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)