Introduction
In criminal law, the accused is armed with a vast array of defenses, both in substantive law, as well as in procedural law. In a criminal case, courts will consider all the facts, circumstances and the defenses raised by the accused and will only promulgate a judgement of conviction if it finds that an accused is guilty beyond reasonable doubt of the crime charged.[1] What if, however, the only defense an accused has available to him is Alibi, how must the court consider his defense? What are the procedural means which must be followed when making use of this defense?
Sadly, the law currently views alibi rather simplistically as the “weakest defense.”[2] Jurisprudence has been very consistent with this, as it has ruled in case after case that: “alibi is an inherently weak defense because it is easy to fabricate and highly unreliable.” [3]
In terms of procedure, no rules currently exist for its appreciation with the exception of the above pronouncements in case law.[4] In the Philippines, alibi is not considered a positive defense, neither is it considered rebuttal evidence. This characterization will have significant implications as to the appreciation of alibi during trial, and which may prejudice an otherwise innocent accused who chooses to raise this defense.
In contrast, alibi in the United States is appreciated very differently from the Philippines. There is a proper procedure for the raising of this specific defense. Furthermore, US courts characterize alibi as more or less a “complete defense.”
In this study, the author will look at the history of the alibi defense in the Philippines, and show the evolution of the defense, or lack thereof. This will be followed by a discussion of how the alibi defense is characterized in the Philippines and America. Lastly, he will discuss American procedure when raising the alibi defense and how juries are instructed to appreciate an alibi with a view to how the Supreme Court or the Legislature may be able to amend the rules on alibi in the future.
History of Alibi in the Philippines
According to the research of Bautista,[5] the first criminal case in which the alibi defense was ever raised in the Philippines was U.S. vs. Cardona,[6] however, in that case, the Supreme Court found that defense “unimportant” because the location of defendant on the date the crime allegedly occurred was not a “material ingredient” for the offense.[7] However, since this first case, the alibi in jurisprudence developed.
It was in U.S. vs. Mabanag[8] where the Supreme Court first explained the doctrine that alibi cannot prevail over positive testimony. Specifically, the Supreme Court said: “The evidence produced by the defendant to prove an alibi is not sufficient to overcome the positive testimony of two persons who identified him as the author of the assault in question.” A few months later, in U.S. vs. Santiago, the court expounded on the weakness of the alibi defense namely that: “having regard to the facility with which such a defense may be fabricated, we cannot attach to the evidence sufficient weight to bring into doubt the positive and in all respects satisfactory evidence of the prosecution connecting the defendants with the crime.”[9] Furthermore, as to evidentiary weight, the Court has also held that the defense of alibi should not be given credence if the corroboration comes from close relatives or friends of the accused and not from disinterested persons. In People v. Sumalinog, the court very specifically explained that kinship or closeness does not automatically discredit a witness, however “if that witness testifies to support the specific defense of alibi, courts view his testimony with skepticism.”[10] The Court explained very early on that this is due to the fact that alibi is very easily fabricated and that it is very easy for the accused to have close friends or relatives corroborate his story.[11] Since these early decisions, Philippine Courts have more or less appreciated the alibi the same way.
In 2010, the case of Lejano vs. People[12] was decided. This case was about the sensational Vizconde massacre wherein Hubert Webb, a “scion of a rich, influential, and politically powerful family,[13]” was accused of having committed the gruesome crime. Among other defenses, Webb raised the defense of alibi, claiming that he was in America at the time the massacre occurred. In support of this claim, he presented witness as well as object and documentary evidence such as his travel preparations, his despedida party, his immigration checks and he gave details of his sojourn and purchases made in the US.[14] In spite of this evidence, the lower courts held that the alibi defense is weak and would not prevail over the positive identification of the prosecution’s star witness, the police asset, Jessica Alfaro.[15] The Supreme Court however, thought differently and exonerated Webb based on the evidence he presented.
