the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst
who conducted the tests.

As to the reliability of DNA testing methodology, Section 8 provides

that, in evaluating whether the DNA testing methodology is reliable, the
court shall consider the following:

a. The falsifiability of the principles or methods used, that is, whether

the theory or technique can be and has been tested;

b. The subjection to peer review and publication of the principles or

methods;

c. The general acceptance of the principles or methods by the

relevant scientific community;

d. The existence and maintenance of standards and controls to

ensure the correctness of data generated;

e. The existence of an appropriate reference population database; and

f. The general degree of confidence attributed to mathematical

calculations used in comparing DNA profiles and the significance
and limitation of statistical calculations used in comparing DNA
profiles.

By an examination of Section 8, we find that it mirrors and

expands the Daubert test first alluded to in our jurisdiction in Yatar. It
therefore appears that, despite the Supreme Courts statement in
Herrera that American decisions are not controlling in the Philippines
and that, at best, they merely have a persuasive effect on Philippine
decisions, we have already incorporated Daubert in our laws on DNA
evidence.

DNA testing results

Section 9 of the Rule provides:

Sec. 9. of DNA Testing Results. In evaluating the results of

DNA testing, the court shall consider the following:

A. The evaluation of the weight of matching DNA evidence or

the relevance of mismatching DNA evidence;

B. The results of the DNA testing in the light of the totality of

the other evidence presented in the case; and that

C. DNA results that exclude the putative parent from paternity

shall be conclusive proof of non-paternity. If the value of
the Probability of Paternity is less than 99.9%, the results
of the DNA testing shall be considered as corroborative
evidence. If the value of the Probability of Paternity is
99.9% or higher there shall be a disputable presumption of
paternity.

Weight of matching DNA evidence

Weight, of course, means the reliability (or believability) and

probative value of evidence. Thus, if the DNA samples match, the court is
tasked to determine whether the DNA testing result is reliable and what
evidentiary value it will assign to it (i.e., whether the evidence is to be
believed or not).

Relevance of mismatching
DNA evidence

Relevancy means that evidence must have such a relation to the

fact in issue as to induce belief in its existence or non-existence. Thus,
under this factor, the court should consider whether the fact that the
DNA profiles do not match bears a relation to the fact in issue in the
case. For example, if the semen found at the vagina of the victim does
not match the DNA profile of the accused-rapist, would it be relevant to
the issue of whether the accused raped the victim or not? At first blush,
it would seem that would be relevant. However, the Supreme Court found
otherwise in PEOPLE versus CABIGQUEZ.87 The Court ruled that:

87
G.R. No. 185708, September 29, 2010.
 Neither a positive DNA match of the semen nor the presence of
spermatozoa is essential in finding that rape was committed. The
important consideration in rape cases is not the emission of semen
but the penetration of the female genitalia by the male organ.

The totality of the other evidence

We ought to remember that DNA evidence can be both inculpatory

and exculpatory. It is exculpatory when it provides grounds for the
possible acquittal of the accused and inculpatory if it is used to secure a
conviction. In either case, Section 9 provides in part that the court, in
evaluating the results of DNA testing, should consider them in light of
the totality of the other evidence presented in the case.

This is particularly applicable in rape cases because, historically,

the Supreme Court had been partial to credible, positive identification by
the victim (such as in Andal). Thus, even if there is a negative DNA
match between the semen gathered from the female genitalia and the
biological sample taken from the accused, acquittal may still be
unwarranted if, from the totality of evidence, a finding of guilt beyond
reasonable doubt can still be had. DNA evidence, in the light of the
totality of evidence extant in a case, may not suffice to produce
exculpatory results. The Supreme Court stated further in Cabigquez that
(a) positive DNA match is unnecessary when the totality of the evidence
presented before the court points to no other possible conclusion, i.e.,
appellant raped the private offended party. A positive DNA match may
strengthen the evidence for the prosecution, but an inconclusive DNA test
result may not be sufficient to exculpate the accused, particularly when
there is sufficient evidence proving his guilt.

