Challenged in this petition for review on certiorari is the Decision of the Court of Appeals in CA-G.R. SP No. 45399 entitled "Hubert Jeffrey P. Webb v. Hon. Amelita Tolentino, in her capacity as Presiding Judge of Branch 274 of the Regional Trial Court of Parañaque, People of the Philippines and Lauro Vizconde" which set aside the order of respondent judge therein denying herein respondent Hubert Jeffrey P. Webb’s request to take the depositions of five (5) citizens and residents of the United States before the proper consular officer of the Philippines in Washington D.C. and California, as the case may be.

The factual and procedural antecedents are matters of record or are otherwise uncontroverted. Jksm

Respondent Hubert Jeffrey P. Webb is one of the accused in Criminal Case No. 95-404 for Rape with Homicide entitled "People of the Philippines v. Hubert Jeffrey P. Webb, et al." presently pending before Branch 274 of the Regional Trial Court of Parañaque, presided by Judge Amelita G. Tolentino.

During the course of the proceedings in the trial court, respondent filed on May 2, 1997, a Motion To Take Testimony By Oral Deposition1 [Rollo, p. 78; Annex C, Petition.] praying that he be allowed to take the testimonies of the following:

before the general consul, consul, vice-consul or consular agent of the Philippines in lieu of presenting them as witnesses in court alleging that the said persons are all residents of the United States and may not therefore be compelled by subpoena to testify since the court had no jurisdiction over them.

Respondent further alleged that the taking of the oral depositions of the aforementioned individuals whose testimonies are allegedly ‘material and indispensable’ to establish his innocence of the crime charged is sanctioned by Section 4, Rule 24 of the Revised Rules of Court which provides that:

The prosecution thereafter filed an opposition to the said motion averring that: 1.] Rule 24, Section 4 of the Rules of Court, contrary to the representation of respondent-accused, has no application in criminal cases; 2.] Rule 119, Section 4 of the Rules of Court on Criminal Procedure, being a mode of discovery, only provides for conditional examination of witnesses for the accused before trial not during trial; 3.] Rule 119, Section 5 of the Rules of Court on Criminal Procedure does not sanction the conditional examination of witnesses for the accused/defense outside Philippine jurisdiction.2 [Rollo, p. 54.]

In an Order dated June 11, 1997, the trial court denied the motion of respondent on the ground that the same is not allowed by Section 4, Rule 24 and Sections 4 and 5 of Rule 119 of the Revised Rules of Court.3 [Ibid., pp. 55-56.]

A motion for reconsideration4 [Id., pp. 89-92.] thereto on the grounds that: 1.] The 1997 Rules of Court expressly allows the taking of depositions, and 2.] Section 11 of Rule 23 of the 1997 Rules of Court expressly allows the taking of depositions in foreign countries before a consul general, consul, vice-consul or consular agent of the Republic of the Philippines, was likewise denied by the trial court in an order dated July 25, 1997.5 [Id., p. 57; Annex C, Petition.] Msesm

Dissatisfied, respondent elevated his cause to the Court of Appeals by way of a petition for certiorari6 [Id., pp. 58-77; Annex D, Petition.] naming as respondents therein the Presiding Judge Amelita G. Tolentino, the People and private complainant Lauro Vizconde. In the petition, docketed as CA-G.R. SP No. 45399, respondent Webb argued that: 1.] The taking of depositions pending action is applicable to criminal proceedings; 2.] Depositions by oral testimony in a foreign country can be taken before a consular officer of the Philippine Embassy in the United States; and, 3.] He has the right to completely and fully present evidence to support his defense and the denial of such right will violate his constitutional right to due process.

