IX.
PRIVILEGE AGAINST SELF-INCRIMINATION
Art. III, sec. 17
Section 17. No person shall be compelled to be a witness
against himself.
PRIVILEGE OF RIGHT AGAINST SELF-INCRIMINATION
The right against self-incrimination has its roots in the
common law and is based on humanitarian and practical
considerations. Humanitarian because it is intended to
prevent the State, with all its coercive powers, from
extracting from the suspect testimony that may convict him.
Practical because a person subjected to such compulsion is
likely to perjure himself for his own protection.
This right is available not only criminal prosecutions
but also in all other government proceedings, including civil
actions and administrative or legislative investigations. It may
be claimed not only by the person accused of an offense but
by any witness to whom an incriminating question is
addressed.
Scope --- Applies only to compulsory testimonial self-
incrimination
1. Testimonial self-incrimination – when one is required to
answer a question which will incriminate him. This involves
the use of intelligence, or acts which are not merely
mechanical.
2. Exempts the accused from producing documents or
articles demanded of him which are incriminating.
Exceptions:
a. When the state has the right to inspect the same
under police power;
b. Corporate documents, even if the same would
incriminate the corporate officers;
c. Public documents which are matters of public
concern (CF: right of people to information)
3. It does not extend to non-testimonial acts, physical acts
like blood test to determine if the accused was infected with
a sexual disease.
EXCEPTION:
a. If the test will subject the accused to
unnecessary and existent humiliation
b. If the accused is required to submit a specimen
of his handwriting to be used as evidence against
him to a charge of forgery
4. It also exempts the accused to do a reenactment
of the crime he is being charged of.
NON-TESTIMONIAL PHYSICAL ACTS ARE ALLOWED AS
EVIDENCE SO LONG AS:
1. They are purely mechanical and does not involve the use
of intelligence or imagination
2. And if it will not subject the accused to unnecessary and
causes humiliation
 What is PROHIBITED is the use of physical or moral
compulsion to extort communication from the witness or to
otherwise elicit evidence which would not exist were it not
for the actions compelled from the witness.
 The right does NOT PROHIBIT the examination of the
body of the accused or the use of findings with respect to his
body as physical evidence. Hence, the fingerprinting of an
accused would not violate the right against self-incrimination.
However, obtaining a sample of the handwriting of the
accused would violate this right if he is charged for
falsification.
 The accused cannot be compelled to produce a private
document in his possession which might tend to incriminate
him. However, a third person in custody of the document
may be compelled to produce it.
BASES OF THIS RIGHT:
1. Principle of humanity, to prevent the extortion of
confessions under duress or compulsion;
2. Public policy, to prevent the witnesses or the accused from
committing perjury.
 At the heart of Section 17 is the right to remain silent ---
so that accused cannot be forced to testify --- in accord with
the rules of fair play.
 There is no right against incrimination per se, only self-
incrimination.
 This right guarantees that you cannot be forced to
present evidence against yourself.
 It is important for a person to know when a question is
incriminating and when it is not.
 An incriminating question is a question that leads to an
admission to the commission of a crime.
WHEN IS A QUESTION INCRIMINATING:
A question tends to incriminate when the answer of the
accused or the witness would establish a fact which would be
a necessary link in a chain of evidence to prove the
commission of a crime by the accused or the witness.
DISTINCTION BETWEEN AN ACCUSED AND AN ORDINARY
WITNESS
1. An accused can refuse to take the witness stand by
invoking the right against self-incrimination.
2. An ordinary witness cannot refuse to take the stand. He
can only refuse to answer specific questions which
would incriminate him in the commission of an offense.
WHAT ARE NOT COVERED BY THIS RIGHT:
Non-testimonial acts such as blood tests to determine if the
accused has STD. In other words, acts which do not involve
the use of intelligence or mechanical acts; unless the act is
communicative in nature, or if the test will subject the
accused to unnecessary and existent humiliation.
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NOTE:
a. Beltran vs. Samson – The accused was asked to give a
sample of his handwriting. This is not only a
mechanical act because it still needs the use of
intelligence;
b. When the accused is asked to take the lie detector test
even if the questions asked are unrelated to the
crime – not merely a mechanical act;
c. When the accused is asked to re-enact the crime, the right
attaches as this is not a mechanical act;
d. Cases where the right was not violated:
1. US vs. Tan: where the accused was examined for
gonorrhea which might have been transmitted to
the victim.
2. When the accused was asked to strip so he can be
examined for scratch marks.
3. When accused was asked to go through a pregnancy
test.
4. When one is dusted with florescent powder
5. When placed in a police line-up
WHEN THE RIGHT CAN BE IINVOKED:
1. In criminal cases
2. In administrative proceedings if the accused is liable
to a penalty (Ex. Forfeiture of property)
Note: This right can be waived, however, the SC has held that
there is no implied waiver of this right.
WHO CAN INVOKE THE RIGHT:
Only natural persons. Judicial persons are subject to the
visitorial powers of the state in order to determine
compliance with the conditions of the charter granted to
them.
SCOPE OF THE RIGHT AGAINST SELF-INCRIMINATION IN
VARIOUS PROCEEDINGS:
1. In CRIMINAL CASES, this is a prohibition against inquiry. It
means that the accused cannot be compelled to take the
witness stand. But if you are a witness and not the accused,
the right extends only to refusal to answer incriminating
questions. The witness has no right to refuse to take the
witness stand.
o Editor’s Note: Under the rules on
evidence, there can be waiver if the accused takes the
witness stand. But he can refuse to answer questions
which are not related to his direct testimony.
MEANING:
 SCOPE: absolute/total prohibition of inquiry
(Chavez Case).
 The accused cannot be forced to take the witness
stand and testify. I.
 Accused can refuse to answer questions at the
outset.
 Witnesses in a criminal case can invoke this right