The requirement that the totality of evidence must still be

considered even in the presence of inculpatory DNA evidence is
appropriate, especially if we consider that DNA evidence, by its nature,
may be considered circumstantial evidence. With this in mind, we must
recall that circumstantial evidence is sufficient for conviction only if (1)
there is more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable
doubt.88 In PEOPLE versus YAU,89 the Supreme Court appreciated DNA
evidence in addition to other pieces of circumstantial evidence. Yau was a
kidnapping for ransom case where there was no direct evidence to
identify the captor. The captor always wore a red mask and so the victim
never saw his face. This mask was retrieved as evidence. A test
conducted by the US Federal Bureau of Investigation revealed that the
DNA found in the mask used by the said captor matched that of
appellant Petrus Yau. The prosecution also presented other pieces of
circumstantial evidence. The Supreme Court held:
88
Rule 133, Section 4 of the Rules of Court.
89
G.R. No. 208170, August 20, 2014.
 The Court agrees with the findings of the RTC and the CA that
the foregoing pieces of circumstantial evidence, when analyzed and
taken together, definitely lead to no other conclusion than that Petrus
was the author of the kidnapping for ransom. When viewed as a
whole, the prosecution evidence effectively established his guilt
beyond reasonable doubt.

The Court agrees with the findings of the RTC and the CA that
the foregoing pieces of circumstantial evidence, when analyzed and
taken together, definitely lead to no other conclusion than that Petrus
was the author of the kidnapping for ransom. When viewed as a
whole, the prosecution evidence effectively established his guilt
beyond reasonable doubt.

Probability of Paternity

Worthy of special emphasis is Section 9(c) which talks about

Probability of Paternity. The provision states that DNA results that
exclude the putative parent from paternity shall be conclusive proof of
non-paternity. If the value of the Probability of Paternity is less than
99.9%, the results of the DNA testing shall be considered as
corroborative evidence. If the value of the Probability of Paternity is
99.9% or higher, there shall be a disputable presumption of paternity.
The presumption established in the latter case is merely disputable and
should never be considered conclusive because, by definition, probability
of parentage is a mere estimate under Section 3(f).

Of note is the fact that Section 9(c) is directly taken from the
pronouncements of the Supreme Court in Herrera where the Court ruled
that:

A complete match between the DNA profile of the child and the
DNA profile of the putative father does not necessarily establish
paternity. For this reason, trial courts should require at least 99.9%
as a minimum value of the Probability of Paternity (W) prior to a
paternity inclusion. W is a numerical estimate for the likelihood of
paternity of a putative father compared to the probability of a
random match of two unrelated individuals. XXX

DNA analysis that excludes the putative father from paternity

should be conclusive proof of non-paternity. If the value of W is less
than 99.9%, the results of the DNA analysis should be considered as
corroborative evidence. If the value of W is 99.9% or higher, then
there is refutable presumption of paternity.
 Subsequently, more paternity cases were decided by the Supreme
Court that dealt with DNA evidence. Notably, we have ESTATE OF ONG
versus DIAZ90 and LUCAS versus LUCAS.91

In Ong, a Complaint for compulsory recognition with prayer for

support pending litigation was filed by minor Joanne Diaz, represented
by her mother and guardian, Jinky, against Rogelio G. Ong before the
RTC of Tarlac City. As alleged in the complaint, Jinky and Rogelio got
acquainted in November 1993 in Tarlac City. This developed into
friendship and later blossomed into love. At this time, however, Jinky was
already married to a Japanese national. From January 1994 to
September 1998, Jinky and Rogelio cohabited and lived together. From
this live-in relationship, Joanne Rodjin Diaz was conceived and born on
February 25, 1998. In September 1998, Rogelio abandoned Joanne and
Jinky, and stopped supporting the child, alleging that he is not the
father. While the case was pending, however, Rogelio died.

In this case, the Supreme Court, in considering the fact that the
child was born during Jinkys marriage with her Japanese husband, held
that:

XXX The burden of proving paternity is on the person who

alleges that the putative father is the biological father of the child.
There are four significant procedural aspects of a traditional
paternity action which parties have to face: a prima facie case,
affirmative defenses, presumption of legitimacy, and physical
resemblance between the putative father and child.

A child born to a husband and wife during a valid marriage is

presumed legitimate. XXX

Then, anent DNA testing, the Supreme Court said that with the
advancement in the field of genetics, and the availability of new
technology, it can now be determined with reasonable certainty whether
Rogelio is the biological father of the minor, through DNA testing. But,
more importantly, the Supreme Court in Ong declared that the death of
the petitioner does not ipso facto negate the application of DNA testing for
as long as there exists appropriate biological samples of his DNA. XXX
(T)he term biological sample means any organic material originating from a
persons body, even if found in inanimate objects, that is susceptible to
DNA testing. This includes blood, saliva, and other body fluids, tissues,
hairs and bones. The Supreme Court added:

Thus, even if Rogelio already died, any of the biological samples

as enumerated above as may be available, may be used for DNA
testing. In this case, petitioner has not shown the impossibility of
obtaining an appropriate biological sample that can be utilized for the
90
G.R. No. 171713, December 17, 2007.
91
G.R. No. 190710, June 6, 2011.
 conduct of DNA testing. And even the death of Rogelio cannot bar the
conduct of DNA testing.