Commenting7 [Id., pp. 94-104; Annex E, Petition.] on the petition, the People contended that the questioned orders of the Presiding Judge are well within the sphere of her judicial discretion and do not constitute grave abuse of discretion amounting to lack or excess of jurisdiction and that if at all, they may be considered merely as errors of judgment which may be corrected by appeal in due time because: a.] The motion failed to comply with the requirements of Section 4, Rule 119 of the Rules of Court; b.] The conditional examination must be conducted before an inferior court; and c.] The examination of the witnesses must be done in open court. Exsm

In his Comment,8 [Id., pp. 105-128; Annex F, Petition.] private respondent Lauro Vizconde sought the dismissal of the petition contending that:

On February 6, 1998, the Fourth Division9 [Decision penned by Justice Demetrio G. Demetria concurred in by Justices Minerva P. Gonzaga-Reyes and Ramon A. Barcelona; Rollo, pp. 41-52; Annex A, Petition.] of the Court of Appeals rendered judgment,10 [Ibid., p. 51.] the dispositive portion of which reads:

From the foregoing, the People forthwith elevated its cause to this Court by way of the instant petition dispensing with the filing of a motion for reconsideration for the following reasons: 1.] The rule that the petitioner should first file a motion for reconsideration applies to the special civil action of certiorari under Rule 65 of the 1997 Rules of Civil Procedure and there is no similar requirement in taking an appeal from a final judgment or order11 [Citing BA Finance Corporation v. Pineda 119 SCRA 493 [1982].] such as the present appeal by certiorari; 2.] Section 4, Rule 45 in requiring a petition for review on certiorari which indicates that "when a motion for new trial or reconsideration, if any, was filed" implies that petitioner need not file a motion for reconsideration; 3.] The questions being raised before the Court are the same as those which were squarely raised before the Court of Appeals;12 [Citing Legaspi Oil Co., Inc. v. Geronimo, 76 SCRA 174 [1977].] 4.] The issues being raised here are purely legal;13 [Citing Gonzales v. IAC, 131 SCR 468 [1984].] 5.] There is an urgent need to resolve the issues considering that the trial of the accused in the criminal case is about to end; and, 6.] The nature of this case requires a speedy and prompt disposition of the issues involved.14 [Citing Geronimo v. Comelec, 107 SCRA 614 [1981].]

What are challenged before this Court are interlocutory orders and not a final judgment. The respondent has filed his Comment15 [Rollo, p. 153.] which We treat as an Answer. The petitioner, in turn, filed a Reply.16 [Rollo, p. 229.] The petition is ripe for decision. Slx

In urging this Tribunal to exercise its power of review over the assailed decision of the Appellate Court, petitioner asserts that the Court of Appeals committed serious and reversible error –

which can be reduced to the primordial issue of whether or not the trial judge gravely abused her discretion in denying the motion to take testimony by oral depositions in the United States which would be used in the criminal case before her Court.

In setting aside the order of the trial judge, the Appellate Court’s Fourth Division reasoned, inter alia, thus:

x x x x x x x x x

While the taking of depositions pending trial is not expressly provided [for] under the Rules on Criminal Procedure, we find no reason for public respondent to disallow the taking of the same in the manner provided for under Section 1 of Rule 23 under the circumstances of the case. To disallow petitioner to avail of the specific remedies provided under the Rules would deny him the opportunity to adequately defend himself against the criminal charge of rape with homicide now pending before the public respondent and, further, [it] loses sight of the object of procedure which is to facilitate the application of justice to the rival claims of contending parties. Korte

x x x x x x x x x

Even granting arguendo that Rule 23 is to be exclusively applied to civil actions, the taking of the deposition of petitioner’s US-based witnesses should be still allowed considering that the civil action has been impliedly instituted in the criminal action for rape with homicide. Since public respondent has jurisdiction over the civil case to recover damages, she exercised full authority to employ all auxillary writs, processes and other means to carry out the jurisdiction conferred and [to] adopt any suitable process or mode of proceeding which includes the application of the rule on depositions pending action under Rule 23 in the case pending before her. Sclaw

Second. Depositions obtained during trial in a foreign state or country may be taken before a consular officer of the Republic of the Philippines where the deponent resides or is officially stationed.18 [Citing Rule 115, Sec. 6; Rule 23, Sec. 11 and Erana v. Vera, 4 Phil. 22 [1943].] Section 5, Rule 119 of the Rules of Court is thus clearly inapplicable in the instant case since the same relates to the examination of witnesses under Section 4 thereof and not Section 1 of Rule 23. Consistent with the procedure provided [for] under Rule 23, the deposition of the petitioner’s witnesses, which include four (4) officials of the United States government, will be taken before a consular officer of the Philippines where these witnesses reside or are officially stationed, as the case may be.

