What happens when prosecution witnesses retract their affidavits?

It isn't over until it's finally over. The DOJ and the prosecution teams against both Congressman Arnie Teves and Senator Leila de Lima aren’t perturbed in the face of the retractions of witnesses for the prosecution. At least, that’s what they’re saying. Just because witnesses turn hostile doesn’t mean the accused should immediately be acquitted.

In the case of People of the Philippines vs. Police Superintendent Artemio Lamsen et al, GR No. 198338, decided on November 13, 2013, the High Court declared: "Mere retraction by a prosecution witness does not necessarily vitiate the original testimony if credible. The rule is settled that in cases where previous testimony is retracted and a subsequent different, if not contrary, testimony is made by the same witness, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence. A testimony solemnly given in court should not be set aside and disregarded lightly, and before this can be done, both the previous testimony and the subsequent one should be carefully compared and juxtaposed, the circumstances under which each was made carefully and keenly scrutinized and the reasons or motives for the change, discriminatingly analyzed." This was written by associate justice of the Supreme Court, Estela Perlas-Bernabe, and concurred in by the other justices.

The highest court said: "The unreliable character of the affidavit of recantation executed by a complaining witness is also shown by the incredulity of the fact that after going through the burdensome process of reporting to and/or having the accused arrested by the law enforcers, executing a criminal complaint-affidavit against the accused, attending trial and testifying against the accused, the said complaining witness would later on declare that all the foregoing is actually a farce and the truth is now what he says it to be in his affidavit of recantation. And in situations, like the instant case, where testimony is recanted by an affidavit subsequently executed by the recanting witness, we are properly guided by the well-settled rules that an affidavit is hearsay unless the affiant is presented on the witness stand and that affidavits taken ex-parte are generally considered inferior to the testimony given in open court."

Thus the recanting witnesses should testify and explain their change of heart. If they allege torture, they should prove their allegations. If they allege a superior force, they should substantiate their averment. If they are telling lies, they can be prosecuted for perjury and be convicted. In another case entitled People vs. Mr. X (disguised by Chief Justice Diosdado Peralta to protect reputation) in GR No. 236562, September 22, 2020, the High Court said that courts are wary about recantations. They are usually results of bribery or force, intimidation, coercion, and deceit. Peralta, a seasoned trial judge and my fellow professor of Law in UST said: "As a rule, recantation is viewed with disfavor firstly because the recantation of her testimony by a vital witness of the State like AAA is exceedingly unreliable, and secondly because there is always the possibility that such recantation may later be repudiated."

The Supreme Court thus said through the pen of Chief Justice Peralta: "Indeed, to disregard testimony solemnly given in court simply because the witness recants it ignores the possibility that intimidation or monetary considerations may have caused the recantation.”

Chief Justice Peralta then concluded: "The recantation, like any other testimony, is subject to the test of credibility based on the relevant circumstances, including the demeanor of the recanting witness on the stand. In that respect, the finding of the trial court on the credibility of witnesses is entitled to great weight on appeal unless cogent reasons necessitate its re-examination, the reason being that the trial court is in a better position to hear first-hand and observe the deportment, conduct and attitude of the witnesses."

To my mind, in the case of Senator De Lima, the recantation has passed the test of the court. But in the case of Congressman Teves, Atty. Ferdinand Topacio, Teves' lawyer who was my former student in UE Law, has a mountain of hurdles to surmount. The case is not yet over and many things can happen. The recanting witnesses can recant their recantation, until they impeach their own testimonies and be condemned to suffer from the Latin maxim: "Falsus in unos, falsus in omnibus". Falsehood in one, falsehood in all. They can go to jail for perjury. They are just playing games with the rule of law and they can be held in direct contempt of court.