In People v. Umanito, citing Tecson v. Commission on Elections,

this Court held:

In case proof of filiation or paternity would be unlikely to

satisfactorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body cells of
the illegitimate child and any physical residue of the long dead
parent could be resorted to.

Ong therefore categorically reinforces the basis for post-mortem

DNA testing and makes it legally possible for courts to order that
biological samples of deceased persons be taken.

In Lucas, which was a petition to establish illegitimate filiation,

the Supreme Court was confronted with the question of whether a prima
facie showing of reasonable probability of paternity is necessary before a
court can issue a DNA testing order. Of note is the fact that Section 4 of
the Rule does not mention prima facie case as a requirement. Examining
American examples, the Supreme Court held that:

In some states, to warrant the issuance of the DNA testing

order, there must be a show cause hearing wherein the applicant
must first present sufficient evidence to establish a prima facie case
or a reasonable possibility of paternity or good cause for the holding
of the test. In these states, a court order for blood testing is
considered a search, which, under their Constitutions (as in ours),
must be preceded by a finding of probable cause in order to be valid.
Hence, the requirement of a prima facie case, or reasonable
possibility, was imposed in civil actions as a counterpart of a finding
of probable cause. XXX

The same condition precedent should be applied in our

jurisdiction to protect the putative father from mere harassment
suits. Thus, during the hearing on the motion for DNA testing, the
petitioner must present prima facie evidence or establish a
reasonable possibility of paternity.

Notwithstanding these, it should be stressed that the issuance

of a DNA testing order remains discretionary upon the court. The
court may, for example, consider whether there is absolute necessity
for the DNA testing. If there is already preponderance of evidence to
establish paternity and the DNA test result would only be
corroborative, the court may, in its discretion, disallow a DNA
testing.
 Thus, in Lucas, the Supreme Court affirmed that the conduct of
DNA testing is wholly dependent upon the discretion of the courts. More
importantly, Lucas lays down the requirement that, in addition to those
already stated in Section 4 of the Rule, the applicant must present prima
facie evidence or establish a reasonable possibility of paternity.

Confidentiality

Section 11 provides that:

Sec. 11. Confidentiality. DNA profiles and all results or other

information obtained from DNA testing shall be confidential. Except
upon order of the court, a DNA profile and all results or other
information obtained from DNA testing shall only be released to any
of the following, under such terms and conditions as may be set
forth by the court:

A. Person from whom the sample was taken;

B. Lawyers representing parties in the case or action where the
DNA evidence is offered and presented or sought to be offered
and presented;
C. Lawyers of private complainants in a criminal action;
D. Duly authorized law enforcement agencies; and
E. Other persons as determined by the court.

Whoever discloses, utilizes or publishes in any form any

information concerning a DNA profile without the proper court order
shall be liable for indirect contempt of the court wherein such DNA
evidence was offered, presented or sought to be offered and
presented.

Where the person from whom the biological sample was taken
files a written verified request to the court that allowed the DNA
testing for the disclosure of the DNA profile of the person and all
results or other information obtained from the DNA testing, the same
may be disclosed to the persons named in the written verified
request.

The rule that DNA profiles and all results or other information
obtained from DNA testing shall be confidential is reasonable and
appropriate. It has been opined that the collection of DNA evidence
creates potential problems for the privacy and dignity of citizens. 92 The
collection of genetic material identifying individuals gives the state
important information that undeniably creates the potential for abuse

92
See Are Police Building a Massive DNA Database? by Scott Lemieux which appears in
www.alternet.org/story/154667/are_police_building_a_massive_dna_database (last retrieved on January 9,
2017).
such as the collection and use of personal information purposes of
harassment and blackmail.93

Privacy considerations militate against making DNA testing results

available to the general public. In the United Kingdom, for example, DNA
testing results can be considered personal data inasmuch as they can
be used to identify a living individual.94 As such, DNA testing results are
protected on the ground of privacy. Insofar as privacy of personal data is
concerned, in the Philippines, we have our own version in the form of
Republic Act No. 10173 or the Data Privacy Act of 2012. It will be noted
however that neither Republic Act No. 10173 nor its UK counterpart
specifically mentions DNA information.

