If you go by Twitter and Facebook, you’d think that half of Filipinos were either detectives or lawyers—or both.
And who can blame them? Three deaths, 12 days apart, made headlines and shook the country. Ten days before Christmas we watched a video showing the shooting of a mother and her son by an off-duty policeman; and on the first day of the new year, a flight attendant was discovered dead in a hotel bathtub.
One case seems clear-cut; the other has become murky with changing pronouncements by the police, her close friends and now rape suspects being gay, and the insistence of a grieving mother that her daughter was raped and killed despite the initial autopsy of aortic aneurysm.
In the second case, pubic opinion is divided about the suspects—young, gay men living a life of travel, parties and friends. Now their lives are close to ruin and their friend’s life has ended.
We asked Atty. Theodore “Ted” Te—litigator, advocate, human rights lawyer and former spokesperson of the Supreme Court—about the rights of suspects and persons of interest in an ongoing police investigation.
Ted is a full-time litigator, criminal defense lawyer, and law professor. He is a member of the Free Legal Assistance Group (FLAG), the oldest human rights lawyers’ network in the country, which he joined as soon as he graduated from the UP College of Law in 1990.
He has argued before the Supreme Court on seven occasions on different issues, the latest in January 2019 against the third extension of martial law in Mindanao. He has spoken in domestic and international gatherings advocating for the abolition of capital punishment as well as freedom of the press.
After he left the Supreme Court as spokesperson, he returned to academic life, teaching at the UP College of Law, Ateneo de Manila University School of Law, and Dela Salle University College of Law.
Apart from his law degree, he has a psychology degree from UP and a Masters of Law from Columbia University in New York City. He has taught taught various subjects including criminal law, all subjects in remedial law, labor law, and was later director of the UP Office of Legal Aid.
Rape is defined very clearly—it is either through sexual intercourse without consent or sexual assault through insertion of an object into the genitalia. Being present without participation in any way does not and cannot implicate anyone.
He has published legal articles on capital punishment, criminal procedure, and transitional justice. He pioneered an ebook on legal and judicial forms, and edited one chapter (on rape) of a legal reference in capital cases in the Philippines. He is also a committed Catholic.
Here’s our Q&A with him.
When you’re present in a scene where a death occurs, does that make you automatically a suspect even if autopsy finds that it was a natural death?
No. There are (should be) classifications of persons in relation to a possible crime scene—I say possible because until there is a thorough investigation done, it would be premature to conclude that a crime has been committed.
You put it rightly—“a scene where a death occurs,” which is a factual description as opposed to “crime scene,” where an initial characterization has already been made. Until a preliminary determination that a crime has been committed based on some modicum of evidence has been made then it is premature to have suspects. In a death scene, there are no suspects; but in a possible homicide or murder scene, there will be suspects.
Is there a difference between being a “person of interest” and a suspect?
Yes. A suspect is one whom the police have identified as having possible complicity or participation based on some modicum of evidence; a person of interest is someone the police think may have relevance to the case—possibly as a witness, an informant, or maybe a suspect.
The main difference is in the consequences—a person of interest is not being investigated for possible complicity in a crime and so can be questioned without being informed of his rights under Article III, sec. 12 of the 1987 Constitution; a suspect cannot be questioned without being informed of his rights under Article III, sec. 12 and any answers obtained in violation of that provision would be inadmissible in evidence against him under the exclusionary rule in Article III, sec. 17 of the 1987 Constitution.
Was the PNP correct to file a provisional charge of rape-homicide in the Christine Dacera case even when the autopsy was aortic aneurysm?
No, there is no such thing as a provisional charge. It is an admission that they don’t have a clue.
If you say yes to an invitation to police interrogation, you cannot be detained; at any time you are free to leave.
Can you refuse a police invitation for questioning?
Yes, you can refuse an invitation unless you are told that it is an arrest, in which case you must be informed of the basis and cause for the arrest. Once an invitation cannot be refused, then it is now an arrest, in which case the rights of a person under custodial investigation must be accorded (these are the rights under Art. III, sec. 12).
If you do go to the police station for questioning, can they detain you without a warrant of arrest? For how long?
If you say yes to an invitation, you cannot be detained; at any time you are free to leave. Once you are not allowed to leave, then it amounts to an arrest and if there is no basis for the arrest, it also now becomes a felony under Article 124 of the Revised Penal Code (Arbitrary Detention).
Will a person be charged with rape even if they were not the one who did the rape but were in the same room? What if they were in a separate room and had no knowledge that a rape was happening?
No. Rape is defined very clearly—it is either through sexual intercourse without consent or sexual assault through insertion of an object into the genitalia. Being present without participation in any way does not and cannot implicate anyone.
Do the answers above apply to a killing too?
Same. A killing is a felony and requires intent to kill, which must be proven.
There is no such thing as a provisional charge. It is an admission that they don’t have a clue.
What is your advice to people who were present when a crime occurred but had no direct involvement in it?
If they are being implicated, get a lawyer and follow the advice of the lawyer. Do not presume that questions asked are innocent. The purpose of ANY police interrogation is to get the person to incriminate him/herself. Do not give interviews.
Any thoughts on PNP Chief Debold Sinas declaring that the case was solved right away?
Wrong, by any standard.
Can a person sue the police for damages if they publicly declare or imply that you are guilty of a crime—and then they don’t charge you at all, or you’re proven innocent in court?
Yes; at the very least, that’s defamation; there may even be grounds for malicious prosecution.
Can you sue an establishment where the commission of a crime occurred—if you were not related to the victim but were treated as a suspect and then subsequently lost your job, etc.?
No, unless the establishment committed defamation.
Can you sue the victim’s family or friends if they accuse you publicly of being a rapist and/or murderer and you’re later proven innocent? Can you sue strangers who make those same comments on social media?
Same answer. Although I would caution against using libel or cyber libel but that’s a personal viewpoint—I am absolutely opposed to libel and cyber libel being criminalized.
Get a lawyer. Do not presume that questions asked (by the police) are innocent. The purpose of ANY police interrogation is to get the person to incriminate him/herself. Do not give interviews.
A lot of people were outraged that former policeman Jonel Nuezca pleaded not guilty at his arraignment, given there was clear video evidence that he killed the two victims. Can you explain to us the legal issues and can he have the video evidence thrown out?
The constitution guarantees him that and that is his right—to be presumed innocent. It is the prosecution that has the burden of proof and if the burden is not discharged, then he is entitled to the presumption of innocence and must be acquitted.
There is nothing wrong with what he did—it is his constitutional right and fairness and due process require that we recognize the right, regardless of the person or personality involved. Which makes any investigation and case build up by the police and the prosecution very important and why premature disclosure (especially to media) should not be done because it telegraphs the punches so to speak.
Even with a video, there shouldn’t be shortcuts by the prosecution—there is a process under the law for authenticating and presenting the video which the prosecutors are well aware of.