The success of the alibi defense in Lejano hinged on the fact that the witness who gave positive testimony of Hubert Webb as being one of the authors of the massacre was not credible because of her history as a police asset and as a “stool pigeon” who only came forward 4 years after the massacre,[16] as well as the strength of Webb’s documentary evidence to prove that he was out of the country. However, while Lejano threatened to buck the prevailing doctrine of the alibi defense, the result nevertheless seems disappointing because the court did not take the opportunity to “judicially legislate” procedural rules for alibi defenses, in spite of a good opportunity to do so. However, the court did take the opportunity to remind the lower courts to:
[N]ot all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangman’s noose in the face of a witness positively swearing, “I saw him do it.”? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet?
There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, “He did it!” without blinking an eye.[17]
The Supreme Court further declared that the quantum of evidence required by the lower courts in order to prove the element of physical impossibility of being at the crime scene in the Lejano case is so high, such that the only acceptable alibi in the Philippines would be the passage of the accused “into the next life,” and because of this, the Court “must abandon this unjust and inhuman paradigm.”[18] However, several years after this pronouncement, meaningful change in the jurisprudence or procedure has yet to occur because the prevailing doctrine remains that alibi is the weakest defense.
How Alibi is Characterized in the Philippines
Although alibi is a very common defense in Philippine courts, it is confounding to note that no provision exists in our Rules of Court that deals with this defense, criteria is limited to jurisprudence,[19] and apparently, no doctrine is more jurisprudentially settled in the Philippines than that alibi is “the weakest defense,”[20] or variations of this theme, such as alibi being “inherently weak,” and which must be “brushed aside” when the prosecution has sufficiently and positively ascertained the identity of the accused.[21]
The author believes that part of the problem has to do with the fact that the prosecution and the Courts have no guidance with respect to procedure, as well as how to appreciate the defense. In the first case, alibi is considered a mere “negative defense.”[22] Compounding the problem, aside from being defined as a defense, alibi is also defined as a form of “evidence,”[23] and is thus also considered a factual issue with its own weight and sufficiency of proof.[24] In some early cases, the court held that it should be proven by probable evidence,[25] while in many later cases, it was held that it should be proven by positive, clear and convincing evidence.[26]
In making an alibi defense, an accused more or less admits that a crime has taken place, however, the accused was simply too far away from the scene of the crime that he could not have committed it.[27] The fact that an accused admits the act or omission charged, makes alibi partake of the characteristics of an affirmative defense. However, raising this defense does not have the effect of reversing trial as provided for in Section 11, Rule 119 which provides that the Prosecution shall be the first to present evidence to prove the charge, followed by the accused who shall present evidence on his defense, except when: “When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified.”[28]
As mentioned, instead of treating alibi as an affirmative defense, the courts instead treat it as a negative defense, that is, the accused is merely allowed to deny the State’s claim. A desirable side-effect of this characterization is that if an accused’s alibi defense does not convince the court of his innocence, the failure of the defense alone will not convict the accused.[29]
How Alibi is Characterized in the United States
In stark contrast to Philippine jurisprudential rules on alibi, American jurisprudence has been much more accommodating on accused interposing this defense. US courts have declared that alibi, “if established, constitutes a complete, legitimate, and effective defense and precludes the possibility of guilt.[30]”