Preservation of DNA evidence

Section 12 of the Rule provides in part that: (t)he trial court shall
preserve the DNA evidence in its totality, including all biological samples,
DNA profiles and results or other genetic information obtained from DNA
testing. The rule likewise allows the courts to order the appropriate
government agencies to preserve the DNA evidence for varying periods of
time, depending on the nature of the case. In criminal cases, DNA
evidence can be stored and preserved for not less than the period of time
that any person is under trial for an offense or, in case the accused is
serving sentence, until such time as the accused has served his
sentence. We will see later on how storage and preservation of DNA
became an issue in LEJANO versus PEOPLE.95

In all other cases, DNA evidence must be preserved until such time
as the decision in the case where the DNA evidence was introduced has
become final and executory.

Section 12 also provides exceptions that make it permissible the

court to allow the physical destruction of a biological sample before the
expiration of the periods set forth above. Early physical destruction of
biological samples is allowed if a court order to that effect has been
secured or the person from whom the DNA sample was obtained has
consented in writing to the disposal of the DNA evidence.

Applicability to Pending Cases

Section 13 makes the Rule applicable to cases pending at the time

of its effectivity. Exempt from such applicability would be the situation
covered by Sections 6 and 10 of the Rule where there is already a final
and executory judgment of conviction. In Section 6, post-conviction DNA
testing would be allowed only if a biological sample exists and such
sample is relevant to the case, and the testing would probably result in
93
Ibid.
94
Data Protection Act of 1998, 1998 CHAPTER 29; see also The Criminal Justice and Data Protection
(Protocol No. 36) Regulations 2014.
95
G.R. No. 176389, December 14, 2010.
the reversal or modification of the judgment of conviction. It is
worthwhile to state that, if the final and executory judgment is one of
acquittal, DNA testing to convict would run counter to the right against
double jeopardy.96

Revisiting Section 6 of the Rule, this paper will proceed to survey

cases of recent vintage and determine how DNA testing in criminal cases
affected the ultimate verdicts.

DNA Evidence and Right to Acquittal

In PEOPLE versus PASCUAL,97 a rape with homicide case, the

forensic chemist testified that based on DNA testing, she could not
determine if the woman was raped or not. She further declared that in
this case, it was possible that the stained vaginal smear prevented a
complete and good result for the DNA profiling. Upon being questioned by
the court, the forensic chemist confirmed that DNA testing on the subject
specimens was inconclusive and that the result was not good, as the
specimens submitted, i.e., the stained vaginal smear and the dirty white
panty, had already undergone previous serological analysis. Thus, would
the inconclusive result of the DNA examination entitle the accused-
appellant to an acquittal? The Supreme Court ruled in the negative and
declared that:

Here, while the DNA analysis of the victims vaginal smear

showed no complete profile of the accused-appellant, the same is not
conclusive considering that said specimen was already stained or
contaminated which, according to the forensic chemist, Aida Villoria-
Magsipoc, deters a complete and good result for DNA profiling. She
explained in her testimony that generally, with the vaginal smear,
they could see if there is a male profile in the smear. However in this
case, when they received the vaginal smear on the stained slide, the
same had already undergone serological analysis. Hence, according
to the chemist, the DNA testing conducted on the specimen subject of
this case was inconclusive. In light of this flawed procedure, we hold
that the result of the DNA examination does not entitle accused-
appellant to an acquittal.

In Pascual, the Supreme Court noted that the circumstantial

evidence presented by the prosecution against the accused-appellant was
sufficient for his conviction. This holding is in keeping with the rule that
the results of the DNA testing should be considered in the light of the
totality of the other evidence presented in the case.98

96
Article III, Section 21 of the 1987 Constitution.
97
G.R. No. 172326, January 19, 2009.
98
See Section 9(b).
 In PEOPLE versus HIPONA,99 the appellant argued that he should
only be held liable for robbery and not for the complex crime of Rape
with Homicide and Robbery, as found by the trial court. He cites the
testimony of prosecution witness Aida Viloria-Magsipoc, the DNA expert
of the National Bureau of Investigation, that she found the vaginal
smears taken from AAA to be negative of appellants DNA. The Supreme
Court dismissed his argument and ruled that:

Appellants argument fails. Presence of spermatozoa is not

essential in finding that rape was committed, the important
consideration being not the emission of semen but the penetration of
the female genitalia by the male organ. XXX (T)he post-mortem
examination of AAAs body revealed fresh hymenal lacerations
which are consistent with findings of rape.

In PEOPLE versus CABIGQUEZ,100 the Supreme Court was

consistent with its ruling in Hipona and held that:
Appellant cannot seek acquittal on the basis of the negative
result of the DNA test on the specimen conducted by the NBI.