The denial of petitioner’s right to present his witnesses, who are residing abroad, based on a very shaky technical ground, is tantamount to depriving him of his constitutional right to due process. This Court recognizes the impossibility of enforcing the right of petitioner to secure the attendance of the proposed witnesses through compulsory process considering that they are beyond the jurisdiction of Philippine Courts. Petitioner, however, is not without any remedy and he correctly sought to secure the testimonies of his witnesses through the process of taking their depositions pending the trial of Criminal Case No. 95-404 in the court below under Rule 23 of the Rules of Court. In any event, the prosecution would have the opportunity to cross-examine the witnesses for accused Hubert Webb (petitioner herein) since they will be given the opportunity to cross-examine the deponents as in accordance with Sections 3 to 18 of Rule 132.19 [Citing Rule 23, Sec. 3, Rules of Court.] Slxmis

Furthermore, no prejudice would be suffered in the taking of the depositions of petitioner’s US-based witness[es]. On the other hand, a denial of the same would be prejudicial to petitioner-accused since he would be denied an opportunity to completely present his evidence, which strikes at the very core of the due process guarantee of the Constitution. To reiterate, it is not the function of this Court to second-guess the trial court on its ruling on the admissibility of the pieces of documentary evidence as well as the latter’s witnesses,20 [Citing People v. Galimba, 253 SCRA 22 [1996].] but it is definitely within this court’s inherent power to scrutinize, as it does in the case at bench, the acts of respondent judge and declare that she indeed committed grave abuse of discretion in issuing the questioned Orders. Missdaa

We disagree. Rtcspped

As defined, a deposition is -

and the purposes of taking depositions are to: 1.] Give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury; 2.] Provide an effective means of detecting and exposing false, fraudulent claims and defenses; 3.] Make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with great difficulty; 4.] Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements; 5.]Expedite litigation; 6.] Safeguard against surprise; 7.] Prevent delay; 8.] Simplify and narrow the issues; and 9.] Expedite and facilitate both preparation and trial.22 [23 Am Jur 2d 493, citing Greyhound Corp. v. Superior Court of Merced County, 56 Cal 2d 355, 15 Cal. Rptr. 90 364 2d 266.] As can be gleaned from the foregoing, a deposition, in keeping with its nature as a mode of discovery, should be taken before and not during trial. In fact, rules on criminal practice - particularly on the defense of alibi, which is respondent’s main defense in the criminal proceedings against him in the court below - states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion.23 [Kadish and Paulsen, Criminal Law and its Processes, 3rd ed. pp. 1279, 189 and 1284 [1980], citing Sikora v. District Court, 154 Mont. 241, 251, 462 P. 2d 897, 902; Wardius v. Oregon, 412 U.S. 470, 471-475 and William v. Florida, 399 U.S. 78.] Sc

It needs to be stressed that the only reason of respondent for seeking the deposition of the foreign witnesses is "to foreclose any objection and/or rejection of, as the case may be, the admissibility of Defense Exhibits ‘218’ and ‘219’." This issue has, however, long been rendered moot and academic by the admission of the aforementioned documentary exhibits by the trial court in its order dated July 10, 1998.24 [Rollo, p. 209.]

In fact, a circumspect scrutiny of the record discloses that the evidence to be obtained through the deposition-taking would be superfluous or corroborative at best. A careful examination of Exhibits "218" and "219" readily shows that these are of the same species of documents which have been previously introduced and admitted into evidence by the trial court in its order dated July 18, 1997 which We noted in Webb, et al. v. People of the Philippines, et al.25 [276 SCRA 243, 255 [1997], citing the Parañaque RTC, Branch 274’s Order dated 18 June 1997 in Criminal Case No. 95-404 entitled People v. Webb, et al.] wherein We pointed out, among others, "[t]hat respondent judge reversed this erroneous ruling and already admitted these 132 pieces of evidence after finding that ‘the defects in (their) admissibility have been cured though the introduction of additional evidence during the trial on the merits’."26 [Ibid., pp. 254-255.] Xsc

Indeed, a comparison of Exhibit "218-A" which is a U.S. Department of State Certification issued by Joan C. Hampton, Assistant Authenticating Officer of the said agency, for and in the name of Madeleine K. Albright, stating that the documents annexed thereto were issued by the U.S. Department of Justice as shown by seal embossed thereon,27 [Annex C, Comment; Rollo, p. 133.] with other exhibits previously offered as evidence reveals that they are of the same nature as Exhibits "42-H"28 [Annex D, Comment; Rollo, p. 134.] and "42-M."29 [Annex, E, Comment; Rollo, p. 135.] The only difference in the documents lies in the fact that Exhibit "218-A" was signed by Joan C. Hampton for and in behalf of the incumbent Secretary of State, Madeleine K. Albright whereas, Exhibits "42-H" and "42-M" were signed by Authenticating Officer Annie R. Maddux for and in behalf of former Secretary of State Warren Christopher.30 [Rollo, pp. 133-135.]