optionally only --- right is not absolute for them ---
otherwise there would be a violation of accused’s right to
compulsory process.
 If the accused chooses to testify, he is deemed to
have waived the protection of this right.
 Waiver is only to the extent of the matter he
testified to --- problematic --- waiver as to matter x:
accused should answer questions only as to that matter,
if he is asked about other matters, he can invoke right.
2. In CIVIL CASES, the right is just an option to refuse since
there is no accused in civil cases. Anybody can be called to
the witness stand, the only thing they have is the option to
refuse questions which would tend to incriminate them.
MEANING:
 The right is only an option to refuse to answer an
incriminating question at the moment it is asked.
 Defendant must take the witness stand and wait for
the incriminating question to be asked before he can
refuse to answer it otherwise he can be jailed for
contempt --- thus the right is not absolute in civil cases.
3. In ADMINISTRATIVE PROCEEDINGS, same as rule in civil
cases. In short, as a general rule, proceedings other
than criminal, the right against self incrimination is
merely an option to refuse to answer incriminating
questions.
Exceptions in administrative proceedings:
a. PASCUAL vs. BOARD – An administrative
proceeding against a doctor for malpractice. The SC
ruled that he cannot be forced to take the witness
stand without his consent since the penalty is so
severe;
b. CABAL vs. CAPUNAN – when the penalty involves
forfeiture of one’s property.
MEANING:
 The same principle for civil cases applies to
administrative proceedings.
 Right can be invoked only in cases when the
proceeding is penal in nature.
4. In LEGISLATIVE PROCEEDINGS – one can refuse to answer
incriminating questions.
 The principles for civil and administrative
proceedings apply.
Q: WHEN IS A QUESTION CONSIDERED INCRIMINATING?
A: When the question tends to expose the person to the
accusation of a crime or tend to establish guilt against him.
TESTIMONIAL/NON-TESTIMONIAL
ACCUSED IS EXEMPT FROM TESTIFYING
 This right covers only testimonial rights except:
1. acts which require the use of
intelligence;
example: writing your signature, copying certain
words
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 2. acts that communicate in nature.
II. THE ACCUSED IS EXEMPT FROM PRODUCING
DOCUMENTS
 EXCEPTIONS:
1. Corporation or their officers (PASECO
Case);
2. Public officials (ALMONTE vs.
VASQUEZ).
 Corporations are only creature of the state, they
cannot resist the mandate of the state if they should be
asked to produce certain documents.
 Corporation officers cannot invoke this right when
asked to produce documents of the corporation which may
incriminate them as well because they are only acting in
behalf of the corporation --- it is not self-incrimination
because it is the corporation that is incriminated.
 Public officials cannot invoke section 17 because
the public has the right to information.
Q: WHAT IF A LIE DETECTOR IS USED?
A: No jurisprudence yet on this.
Atty. DELA BANDA: it is safe to assume that it would
violate section 17 because answering the questions
would require the use of intelligence
Q: WHAT ABOUT DRUG-TESTING?
A: It is non-testimonial because the medical technologist will
only get your urine sample.
DOJ:
a. employees cannot be compelled to take it ---
because it would be a compulsion on their part;
b. people applying for a job in the government can be
required to be tested --- if they refuse, the choice is
still theirs, there is no compulsion
Q: WHAT ABOUT SPERM TESTING?
A: Atty. DELA BANDA: it might fall in the exception where
section 17 applies because it requires the use of intelligence -
-- imagination! 
GALMAN CASE
 IMMUNITY IS THE ONLY WAY TO DEFEAT THE
RIGHT GIVEN BY SECTION 17.
1. USE AND FRUIT IMMUNITY – Prohibits the use of the
testimony and its fruits in any manner in connection with the
criminal prosecution of the witness. It merely grants the
witness immunity fro use of any statement given before the
court, but not immunity from prosecution by reason of or on
the basis thereof.
Ex. A, B, C, D are the accused. D is the state witness.
Now D's testimony cannot be used in any manner in
connection with the criminal prosecution in that
particular case. His testimony cannot be used to
convict him in that particular case. But this does not
mean that he cannot be convicted, his testimony
cannot be used to as evidence against him in that
particular case.
2. TRANSACTIONAL IMMUNITY – makes the witness immune
from criminal prosecution for the offense for which his
compelled testimony relates. So this is immunity from
prosecution.
CASES: RIGHT AGAINST SELF-INCRIMINATION
IN RE: SABIO
504 SCRA 704
Facts: Senator Miriam Defensor Santiago introduced Senate
Resolution 455, "directing an inquiry in aid of legislation on
the anomalous losses incurred by the Philippines Overseas
Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and
PHILCOMSAT Holdings Corporation (PHC) due to the alleged
improprieties in their operations by their respective Board of
Directors. Chief of Staff Inocencio, under the authority of
Senator Gordon, wrote Chairman Sabio of the PCGG inviting
him to be one of the resource persons in the public meeting
jointly conducted by the Committee on Government
Corporations and Public Enterprises and Committee on Public
Services. The purpose of the public meeting was to deliberate
on Senate Res. No. 455.
Chairman Sabio declined the invitation because of
prior commitment and at the same time, he invoked Section
4(b) of E.O. No. 1 which provides that “No member or staff of
the Commission shall be required to testify or produce
evidence in any judicial, legislative or administrative
proceeding concerning matters within its official cognizance.”
Several notices by virtue of a subpoena ad testificandum was
issued to the petitioner-directors but still, they did not
comply with the notice.
Issue: WON the subpoenae violated petitioner-directors right
againt self-incrimination.
Ruling: The subpoenae did not violate their right against self-
incrimination. It must be emphasized that this right maybe
invoked by the said directors and officers of Philcomsat
Holdings Corporation only when the incriminating question is
being asked, since they have no way of knowing in advance
the nature or effect of the questions to be asked of them.
That this right may possibly be violated or abused is no
ground for denying respondent Senate Committees their
power of inquiry. The consolation is that when this power is
abused, such issue may be presented before the courts. At