A positive DNA match is unnecessary when the totality of the

evidence presented before the court points to no other possible
conclusion, i.e., appellant raped the private offended party. A
positive DNA match may strengthen the evidence for the prosecution,
but an inconclusive DNA test result may not be sufficient to
exculpate the accused, particularly when there is sufficient evidence
proving his guilt. Notably, neither a positive DNA match of the semen
nor the presence of spermatozoa is essential in finding that rape
was committed. The important consideration in rape cases is not the
emission of semen but the penetration of the female genitalia by the
male organ.

In PEOPLE versus LUCERO,101 another rape with homicide case,

the appellant claimed that since spermatozoa was found on the
deceased, a DNA test should have been conducted by the prosecution so
as to erase all doubts as to the identity of the perpetrator. The Supreme
Court affirmed the judgment of conviction and held that:

The DNA test is not essential, while there exists other evidence
pinning down accused-appellant as the perpetrator. Indeed, if he
honestly thought that the DNA test could have proved his innocence,
he could have asked for the conduct of said test during his trial,
instead of belatedly raising it on appeal, and attempting to dictate
upon the prosecution what course of actions it should have
undertaken.

99
G.R. No. 185709, February 18, 2010.
100
G.R. No. 185708, September 29, 2010.
101
G.R. No. 188705, March 2, 2011.
The Vizconde Case
(LEJANO vs. PEOPLE)102

The case of LEJANO versus PEOPLE is, at least to the authors

mind, important because it underscores the importance of the
preservation of DNA evidence. Likewise, Lejano presents a novel
jurisprudential idea that if the DNA of the subject specimen does not
belong to the accused, then the Accused did not commit the rape.
Finally, Lejano is a Philippine landmark because it is the first case with
DNA evidence issues where the accused was acquitted, albeit for non-
DNA reasons.

The Vizconde murder case, colloquially known as the Vizconde

massacre, was the multiple homicide of members of the Vizconde family
at their residence on June 30, 1991. in BF Homes, Paraaque. The
murders were particularly gruesome in that the matriarch of the family,
Estrellita, 49, was found to have suffered thirteen stab wounds. The elder
child, Carmela, who was 18, had suffered seventeen stab wounds.
Further medico-legal findings established that she had been raped before
she was killed. The younger sibling, Jennifer, who was 6, was found to
have been stabbed nineteen times. Lauro Vizconde, Estrellita's husband
and father of Carmela and Jennifer, was in the United States on business
when the murders took place.

Four years after the massacre, or in 1995, the NBI announced that
it had solved the crime. It presented star witness Jessica M. Alfaro, an
NBI informer, who claimed that she witnessed the crime. She pointed to
accused Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Artemio Dong
Ventura, Michael A. Gatchalian, Hospicio Pyke Fernandez, Peter Estrada,
Miguel Ging Rodriguez, and Joey Filart as culprits. She also tagged
police officer, Gerardo Biong, as an accessory after the fact. Relying
primarily on Alfaro's testimony, on August 10, 1995, the public
prosecutors filed an information for rape with homicide against Webb
and company.

On January 4, 2000, the trial court rendered judgment finding all

the accused guilty as charged and imposing on Webb, Lejano,
Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion
perpetua and on Biong, an indeterminate prison term of eleven years,
four months, and one day to twelve years. On appeal, the Court of
Appeals affirmed the trial courts decision. On motion for reconsideration
by the accused, the Court of Appeals' Special Division of five members
voted three against two to deny the motion.

On appeal to the Supreme Court, the highest Court issued a

Resolution granting the request of Webb to submit for DNA analysis the
semen specimen taken from Carmelas cadaver, which specimen was

102
G.R. No. 176389, December 14, 2010.
believed to be still under the safekeeping of the NBI. The Court granted
the request pursuant to Section 4 of the Rule on DNA Evidence.

Unfortunately, on April 27, 2010, the NBI informed the Court that
it no longer has custody of the specimen, the same having been turned
over to the trial court. The trial record shows, however, that the specimen
was not among the object evidence that the prosecution offered in
evidence in the case.

This outcome prompted accused Webb to file an urgent motion to

acquit on the ground that the governments failure to preserve such vital
evidence has resulted in the denial of his right to due process.

Webb invoked BRADY versus MARYLAND,103 a United States case,

in support of his contentions. In Brady, Maryland prosecuted Brady and
a companion, Boblit, for murder. Brady admitted being involved in the
murder, but claimed Boblit had done the actual killing. The prosecution
had withheld a written statement by Boblit confessing that he had
committed the act of killing by himself. The Court, in Brady, ruled that
withholding exculpatory evidence violates due process where the
evidence is material either to guilt or to punishment.

