minor witnesses in search of a house

8/4/2019 Minor Witnesses in Search of a House

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...unravelling the mystery behind Rule 126Section 8...


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Rule 126 Section 8 provides that: No search ofa house, room, or any other premises shall bemade except in the presence of the lawful

occupant thereof or any member of his familyor in the absence of the latter, two witnesses ofsufficient age and discretion residing in thesame locality.


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Whether or not the requirementsufficient age and discretion

is applicable to the member ofthe family of lawful occupant.


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Rule 130 Section 21b, in relation to Section 20,of the Rules of Court is applicable indetermining whether a minor can be lawfully

considered as a witness in a search of a houseconducted by police agents.


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Rule 130 Section 20: Except as provided in thenext succeeding section, all persons who canperceive, and perceiving, can make known

their perception to others, may be witnesses... Rule 130 Section 21: The following persons

cannot be witnesses: ... (b) Children whosemental maturity is such as to render them

incapable of perceiving the facts respectingwhich they are examined and of relating themtruthfully.


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Rule 130 is the applicable rule in consideringwhat sorts of evidence are admissible in thelitigation of a case.

Sections 20 and 21b shows the qualifications ofwitnesses in a testimonial evidence.

Indeed, since both Section 8 of Rule 126 andRule 130 relate to the admissibility of evidence,then the rule on qualification of the childwitness in the latter rule could be applicable.


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... any child, regardless of age, can be

a competent witness if they meet thefollowing criteria: (a) capacity ofobservation, (b) capacity of

recollection, and (c) capacity ofcommunication. People v. Galas, decided by theSupreme Court on September 24, 1996


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ACT/OMISSION SEARCH OF A HOUSE

1) random, unpredictable,beyond the controls of

persons other than theperpetrators

2) Some acts, particularlycrimes, can be easily

remembered becausethey are very visual andvery frightening.

1) Within the controls ofthe police agents (they

can choose thewitnesses).

2) Cannot be as easilyremembered because

this act is not veryvisual in nature and isnot as shocking as someof the crimes


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ACT/OMISSION SEARCH OF A HOUSE

3) Articles that may be thesubject of the act or

omission may not be sospecific.

4) It is the trial judge whodetermines the

admissibility of a childwitness US v. Buncad,1913

3) Some articles in a searchof a house are very

specific.

4) Police officers candetermine what kind of

person can witness thesearch


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There is a DEARTH in the number of cases involving thevery issue on hand. In fact, after days and weeks ofsearching in Lex Libris and even in Westlaw, I unfortunatelyfound NONE...


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It is customary that parents do not leave their children alonein their homes without a grownup with them. Thus, thismere fact already diminishes the possibility that policeagents would search a house without the presence ofanybody but a child...


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In order to insure that the execution of thewarrant will be fair and reasonable, and in orderto insure that the officer conducting the searchshall not exceed his authority or use unnecessary

severity in executing the search warrant, as well asfor the officers own protection against unjustaccusations, it is required that the search beconducted in the presence of the lawful occupant

of the place to be searched, or any member of hisfamily, or in the absence, in the presence of twowitnesses of sufficient age and discretion residingin the same locality...


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1) So that the execution of the warrant will befair and reasonable...

2) So that the officer conducting the search shall

not...a) ...exceed his authority OR

b) ...use unnecessary severity

3) So that the officer will be protected againstunjust accusations...


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Rule 126 Sec 8 (1985)

Rule 126 Sec 7 (1975)

Rule 122 Sec 7 (1964)


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PRESENT RULE

No search of a house,room, or any other

premises shall be madeexcept in the presence ofthe lawful occupantthereof or any member ofhis family or in theabsence of the latter, twowitnesses of sufficientage and discretionresiding in the samelocality.

RULE 122 SEC 7

...The former rule(Rule 122, Sec. 7)

required the presence oftwo competentwitnesses.

- from Ambrosio Padillas

Commentary (1978 Ed.,p.1021)


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Luis B. Reyes Commentary: ...This particular amendmentto the Rules was made to conform the provision to the

present Article (Art. 130 of RPC) and was introduced toaddress the confusion brought about by differences in thelaw as found in the Rules of Court and the Revised PenalCode concerning witnesses to a search... 2 Reyes 75, 2008Edition


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RULE 126 SECTION 8 ARTICLE 130

No search of a house,room, or any other

premises shall be madeexcept in the presence ofthe lawful occupantthereof or any member ofhis family or in theabsence of the latter, twowitnesses of sufficientage and discretionresiding in the samelocality.

The penalty of arresto mayorin its medium and maximumperiods shall be imposed

upon a public officer oremployee who, in caseswhere a search is proper,shall search a domicile,papers or other belongings ofany person, in the absence of

the latter, any member of hisfamily, or in their default,without the presence of twowitnesses residing in thesame locality.


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Rule 126 Sec 8

Any member ofthe family

2 witnesses of

sufficient ageand discretionresiding in thesame locality

Effect:Inadmissibilityof evidence

Rule 122 Sec 7

2 competentwitnesses

Effect:Inadmissibilityof evidence

Article 130,RPC

Any member ofthe family

2 witnessesresiding in thesame locality

Effect: Officerwill be

imprisoned.