A comparison of Exhibit "218-B"31 [Annex F, Comment; Rollo, p. 136; A U.S. Department of Justice Certification dated 5 February 1997, issued by the Deputy Assistant Attorney General for Administration in behalf of U.S. Attorney General Janet Reno, stating that Jack Kravitz, whose name and signature appearing on the accompanying document was, at the time of signing thereof, an Acting Assistant Commissioner at the Office of Records, U.S. Immigration and Naturalization Service (INS).] with the other documentary exhibits offered by respondent, likewise discloses that its contents are the same as Exhibits "42-I"32 [Annex G, Comment; Rollo, p. 137; A U.S. Department of Justice Certification dated 21 September 1995, issued by the Deputy Assistant Attorney General for Administration in behalf of U.S. Attorney General Janet Reno, stating that Cecil G. Christian, Jr. whose name and signature appearing on the accompanying paper, was employed with the Commission, INS, U.S. Department of Justice.] and "42-N."33 [Annex H, Comment; Rollo, p. 138; A U.S. Department of Justice Certification dated 21 September 1995, issued by the Deputy Assistant Attorney General for Administration in behalf of U.S. Attorney General Janet Reno, stating that "Clint W. Palmer [signing] for Cecil G. Christian, Jr." whose name is signed in the accompanying paper, was employed with the Commission, INS, U.S. Department of Justice.] The only difference in the three exhibits, which are actually standard issue certification forms issued by the U.S. Department of Justice with blanks to be filled up, is that Exhibit "218-B" is dated February 5, 1997 and signed by one of the U.S. Attorney General’s several Deputy Assistant Attorneys for Administration for and in her behalf, while Exhibits "42-I" and "42-N" are both dated September 21, 1995 with another of the said deputies signing both documents.34 [Rollo, pp. 136-138.] Scmis

Still comparing respondent’s Exhibit "218-F,"35 [Annex I, Comment; Rollo, p. 139; Another U.S. Department of Justice INS Certification issued this time by Debora A. Farmer, Director of Records Operations, dated October 13, 1995 stating that the attached document is a computer-generated print-out found in the Non-Immigrant Information System (NIIS).] which is likewise a standard issue U.S. Department of Justice Certification Form, with other documents previously introduced as evidence reveals that it is the same as Exhibits "39-D"36 [Annex J, Comment; Rollo, p. 141.36 and "42-C."37 Annex K, Comment; Rollo, p. 142.] The only differences in these documents are that Exhibit "218-F" is dated October 13, 1995 and is signed by Debora A. Farmer while Exhibits "39-D" and "42-C" are both dated August 31, 1995 and signed by Cecil G. Christian, Jr., Assistant Commissioner, Officer of Records, INS.38 [Rollo, pp 139-142.]

Still further scrutinizing and comparing respondent’s Exhibit "218-G"39 [Annex L, Comment; Rollo, p. 143; A computer-generated print-out of respondent’s alleged entry into and exit from the United States.] which was also introduced and admitted into evidence as Defense Exhibit "207-B"40 [Rollo, p. 210.] shows that the document has been earlier introduced and admitted into evidence by the trial court an astounding seven (7) times, particularly as Exhibits "34-A", "35-F", "39-E", "42-D", "42-P", "50" and "50-F."41 [Ibid., pp. 211-217.] The only difference in these documents is that they were printed on different dates. Specifically, Exhibits "218-G" as with Exhibits "34-A", "35-F", "50", and "52-F" were printed out on October 26, 199542 [Id., pp. 211-212, 216-217.] whereas Exhibit "207-B" as with Exhibits "39-E", "42-D" and "42-F" were printed out on August 31, 1995.43 [Id., pp. 213-215.] Ncm

In fact, the records show that respondent’s: a.] application for Non-Commercial Driver’s License; b.] Documentary records based on Clet’s Database Response; c.] Computer-generated thumb-print; d.] Documentary records based on still another Clet’s Database Response, and e.] The Certification issued by one Frank Zolin, Director of the State of California’s Department of Motor Vehicles, were already introduced and admitted into evidence as Defense Exhibits "66-J", "66-K", "66-H", "66-I" and "66-L", respectively.44 [Id., pp. 152-156; Annexes V, W, T, U and X, Comment.]