Webbs motion to acquit, according to the Supreme Court,

presented a threshold issue: whether or not the Court should acquit him
outright, given the governments failure to produce the semen specimen
that the NBI found on Carmelas cadaver, thus depriving him of evidence
that would prove his innocence.

The Supreme Court reversed the conviction of the accused. It held:

The medical evidence clearly established that Carmela was

raped and, consistent with this, semen specimen was found in her.
It is true that Alfaro identified Webb in her testimony as Carmelas
rapist and killer but serious questions had been raised about her
credibility. At the very least, there exists a possibility that Alfaro had
lied. On the other hand, the semen specimen taken from Carmela
cannot possibly lie. It cannot be coached or allured by a promise of
reward or financial support. If, on examination, the DNA of the
subject specimen does not belong to Webb, then he did not rape
Carmela. It is that simple. Thus, the Court would have been able to
determine that Alfaro committed perjury in saying that he did.

However, the Supreme Court said that Webb was not entitled to an
acquittal simply because of the failure of the State to produce the DNA
evidence. To quote the Supreme Court:

Still, Webb is not entitled to acquittal for the failure of the State
to produce the semen specimen at this late stage. For one thing, the
103
373 U.S. 83 (1963).
 ruling in Brady v. Maryland that he cites has long be overtaken by
the decision in Arizona v. Youngblood, 104 where the U.S. Supreme
Court held that due process does not require the State to preserve
the semen specimen although it might be useful to the accused
unless the latter is able to show bad faith on the part of the
prosecution or the police. Here, the State presented a medical expert
who testified on the existence of the specimen and Webb in fact
sought to have the same subjected to DNA test.

For, another, when Webb raised the DNA issue, the rule
governing DNA evidence did not yet exist, the country did not yet
have the technology for conducting the test, and no Philippine
precedent had as yet recognized its admissibility as evidence.
Consequently, the idea of keeping the specimen secure even after
the trial court rejected the motion for DNA testing did not come up.
Indeed, neither Webb nor his co-accused brought up the matter of
preserving the specimen in the meantime.

Parenthetically, after the trial court denied Webbs application

for DNA testing, he allowed the proceeding to move on when he had
on at least two occasions gone up to the Court of Appeals or the
Supreme Court to challenge alleged arbitrary actions taken against
him and the other accused. They raised the DNA issue before the
Court of Appeals but merely as an error committed by the trial court
in rendering its decision in the case. None of the accused filed a
motion with the appeals court to have the DNA test done pending
adjudication of their appeal. This, even when the Supreme Court
had in the meantime passed the rules allowing such test.
Considering the accuseds lack of interest in having such test done,
the State cannot be deemed put on reasonable notice that it would
be required to produce the semen specimen at some future time.

Had the case been initiated, tried and decided in the advent of the
Rule, Section 12 of course mandates preservation of DNA evidence in
criminal cases for not less than the period of time that any person is
under trial for an offense or, in case the accused is serving sentence,
until such time as the accused has served his sentence.

Lejano teaches us that, in similar cases, the accused who seeks

exculpation through DNA evidence must be vigilant to ensure its
availability at later times. In addition, failure to invoke Section 6 in a
timely manner might be construed as lack of interest in having a DNA
test done because the State cannot be deemed put on reasonable notice
that it would be required to produce the semen specimen at some future
time. Finally, DNA issues similar to Lejano ought to be raised in the
main and not merely as an error committed by the trial court in rendering
its decision in the case.

104
488 U.S. 41 (1988).
 Lejano appears to have also put a kink in the armor of positive
identification as the strongest evidence in rape cases. Here, Webbs main
defense is alibi, considered in Philippine law to be an inherently weak
defense which is viewed with suspicion and received with caution
because it can easily be fabricated.105 To establish alibi, the accused
must prove by positive, clear, and satisfactory evidence that he was
present at another place at the time of the perpetration of the crime, 106
and that it was physically impossible for him to be at the scene of the
crime.107

Nothing is more settled in criminal law jurisprudence than that

alibi cannot prevail over the positive and categorical eyewitness
testimony.108 In Lejano, the Supreme Court took once again pitted alibi
against positive eye witness identification. The Supreme Court said:

But not all denials and alibis should be regarded as

fabricated. Indeed, if the accused is truly innocent, he can have no
other defense but denial and alibi. So how can such accused
penetrate a mind that has been made cynical by the rule drilled into
his head that a defense of alibi is a hangmans noose in the face of
a witness positively swearing, I saw him do it.? Most judges believe
that such assertion automatically dooms an alibi which is so easy to
fabricate. This quick stereotype thinking, however, is distressing. For
how else can the truth that the accused is really innocent have any
chance of prevailing over such a stone-cast tenet?

