What is the right against self-incrimination?

No person shall be compelled to be a witness against himself. (Art. III, Sec. 17, 1987 Philippine
Constitution)

What is the right against self-incrimination?

A person’s right against self-incrimination is enshrined in Section 17, Article III of the 1987 Constitution
which reads: “No person shall be compelled to be a witness against himself.”

The right against self-incrimination is accorded to every person who gives evidence, whether voluntary
or under compulsion of subpoena, in any civil, criminal or administrative proceeding. The right is not to
be compelled to be a witness against himself. It secures to a witness, whether he be a party or not, the
right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a
tendency to incriminate him for some crime. (Rosete vs. Lim, G.R. No. 136051, June 8, 2006)

When is this 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. (Nachura, Outline Reviewer in
Political Law)

Who may claim the right against self-incrimination?

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. (Nachura, Outline Reviewer in Political Law)

When can the the right against self-incrimination be invoked?

1. Ordinary witness - The right can be claimed only when the specific question, incriminatory in
character, is actually put to the witness. It cannot be claimed at any other time. It does not give a
witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or
to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take
the stand, be sworn and answer questions. It is only when a particular question is addressed to which
may incriminate himself for some offense that he may refuse to answer on the strength of the
constitutional guaranty. (Rosete vs. Lim)

2. Accused in a criminal case - An accused occupies a different tier of protection from an ordinary
witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the
privilege as each question requiring an incriminating answer is shot at him, an accused may altogether
refuse to take the witness stand and refuse to answer any and all questions. For, in reality, the purpose
of calling an accused as a witness for the People would be to incriminate him. The rule positively intends
to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing
evidence necessary for his conviction." This rule may apply even to a co-defendant in a joint trial.
(Chavez vs. CA, G.R. No. L-29169, August 19, 1968)

The right of the defendant in a criminal case “to be exempt from being a witness against himself”
signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is
the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other
process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a
co-accused, or even for himself. (Rosete vs. Lim)

The same principle shall 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 or the forfeiture of property. (Nachura, Outline Reviewer in Political Law)
It is clear, therefore, that only an accused in a criminal case can refuse to take the witness stand. The
right to refuse to take the stand does not generally apply to parties in administrative cases or
proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded.
This Court applied the exception – a party who is not an accused in a criminal case is allowed not to take
the witness stand – in administrative cases/proceedings that partook of the nature of a criminal
proceeding or analogous to a criminal proceeding. It is likewise the opinion of the Court that said
exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in
nature, the party thereto can altogether decline to take the witness stand. It is not the character of the
suit involved but the nature of the proceedings that controls. (Rosete vs. Lim)

What is the scope of the right against self-incrimination?

● The kernel of the right is not against all compulsion, but testimonial compulsion only (Alih vs. Castro,
151 SCRA 279).

The right against self-incrimination is simply against the legal process of extracting from the lips of the
accused an admission of his guilt. It does not apply where the evidence sought to be excluded is not an
incriminating statement but an object evidence. (People vs. Malimit, People v. Malimit, 264 SCRA 167)

Thus, substance emitted from the body of the accused may be received in evidence. Hair samples taken
from the accused may be admitted in evidence against him [People v. Rondero, G.R. No. 125687,
December 9,1999] Evidence involving deoxyribonucleic acid (DNA) is likewise admissible, and in People
v. Vallejo, G.R. No. 144656, May 9, 2002, and in People v. Yatar, G.R. No. 150224, May 19, 2004, was
utilized to affirm the death sentence on the accused found guilty of child-rape with homicide.

A person may be compelled to submit to fingerprinting, photographing and paraffin testing, as there is
no testimonial compulsion involved. In People v. Gallarde, G.R. No. 133025, February 27, 2000, where
immediately after the incident, the policemen took pictures of the accused without the presence of
counsel, it was held that there was no violation. In fact, the accused may be compelled to submit to a
physical examination to determine his involvement in an offense of which he is accused. In U.S. v. Tan
Teng, 23 Phil 145, a person charged with rape was ordered examined for gonorrhea, which might have
been transmitted to the victim; in Villaflor v. Summers, 41 Phil 62, a woman accused of adultery was
subjected to medical examination to determine if she was pregnant. In People v. Tranca, 35 SCRA 455,
the accused was made to undergo ultra-violet ray examination to determine the presence of fluorescent
powder dusted on the money used in a buy-bust operation. (Nachura, Outline Reviewer in Political Law)

● The prohibition extends to the compulsion for the production of documents, papers and chattels that
may be used as evidence against the witness, except where the State has a right to inspect the same
such as the books of accounts of corporations, under the police or taxing power. Thus, in Regala v.
Sandiganbayan, 262 SCRA 122, the Supreme Court said that the demand of the PCGG that the
petitioners — lawyers and co-accused — would be excluded from the case if they revealed the identity
of their clients and submit the documents related to the suspected transactions, violated the right of the
petitioners against self-incrimination. They did not have to wait until they were called to testify; they
could raise the objection because they were not merely witnesses; they were parties in the case for the
recovery of ill-gotten wealth. However, in Almonte v. Vasquez, supra., it was held that where the
subpoena duces tecum is directed to government officials required to produce official documents/public
records which are in their possession or custody, then there is no violation of the right against self
incrimination. (Nachura, Outline Reviewer in Political Law)

● The privilege also protects the accused against any attempt to compel him to furnish a specimen of his
handwriting in connection with a prosecution for falsification

Writing is something more than moving the body, or the hand, or the fingers; writing is not a purely
mechanical act, because it requires the application of intelligence and attention; and in the case at bar
writing means that the petitioner herein is to furnish a means to determine whether or not he is the
falsifier.

For the purposes of the constitutional privilege, there is a similarity between one who is compelled to
produce a document, and one who is compelled to furnish a specimen of his handwriting, for in both
cases, the witness is required to furnish evidence against himself.

And we say that the present case is more serious than that of compelling the production of documents
or chattels, because here the witness is compelled to write and create, by means of the act of writing,
evidence which does not exist, and which may identify him as the falsifier. [Beltran v. Samson, 53 Phil
570].
May the right against self-incrimination be waived?

Yes. The right against self-incrimination may be waived, either directly or by a failure to invoke it,
provided the waiver is certain and unequivocal and intelligently made. Thus, the accused who takes the
witness stand voluntarily and offers testimony in his behalf may be cross-examined and asked
incriminating questions on any matter he testified to on direct examination. (Nachura, Outline Reviewer
in Political Law)