RIGHT AGAINST SELF INCRIMINATION- MAD
RIGHT AGAINST SELF INCRIMINATION  In Pascual v. Board of Medical Examiners, the same principle shall
Sec. 17, Art. III: “No person shall be compelled to be a witness against
himself.
When is the right available?
 The right is available not only in criminal prosecutions but also in all
other government proceedings, including civil actions and
administrative or legislative investigations that possess a criminal or
penal aspect—but not to private investigations done by private
individual (BPI vs. CASA, 430 SCRA 261).
 It may be claimed not only by the accused but also by any witness to
whom a question calling for an incriminating answer is addressed.
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.
When is the right against self‐incrimination applied?
 The privilege against self‐incrimination can be claimed only when the
specific question, incriminatory in character, is actually addressed to
the witness. It cannot be claimed at any other time. It does not give a
witness the right to disregard a subpoena, to decline to appear before
the court at the time appointed.
 The privilege against self‐incrimination is not self‐executing or
automatically operational. It must be claimed. It follows that the right
may be waived, expressly, or impliedly, as by a failure to claim it at the
appropriate time.
Can an accused or respondent be compelled to take witness stand?
 In Chavez v. CA, in criminal prosecution, the accused may not be
compelled to take the witness stand, on the reasonable assumption that
the purpose of the interrogation will be to incriminate him.
apply to the respondent in an administrative proceeding where the
respondent may be subjected to sanctions of a penal character, such as
the cancellation of his license to practice medicine.
What is the difference between an accused and an ordinary witness with
respect to the right against self‐incrimination?
Accused Ordinary witness
Can refuse to take the witness stand Cannot refuse to take the witness
altogether by invoking the right stand; can only refuse to answer
against self‐incrimination specific questions which would
incriminate him in the commission of
an offense
What is the scope of the Privilege against Self‐incrimination?
 This constitutional privilege has been defined as a protection against
testimonial compulsion, but this has since been extended to any
evidence “communicative in nature” acquired under circumstances of
duress.
 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.
Note: It applies only to testimonial compulsion and production of
documents, papers and chattels in court except when books of account
are to be examined in the exercise of police power and the power of
taxation.
o In People v. Gallarde, person may be compelled to submit to
fingerprinting, photographing and paraffin testing, as there is no
testimonial compulsion involved.
o In U.S. v. Tan Teng, a person charged with rape was ordered
examined for gonorrhea, which might have been transmitted to the
victim.
o However, in Beltran v. Samson, an order requiring the accused to
write so that his handwriting may be validated with the
documentary evidence is covered by the constitutional
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proscription against self‐incrimination. Since the provision and intelligently made. Thus, the accused who takes the witness stand
prohibits compulsory testimonial incrimination, it does not matter voluntarily and offers testimony in his behalf may be cross-examined
whether the testimony is taken by oral or written. and asked incriminating questions on any matter he testified to on
direct examination.
Do re‐enactments violate a person's right against self‐incrimination?
What is the effect of denial of privilege against self‐incrimination?
 Yes. A person who is made to re‐enact a crime may rightfully invoke his
privilege against self‐incrimination, because by his conduct of acting  In Chavez v. CA, when the privilege against self‐incrimination is
out how the crime was supposedly committed, he thereby practically violated outside of court, say, by the police, then the testimony, as
confesses his guilt by action which is as eloquent, if not more so, than already noted, is not admissible under the exclusionary rule. When the
words. privilege is violated by the court itself, that is, by the judge, the court is
ousted of its jurisdiction, all its proceedings are null and void, and it is
Distinguish Derivative‐Use Immunity from Transactional Immunity. as if no judgment has been rendered.
Derivative-use Immunity Transactional Immunity Additional Notes:
- Whatever is elicited from the - Witness is immunized from
witness, as well as any other prosecution in relation to the Q: R.A. 9165 requires mandatory drug testing for persons charged before the
evidence which the investigators crime in which he was prosecutor’s office with criminal offenses punishable with 6 years and 1 day
were led to because of the compelled to provide testimony imprisonment. Petitioner SJS questions the constitutionality of the law on the
testimony given, would not be - Granted by the Commission on ground that it violates the rights to privacy and against self‐incrimination of an
admissible in evidence against Human Rights to any person accused. Decide.
the witness whose testimony or whose
possession of documents or A: The Court finds the situation entirely different in the case of persons charged
other evidence is necessary or before the public prosecutor’s office with criminal offenses punishable with
convenient to determine the imprisonment. The operative concepts in the mandatory drug testing are
truth in any investigation “randomness” and “suspicionless”. In the case of persons charged with a crime
conducted by it or under its
before the prosecutor’s office, a mandatory drug testing can never be random or
authority, which makes the
suspicionless. The ideas of randomness and being suspicionless are antithetical
witness immune from criminal
prosecution for an offense to to their being made defendants in a criminal complaint. They are not randomly
which his compelled testimony picked; neither are they beyond suspicion. When persons suspected of
relates. committing a crime are charged, they are singled out and are impleaded against
 In Mapa v. Sandiganbayan, it was held that these immunity statutes their will. The persons thus charged, by the bare fact of being haled before the
are not a bonanza from government. Those given this privilege paid a prosecutor’s office and peaceably submitting themselves to drug testing, if that
high price for it; the surrender of their right to remain silent. These be the case, do not necessarily consent to the procedure, let alone waive their
laws should, therefore, be given a liberal interpretation. 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
Can this right may be waived? the stated objectives of R.A. 9165. Drug testing in this case would violate a
person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution.
 The right against self-incrimination may be waived, either directly or by
a failure to invoke it, provided the waiver is certain and unequivocal
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Worse still, the accused persons are veritably forced to incriminate themselves.
(SJS v. DDB, G.R. No. 157870, Nov. 3, 2008)