It need not be overemphasized that the foregoing factual circumstances only serves to underscore the immutable fact that the depositions proposed to be taken from the five U.S. based witnesses would be merely corroborative or cumulative in nature and in denying respondent’s motion to take them, the trial court was but exercising its judgment on what it perceived to be a superfluous exercise on the belief that the introduction thereof will not reasonably add to the persuasiveness of the evidence already on record. In this regard, it bears stressing that under Section 6, Rule 113 of the Revised Rules of Court: Oldmiso

Needless to state, the trial court can not be faulted with lack of caution in denying respondent’s motion considering that under the prevailing facts of the case, respondent had more than ample opportunity to adduce evidence in his defense. Certainly, a party can not feign denial of due process where he had the opportunity to present his side.45 [People v. Acol, 232 SCRA 406 [1994].] It must be borne in mind in this regard that due process is not a monopoly of the defense. Indeed, the State is entitled to due process as much as the accused.46 [Depamaylo v. Brotarlo, 265 SCRA 151 [1996]; see also People v. Leviste, 255 SCRA 238 [1996].] Furthermore, while a litigation is not a game of technicalities, it is a truism that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice.47 [Sajot v. Court of Appeals, G.R. No. 109721, 11 March 1999, p.6.] Manikan

The use of discovery procedures is directed to the sound discretion of the trial judge.48 [Section 6, Rule 133, Revised Rules of Court.] The deposition taking can not be based nor can it be denied on flimsy reasons.49 [Ibid.] Discretion has to be exercised in a reasonable manner and in consonance with the spirit of the law. There is no indication in this case that in denying the motion of respondent-accused, the trial judge acted in a biased, arbitrary, capricious or oppressive manner. Grave abuse of discretion "x x x implies such capricious, and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act all in contemplation of law."50 [Cuison v. Court of Appeals, 289 SCRA 159 [1998], citing Esguerra v. Court of Appeals, 267 SCRA 380 [1997], citing Alafriz v. Nable, 72 Phil. 278 [1941], citing Leung Ben v. O’Brien, 38 Phil. 182 [1918]; Salvador Campos y Cia v. Del Rosario, 41 Phil. 45 [1920]; Abad Santos v. Province of Tarlac, 38 O.G. 830; See also, San Sebastian College v. Court of Appeals, 197 SCRA 444 [1991]; Sinon v. Civil Service Commission, 215 SCRA 410 [1992]; Bustamante v. Commission on Audit, 216 SCRA 134 [1992]; Zarate v. Olegario, 263 SCRA 1 [1996].] Ncmmis

Whether or not the respondent-accused has been given ample opportunity to prove his innocence and whether or not a further prolongation of proceedings would be dilatory is addressed, in the first instance, to the sound discretion of the trial judge. If there has been no grave abuse of discretion, only after conviction may this Court examine such matters further. It is pointed out that the defense has already presented at least fifty-seven (57) witnesses and four hundred sixty-four (464) documentary exhibits, many of them of the exact nature as those to be produced or testified to by the proposed foreign deponents. Under the circumstances, We sustain the proposition that the trial judge commits no grave abuse of discretion if she decides that the evidence on the matter sought to be proved in the United States could not possibly add anything substantial to the defense evidence involved. There is no showing or allegation that the American public officers and the bicycle store owner can identify respondent Hubert Webb as the very person mentioned in the public and private documents. Neither is it shown in this petition that they know, of their own personal knowledge, a person whom they can identify as the respondent-accused who was actually present in the United States and not in the Philippines on the specified dates. Manikx

WHEREFORE, in view of all the foregoing, the petition is hereby GRANTED. The Decision of the Court of Appeals dated February 6, 1998 in CA-G.R. SP No. 45399 is hereby REVERSED and SET ASIDE. The Regional Trial Court of Parañaque City is ordered to proceed posthaste in the trial of the main case and to render judgment therein accordingly.