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Both the Supreme Court Library and the UP Law Library donot have a copy of the Minutes of the said committee...

making it almost impossible for any prudent person to findout whether the clause sufficient age and discretion isapplicable to any member of the family without anyreasonable doubt.

The Supreme Court Librarian said that the only people who

might have a copy of the said Minutes are the CommitteeMembers themselves...

Prof. Antonio Santos, the Librarian of this College,remarked, ...eh nasan na yung mga committee? Pwedengpatay na!


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Absence of theclause

sufficient ageand discretionto any member

of the family

Capacity toObserve;

Capacity toRecollect;

Capacity to

Communicate

Fairness ofsearch;

prevention ofabuse byofficer;

avoidance of

unjustaccusations


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With the absence of the clause sufficient ageand discretion in any member of the familycould mean that indeed, any member of thefamily can be a witness to a search.

However, common sense dictates that since therequirements were created to insure a fair andreasonable search to prevent police officersfrom abusing their rights and also to preventthe lawful occupant from making unjustaccusations against the police, there must be aline to be drawn somewhere...


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Meanwhile, the standards of perception such asCapacity to Observe, Capacity to Recollect and

Capacity to Communicate may be too vague ortoo broad to be considered as a good answer.

But if vagueness or broadness is the problem,the solution must be to specify or to heighten

the standards...

Furthermore, the Committee members obviousintention to include sufficient age and

discretion in the 2-witness rule shows us thatthere must have been an intention on the partof the Committee to heighten the standard...


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The standards of perception in the Galas casewas actually taken from Wigmore onEvidence, Volume 2.

The said book did not explain but it cited thefollowing cases: Wade v. State, Alabama 1874;Kelly v. State, Alabama 1883; and People v.Delaney, California, 1921.


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...intelligent enough to observe...

Case is about an 8-year old girl raped by anadult and the controversy on hand was

whether or not the testimony by the victim isadmissible.


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... The requirement that the child shall be able totruly relate the impressions that he may havereceived implies, not alone a truth-tellingdisposition, but a memory sufficiently strong andretentive to be able to recollect faithfully theobjective facts or the mental impressions originallycreated thereby...

If the infant be of sufficient years anddiscretion to know what occurs, to remember it,

and to give an intelligible account of it, and,when examined, comprehends the danger andimpiety of falsehood, he is a competentwitness


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... THEREQUIREMENTOFOURSTATUTEISNOTONEOFAGEBUTOFUNDERSTANDING.

through the ability of the child to narrate,considering also such physical manifestationsas may accompany narration, gestures, play offeatures, and the other indicia which willalways aid in determining mental dullness oralertness.


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MEANWHILETHEBOYUNDOUBTEDLYHEARDHISPARENTSTALKABOUTTHECASEANDITSDISTRESSINGFACTS. THEFORCEOFSUGGESTION,

ALWAYSSTRONG, ISPARTICULARLYPOTENTWITHTHEIMPRESSIONABLEANDPLASTICMINDOFCHILDHOOD ... THEREPETITIONOFSUPPOSEDFACTSINTHEPRESENCEOFACHILDOFTEN

CREATESAMENTALIMPRESSIONORCONCEPTTHATHASNOOBJECTIVEREALITYINANYACTUALLYEXISTINGFACT


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Standards of

Perception

Heightened Standards ofPerception: Capacity to

observe, recall andcommunicate very specificacts and articles seized. The

child must not be susceptibleto forces of suggestion thatcould induce him to testify

inaccurately

SubstantialDistinctions

Reasons for the rule


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It would be advisable that the police officer mustchoose a child who, they believe, is a keenobservant such as a child entrusted by its parentsto take care of the house because its parents believethat such child will see to it that nothing badhappens to the house.

In my belief and experiences, such child is atoftentimes observant of the things that happenaround him in such a way that he might qualify to

the said standards (i.e., the child must have thecapacity to observe, recall and communicate veryspecific acts and articles seized. The child must notbe susceptible to forces of suggestion that couldinduce him to testify inaccurately.)


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Police officers, in accepting a member of the family,must apply the heightened standards of perception to

the factual circumstances. For instance, if the article to be seized is a set of

financial statements or books of account, it would beadvisable for the police officers to choose a witnesswho would be able to remember these, such as a

matured person who understands what these articlesare. A child, even if nearing the age of majority, mightnot be able to remember these specific articles. On theother hand, a mature person who has, in his previousyears, took hold of the same items, might remember

these items more easily. If the article to be seized is marijuana, whose smell and

looks can be easily remembered by a child, then a childmay be chosen as a witness.


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The clause sufficient age and discretion does notrefer to age of majority and discretion for it wastaken from Kelly v. State, Alabama 1883, which isactually equivalent to the standards of perception.

From the Delaney case, age is not important. What

matters more is the level of understanding. The standards of perception must be applied to factual

circumstances and since a conduct of search hasfeatures so distinct from other acts, it would beadvisable to specify and heighten the standards.

Although the provision in issue speaks clearly that the2 witnesses shall be applied only if none of themembers of the family is present, we must not forgetthat the spirit and intent of the law governs over itsstrict literal interpretation.

minor witnesses in search of a house

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