this juncture, what is important is that respondent Senate
Committees have sufficient Rules to guide them when the
right against self-incrimination is invoked. Sec. 19 reads:
Privilege Against Self-Incrimination - A witness can invoke his
right against self-incrimination only when a question tends to
elicit an answer that will incriminate him is propounded to
him. However, he may offer to answer any question in an
executive session. No person can refuse to testify or be
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placed under oath or affirmation or answer questions before
an incriminatory question is asked. His invocation of such
right does not by itself excuse him from his duty to give
testimony. In such a case, the Committee, by a majority vote
of the members present there being a quorum, shall
determine whether the right has been properly invoked. If
the Committee decides otherwise, it shall resume its
investigation and the question or questions previously
refused to be answered shall be repeated to the witness. If
the latter continues to refuse to answer the question, the
Committee may punish him for contempt for contumacious
conduct.
The same directors and officers contend that the
Senate is barred from inquiring into the same issues being
litigated before the CA and the Sandiganbayan. Suffice it to
state that the Senate Rules of Procedure Governing Inquiries
in Aid of Legislation provide that the filing or pendency of any
prosecution of criminal or administrative action should not
stop or abate any inquiry to carry out a legislative purpose. So
long as the constitutional rights of witnesses, like Chairman
Sabio and his Commissioners, will be respected by
respondent Senate Committees, it is their duty to cooperate
with them in their efforts to obtain the facts needed for
intelligent legislative action. The unremitting obligation of
every citizen is to respond to subpoenae, to respect the
dignity of the Congress and its Committees, and to testify
fully with respect to matters within the realm of proper
investigation.
SJS vs. DANGEROUS DRUGS BOARD (G.R. No. 157870)
NOVEMBER 3, 2008
Facts: Section 36 of RA 9165 (Comprehensive Dangerous
Drugs Act of 2002) provides that Authorized drug testing shall
be done by any government forensic laboratories or by any of
the drug testing laboratories accredited and monitored by
the DOH to safeguard the quality of the test results. The drug
testing shall employ, among others, two (2) testing methods,
the screening test which will determine the positive result as
well as the type of drug used and the confirmatory test which
will confirm a positive screening test. The following shall be
subjected to undergo drug testing: (c) Students of secondary
and tertiary schools; (d) Officers and employees of public and
private office; (f) All persons charged before the prosecutor's
office with a criminal offense having an imposable penalty of
imprisonment of not less than six years and one day shall
undergo a mandatory drug test; and (g) All candidates for
public office whether appointed or elected both in the
national or local government shall undergo a mandatory drug
test.
Petitioner Laserna, Jr., as citizen and taxpayer,
seeks in his Petition for Certiorari and Prohibition that the
aforementioned provision of RA9165 be struck down as
unconstitutional for infringing on the constitutional right to
privacy, the right against unreasonable search and seizure,
and the right against self - incrimination, and for being
contrary to the due process and equal protection guarantees.
On the other hand, Social Justice Society, a
registered political party, seeks to prohibit the Dangerous
Drugs Board and the Philippine Drug Enforcement Agency
from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA
9165 on the ground that they are constitutionally infirm. For
one, the provisions constitute undue delegation of legislative
power when they give unbridled discretion to schools and
employers to determine the manner of drug testing. For
another, the provisions trench in the equal protection clause
inasmuch as they can be used to harass a student or an
employee deemed undesirable. And for a third, a person's
constitutional right against unreasonable searches is also
breached by said provisions.
Issue: WON the aforesaid provision violated the
constitutional right against self-incrimination.
Ruling: Unlike the situation covered by Sec. 36(c) and (d) of
RA 9165, the Court finds no valid justification for mandatory
drug testing for persons accused of crimes. In the case of
students, the constitutional viability of the mandatory,
random, and suspicionless drug testing for students
emanates primarily from the waiver by the students of their
right to privacy when they seek entry to the school, and from
their voluntarily submitting their persons to the parental
authority of school authorities. In the case of private and
public employees, the constitutional soundness of the
mandatory, random, and suspicionless drug testing proceeds
from the reasonableness of the drug test policy and
requirement. However, the SC find the situation entirely
different in the case of persons charged before the public
prosecutor's office with criminal offenses punishable with six
(6) years and one (1) day imprisonment. The operative
concepts in the mandatory drug testing are "randomness"
and "suspicionless." In the case of persons charged with a
crime before the prosecutor's office, a mandatory drug
testing can never be random or suspicionless. The ideas of
randomness and being suspicionless are antithetical to their
being made defendants in a criminal complaint. They are not
randomly picked; neither are they beyond suspicion. When
persons suspected of committing a crime are charged, they
are singled out and are impleaded against their will. The
persons thus charged, by the bare fact of being haled before
the prosecutor's office and peaceably submitting themselves
to drug testing, if that be the case, do not necessarily consent
to the procedure, let alone waive their right to privacy. To
impose mandatory drug testing on the accused is a blatant
attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 9165.
Drug testing in this case would violate a persons' right to
privacy. Worse still, the accused persons are veritably forced
to incriminate themselves. Thus, in this case, Section 36 (f) of
RA 9165 was declared unconstitutional and Section © and (d)
were declared constitutional..
PEOPLE VS. GAMIH 621 SCRA 159 (2010)
LUMANOG VS. PEOPLE 630 SCRA 42 (2010)
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2. In what proceedings available