Kapunan, and Pardo, JJ., concur.

Davide, Jr., C.J., see separate opinion.

Puno, J., see concurring opinion. Nexold

I fully concur with the majority that the trial court did not commit grave abuse of discretion in denying the application of the defense for the taking by depositions of the testimony of its witnesses who are residents of the United States of America. Since the trial court had already admitted the exhibits on which the said witnesses would have testified, the taking of the depositions would have been unnecessary. Miso

However, the issue of whether the taking of the depositions of such witnesses may be allowed in criminal cases before the Philippine courts must be squarely resolved.

I take an affirmative stand on the issue. For one, we have Sections 4 and 5 of Rule 119 of the Rules of Court which read:

These Sections refer to the conditional examination of defense witnesses, which is "one mode of perpetuating testimony available to the accused" (REGALADO F.D., REMEDIAL LAW COMPENDIUM, vol. 2, 1995 ed., 428). This deposition, being to perpetuate testimony, may be done before the commencement of the trial state, or anytime thereafter, as the need therefor arises, but before the promulgation of judgment.

Then, too, there is Section 7 of Rule 24 of the Rules of Court, which reads: Spped

This Section, which was formerly Section 7 of Rule 134, applies to criminal cases. (REGALADO F.D., REMEDIAL LAW COMPENDIUM, vol. 1, 1997 ed., 322). According to Justice Regalado the procedure in Section 7 is available in all actions, including criminal cases.

Thus, the ruling in the case of Dasmarinas Garments, Inc. v. Court of Appeals, (225 SCRA 622, 634 [1993]), is applicable in the case at bar, to wit:

The only corollary issue that has to be addressed is how to take the testimony of a defense witness who is unable to come to testify in open court because he is a resident of a foreign country. The Rule on Criminal Procedure is silent on this. I respectfully submit, however, that the rule on the matter under Rules on Civil Procedure may be applied suppletorily. Section 11 of Rule 23 of the 1997 Rules on Civil Procedure is the appropriate provision. It reads:

There are provisions of the Rule on Civil Procedure which have been made applicable in criminal cases. For one, as earlier mentioned, Section 7 of Rule 24 is applicable in criminal cases. See also the instances allowed in Caños v. Peralta, (115 SCRA 843 [1982]); Naguiat v. Intermediate Appellate Court, (164 SCRA 505 [1988]); and Cojuangco v. Court of Appeals, (203 SCRA 619 [1991]). Edpsc

Also, an authority on criminal procedure asserts that in all matters not specifically touched on by Section 6 and the preceding Sections of Rule 119, "Rule 24, Rules of Court, ante, applies in a suppletory character, since the taking of depositions under Rule 24 and conditional examination of defense witnesses under Section 4 and 5, Rule 119, supra, are taken under the same circumstances and for the same purpose; that is, the preservation of a material witness’ testimony." (PAMARAN, THE 1985 RULES IN CRIMINAL PROCEDURE ANNOTATED, 1998 ed., 402).

Finally, Section 6 of Rule 1 of the 1997 Rule of Civil Procedure (formerly Sec. 2, Rule 1 of the 1964 Rules of Court), expressly provides that the rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Scedp

A much stronger reason exists why deposition in criminal cases of a witness for the defense who is residing abroad must be allowed . Involved in a criminal case is not just the status or the property of the defendant, but the life or limb or the liberty of the accused. If, then, a deposition is allowed for a witness in a civil case, then it is with more reason that it be allowed in a criminal case; its denial would amount to a deprivation of due process and to the accused’s right to compulsory process to secure the attendance of witnesses in his favor, which are guaranteed by the Bill of Rights (Sections 1 and 14(2), Article III, Constitution). Calrsc

I agree that respondent Webb’s Motion to Take Testimony by Oral Deposition was correctly denied by the trial court on the ground of lack of necessity. The only reason for the filing of the motion is "to foreclose any objection and /or rejection of, as the case may be, the admissibility of defense Exhibits ‘218’ and ‘219’." It appears that said Exhibits "218" and "219" have already been admitted by the trial court.