There is only one way. A judge must keep an open mind. He

must guard against slipping into hasty conclusion, often arising from
a desire to quickly finish the job of deciding a case. A positive
declaration from a witness that he saw the accused commit the
crime should not automatically cancel out the accuseds claim that
he did not do it. A lying witness can make as positive an
identification as a truthful witness can. The lying witness can also
say as forthrightly and unequivocally, He did it! without blinking an
eye.

According to the Supreme Court in Lejano, to be acceptable,

positive identification must meet at least two criteria, to wit;

First, the positive identification of the offender must come from

a credible witness. She is credible who can be trusted to tell the
truth, usually based on past experiences with her. Her word has, to
one who knows her, its weight in gold.

105
PEOPLE vs. HIVELA, G.R. No. 132061, September 21, 1999.
106
PEOPLE vs. HILLADO, 367 Phil. 29 (1999).
107
PEOPLE vs. SABAN, G.R. No. 110559, November 24, 1999.
108
PEOPLE vs. TABION, G.R. No. 132715, October 20, 1999, as cited in Penaso.
 And second, the witness story of what she personally saw
must be believable, not inherently contrived. A witness who testifies
about something she never saw runs into inconsistencies and makes
bewildering claims.

The supposed eye-witness Alfaro and her testimony, which was the
main evidence used by the trial court to convict the accused, fail to meet
the above criteria, according to the Supreme Court. The Court found her
testimony inherently incredible.

After the Supreme Court handed down the reversal, Lauro

Vizconde filed a Motion for Reconsideration. The SC denied the same due
to double jeopardy considerations.109 Mr. Vizconde died on February 13,
2016 after suffering a series of heart attacks. He got his wish to be
buried next to spouse Estrellita and children Carmela and Jennifer at
Manila Memorial Park in Paraaque City. What is sad is that Mr.
Vizconde died without obtaining any measure of justice or peace of mind
after the brutal slaying of his family. Had the DNA evidence been
preserved, at least Mr. Vizconde would have had the chance to know, at
least in scientific terms, if indeed Webb raped his beloved daughter.

As for Hubert Webb, he was already 42 years old when he was

released after practically spending all the days of his youth behind bars.
As for Jessica Alfaro, the star witness discredited by the Supreme Court,
is no longer in the Philippines. After the Supreme Court doctrinally
immortalized her lies, she was reported to have fled to Canada. In March
2011, the Webb family filed a criminal case against her for false
testimony. Verily, fatetur facinus qui judicium fugit. To paraphrase, she
who flees from prosecution confesses her guilt.

The Future of the Evidence of the Future

After practically culling all available pages of jurisprudence on

DNA evidence, we now come to the conclusion that further developments
in the law on DNA as evidence might still take place.

One such development can come in the realm of paternity or

parentage suits, specifically in the matter of proving illegitimate filiation.
Under the Family Code,110 one can prove illegitimate filiation through the
record of birth appearing in the civil register or a final judgment, an
admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned, or the open
and continuous possession of the status of a legitimate child, or any
other means allowed by the Rules of Court and special laws. Would such
other means allowed by the Rules of Court and special laws include
DNA evidence? Based on jurisprudence, the answer seems to be in the

109
G.R. No. 176389, January 18, 2011.
110
Article 172; see also DE CASTRO versus ASSIDAO-DE CASTRO, G.R. No. 160172, February 13,
2008.
affirmative if we are to count the rulings in Ong, Umanito, Tecson,
Herrera and Lucas as affirmations.

However, the Supreme Court, as of the date of this paper, has yet
come up with a categorical ruling to this effect. As the law currently
stands, DNA evidence is at best secondary evidence of filiation. In one
case,111 the Supreme Court held that (w)here, instead, a claim for
recognition is predicated on other evidence merely tending to prove
paternity, i.e., outside of a record of birth, a will, a statement before a court
of record or an authentic writing, judicial action within the applicable
statute of limitations is essential in order to establish the childs
acknowledgment. This doctrine appears to put a limitation on the utility
of DNA evidence in paternity cases despite the fact that, as held in Ong,
the Supreme Court succinctly stated that (i)n case proof of filiation or
paternity would be unlikely to satisfactorily establish or would be difficult
to obtain, DNA testing, which examines genetic codes obtained from body
cells of the illegitimate child and any physical residue of the long dead
parent could be resorted to. Thus, the length of time within which the
physical residue of a long dead parent may be used may not really be
that long, as it is subject to the statute of limitations. We should take
note that, in Ong, the only limitation as to the use of DNA to establish
paternity and filiation was for as long as there exist appropriate biological
samples of his DNA.