PASCUAL VS. BOARD OF MEDICAL EXAMINERS 28 SCRA 344

(1969)
GALMAN VS. PAMARAN, 138 SCRA 274 (1985)
Compare PEOPLE VS. AYSON, 175 SCRA 216 (1989)
Legislative Inquiry – IN RE SABIO, 504 SCRA 704 (2006)

3. “Use Immunity” vs. “Transactional Immunity”

a. Transactional Immunity
Art. XIII, sec. 18(8)
Rep. Act No. 1379, sec. 8
b. Use and Fruit Immunity

GALMAN VS. PAMARAN, 138 SCRA 274 (185)

P.D. No. 1886

Note – Executive Order No. 1 – “The Truth Commission”

4. Exclusionary rule

Art. III, sec. 12 (3)

5. Effect of denial of privileges by court

CHAVEZ vs. CA

Facts: The accused was charged with theft of a motor vehicle.

During the trial the prosecutor called on the accused as a
witness. The lawyer objected but was overruled. According to
the judge, you only object when the statement is under
scrutiny for trial. The accused was convicted and as stated in
the decision, the accused was described as the star witness
against himself.

Ruling: The court held that in criminal cases the accused may
refuse altogether to take the witness stand and answer all
questions. The accused can invoke Sec. 17. Neither a witness
can be compelled to take the witness stand. In contrary to
the theory of the judge, accused need wait until the
incriminating question is asked. He can refuse altogether to
take the witness stand.

 This is called a PROHIBITION OF INQUIRY wherein a

witness can refuse altogether to take the witness stand or to
answer all questions whether incriminating or not.
 The court also stated that it should be only if the
accused is allowed to take the stand since the purpose of the
fiscal is mainly to incriminate him. This would be contrary to
the rights of the accused.

NOTE: The right can also be waived if the accused willingly

takes the stand.