I write this opinion to complement the learned opinion of our Chief Justice. A quick peek at the evolution of our laws and rules on discovery and deposition vis-à-vis the rights of an accused will provide us a clear focus of the problem at bar. Sdjad

It is a historical fact that our Rules of Court were taken from the United States. It is thus proper to examine how the rules on discovery and deposition evolved in the United States. American legal history will reveal that the rules on discovery and deposition in civil litigation underwent a different evolution than their counterpart rules in criminal litigation.1 [See W. LaFave and J. Israel, Criminal Procedure, Hornbook series, p. 741, et. seq.] In civil litigation, the development of these rules came at a faster speed. By the 1940’s, court rules and legislations promoted the ideal of full and open pre-trial discovery in civil cases. Thus, they provided for depositions, interrogatories, production of documents, inspection of intangible items and physical and mental examinations. Well to note, our first Rules of Court followed this highly developed pattern. The liberalization of discovery and deposition rules in civil litigation highly satisfied the objective of enhancing the truth-seeking process of litigation as all relevant evidence are immediately brought up front in the courts. Sccalr

This successful experience in civil litigation triggered thoughts whether the same rules of discovery and deposition could likewise be adopted in criminal cases. American legal history will tell us that the efforts encountered great difficulties. Initially, American courts adopted the common law rule that courts have no inherent power to order pre-trial discovery in criminal cases. They searched for legislative authorization before they exercised the power. This judicial stance, however, was slowly eroded by the erudite view of Professor Wigmore that the common law rule was a rule "of policy, not of power." By the 1940’s, majority of the states had adopted different rules on pre-trial discovery in criminal procedure. Some allowed the accused to move for pre-trial discovery only for specific types of evidence. Others gave the right only to an accused pleading alibi as a defense. Even then, it was clear that by the 1950’s pre-trial discovery was the exception rather than the general rule in criminal procedure. Again, it is worthwhile noting that our rules on criminal procedure followed this trend. Thus, we have section 4 of Rule 119 of our Rules of Court which allows examination of witness for the accused only before trial. Misact

The liberalization of the rules of discovery in criminal procedure in the United States while slow was unabated. In the 1960’s, the movement received tremendous impetus from a liberal US Supreme Court led by Chief Justice Earl Warren whose decisions radically expanded the rights of an accused. For years and until now, proponents and opponents of liberal defense discovery and depositions in criminal cases continue to lock horns. Proponents of liberal defense discovery hammer on the need to make criminal trials "less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." Opponents of liberalization argue that

Three factors distinguish civil discovery from criminal discovery, viz: "(1) the criminal defendant’s privilege against self incrimination, which would not permit the fully reciprocal discovery found in civil practice; (2) the greater likelihood that defense discovery in criminal cases would be used to facilitate successful perjury; and (3) the greater likelihood that criminal defense discovery would lead to the intimidation of witnesses"2 [LaFave, op. cit., p. 726.] Sppedsc

The debate has been unceasing but it appears that the liberals are on the winning side. I quote the observations of Professors LaFave and Israel,3 [Ibid., p. 729.] viz:

In the case of the Philippines, the move towards a more liberal discovery and deposition procedure in criminal cases is even slower but its march, likewise, appears inexorable. There can be no stepping back for the 1987 Constitution has gone to the extent of constitutionalizing basic rights of an accused, which has not been done in the United States. With this new orientation of the Constitution, this Court itself has taken steps to liberalize our rules of criminal procedure. Thus, Section 1, Rule 118 of our 1985 Rules on Criminal Procedure for the first time ordered the holding of pre-trial when the accused and the counsel agree. The fruitful experience of courts holding pre-trial in criminal cases has impelled requests that our rules be further amended to make it mandatory. Thus, too, this Court has given an expansive interpretation of the right of an accused to discovery procedure. In the first Webb case, we held:4 [Webb vs. De Leon, et al., 247 SCRA 652, pp. 686-689 (1995).] Acctmis

Upon assumption of office, our present Chief Justice vowed to have a court that is pro-active, a stance that will surely promote rights more than authority. I am sure such a stance will quicken moves to liberalize further our rules on criminal procedure on the matter of discovery and deposition taking as to strengthen the constitutional right to due process of an accused. Sdaad

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