The reliability of DNA as evidence is, at present, already beyond

reasonable contestation. If only to emphasize the scientific accuracy and
reliability of DNA evidence, perhaps, our lawmakers might consider
amending our family laws and elevate DNA evidence as primary evidence
to prove filiation and compel recognition of illegitimate children. Primary
evidence consisting in a record of birth can be fabricated. The same
applies to an admission of filiation in a public document or a private
handwritten instrument and signed by the parent concerned. Admissions
can be coerced and handwritings forged. By itself, DNA, as we all tend to
agree, does not lie. Furthermore, records of birth and written admissions
are mere documentary evidence over which DNA, as object evidence, is
superior in the hierarchy of evidence laid down in Lavapie.

Another matter for the consideration of lawmakers is the creation

of a DNA database. A DNA database would be useful for scientific (i.e.,
the analysis and prevention of diseases) and legal (i.e., genetic
fingerprinting in the detection, investigation and prosecution of crimes,
or determination of parentage in appropriate suits). It must however be
noted that, in other jurisdictions such as the US and the UK, national or
state DNA databases have met considerable challenge on constitutional
grounds. A similar challenge to the establishment of a DNA database in
the Philippines might be easier to hurdle inasmuch as our Supreme
Court had already ruled that DNA as evidence does not violate certain
111
AGUILAR vs. SIASAT, G.R. No. 200169, January 28, 2015, citing DE JESUS vs. ESTATE OF DIZON,
418 Phil. 768 (2001).
constitutional rights. Herrera and Yatar already ruled that DNA testing
does not violate the right against self-incrimination. Yatar likewise struck
down challenges to DNA testing on ex-post facto grounds. Agustin, citing
OPLE versus TORRES,112 already held that DNA testing does not violate
the right to privacy and may have also given license to compulsory DNA
testing in certain types of cases.

Along this line, perhaps legislation can be enacted to make DNA

testing mandatory in certain types of cases, similar to mandatory drug
testing. For example, rape cases with evidence of seminal discharge
would be easier to resolve if DNA testing is mandatory. DNA testing can
also be mandatory in paternity suits if only to promptly eliminate
harassment suits. This finds support in Agustin where the Supreme
Court observed that, if in a criminal case, an accused whose very life is
at stake can be compelled to submit to DNA testing, there is no reason
why it can be applied, in a civil case to determine paternity and filiation.

For as long as there are adequate safeguards to the confidentiality

of DNA information and against its misuse, there would conceivably be
no serious objections to the establishment of a DNA database and to
mandatory DNA testing in certain cases, apart from the costs of
establishing and maintaining it.

A further matter for consideration is the possibility of amending

the Rule or perhaps of promulgating implementing regulations to provide
a more detailed chain of custody requirement of biological samples
similar to Section 21 of Republic Act No. 9165. It is not far-fetched to
assume that the loss of DNA evidence in Lejano would have been avoided
had stricter handling requirements been present. What also comes to
mind is the infamous O.J. Simpson double murder case in the United
States113 which was marred by allegations of mishandling evidence,
including blood samples. A strict chain of custody requirement for DNA
evidence in the Philippines seems appropriate given these precedents.

Conclusion

Our history, as well as the jurisprudence that inevitably recounts

it, is replete with stories or cases that brought DNA into the awareness of
the Filipino people. These stories, which were recounted in this paper,
are no less instructive than that of King Solomon and the two mothers.
Philippine cases on DNA as evidence provide several insights into the
past, continue to give guidance in the present and lay the groundwork for
advances in the future. As the Supreme Court in Tijing had noted more
than fifteen years ago, courts should not hesitate to rule on the
admissibility of DNA evidence and should apply the results of science
when competently obtained in aid of situations presented. To reject said
result, said the Supreme Court, is to deny progress. The use DNA as
112
G.R. No. 127685 July 23, 1998, EN BANC.
113
PEOPLE vs. OJ SIMPSON, No. BA 097211 (Cal. Super. CL, LA County), October 3, 1995.
evidence has indeed come a long way since its initial mention in
Teehankee some twenty years ago. DNA is now deeply entrenched in our
consciousness as a nation of laws. Pardon the pun but, as a people, its
already in our DNA.