The question thus arises if whether or not alibi may be considered an affirmative defense in the US. In the United States, as in the Philippines, there is no definite pronouncement as to whether alibi is an affirmative defense or not as some American authorities consider alibi as merely a “rebuttal” defense while others consider it an affirmative defense which the accused has the burden of establishing.[31] Since it is neither an affirmative or rebuttal defense, alibi should simply be characterized as a “complete and direct denial of the state’s case,”[32] the distinction being that that an affirmative defense admits the act charged but seeks to justify the act or exempt or mitigate liability, while an alibi defense essentially denies that the accused committed the act charged.[33] In the U.S., evidence to prove an alibi is not regarded as an attempt to prove an independent, affirmative defense. The prosecution still has the burden of proving the accused’s presence beyond a reasonable doubt, and the accused may, by any legitimate evidence, rebut or disprove this essential factor in the case for the prosecution.[34]
Jury Instructions
In the U.S., criminal cases are tried before juries, hence Judges are tasked with giving instructions to juries as to the “burden of proof” required of the prosecution and of the accused as to their respective defenses. With regards to alibi however, Judges would often omit the phrase “burden of proof” as to the existence of an alibi.[35] And instead of focusing the attention of the jury on the question whether the alibi has been proved the Court instead regards evidence to prove an alibi in the same light as any other evidence tending to disprove guilt or to disprove the case for the prosecution, with the cumulative effect of producing reasonable doubt on the entire case, which may lead to an acquittal.[36] Indeed, it has been held that jury instructions which indicate or even suggest that the accused satisfy a higher degree of proof in establishing an alibi are improper,[37] as is an instruction where the jury may infer guilt from its disbelief of the accused’s alibi.[38] This is in stark contrast with the Philippine treatment of the defense which requires the defense to prove the alibi by clear and convincing evidence.[39]
Notice Requirement
Before an alibi defense reaches the trial stage however, some States, and Courts at the Federal level,[40] would require that the accused give notice to the prosecution of their intention to rely on an alibi defense and to specify the place where the accused claims to have been when the crime was committed and the witnesses on whose testimony they will rely on in establishing the defense.[41] Non-compliance with this requirement may bar the alibi.[42] The purpose of this notice, in view of the ease of fabricating an alibi, is to prevent last-minute surprises on the prosecution and to enable it to make a full and thorough investigation of the merits of the defense.[43]
Conclusion
The bias against the alibi defense in the Philippines is very strong. More than one hundred years of jurisprudence stating that alibi is the weakest defense, easy to fabricate and can never prevail against prevail against positive identification of the accused can potentially cause injustice against those falsely accused, but who chose to raise alibi as a defense. Part of the reason for this is the lack of procedural rules which Courts must follow when an accused raises an alibi, as well as an inherent bias and dependence on a presumption that alibi was raised for self-serving purposes. The Philippine Supreme Court and the Legislature should probably look to how their American counterparts treat the alibi defense. In contrast to Philippine rules, American jurisprudence has a much higher regard for this defense and provide proper procedural guidance for their prosecutors and their Courts both before and after a trial. Their requirement that an alibi defense must be raised at the earliest possible moment likewise confers credibility to the defense, as does the “relaxed” burden of proof requirement for proving an alibi which is more consistent with the idea that an alibi constitutes a complete, legitimate and effective defense.
[1] Rev. Rules on Evidence, Rule 133, sec. 2
[2] Modesto A. Ticman, Jr., Updates in Criminal Law, 4 (2016)
[3] People vs. Veloso, 690 SCRA 586 (2013); People vs. Banzuela, 712 SCRA 735 (2013);
[4] Rodolfo Pompeyo Cabrillas, Annotation, The Theory of Alibi, 54 SCRA 369 (1973).
[5] Melissa A. Bautista, Buying the Alibi: Challenging the Jurisprudential Doctrine that Alibi is the Weakest Defense, Unpublished Thesis, Ateneo de Manila Law School (2010)
[6] 1 Phil. 381 (1902)
[7] Ibid p. 383
[8] 1 Phil. 441 (1902), p. 442
[9] U.S. vs. Santiago, 1 Phil 545 (1902), p. 547
[10] People vs. Sumalinong, G.R. No. 128387, February 5, 2004, 422 SCRA 55 (2004)
[11] U.S. vs. De Jesus, 2 Phil. 514 (1902), p. 525
[12] 638 SCRA 104, G.R. No. 176389, December 14, 2010
[13] Ibid p. 248
[14] Ibid pp. 145-149
[15] Ibid p. 149
[16] Ibid p. 133
[17] Ibid p. 149-150
[18] Ibid p. 152
[19] Supra, Note 4.
[20] But see People vs. Sumalinong, Supra Note 10 p.63, where the Supreme Court stated that alibi is: “concededly the weakest defense.”
[21] People vs. Manigo, 714 SCRA 551; People vs. Las Piñas, 730 SCRA 571; People vs. Torres, G.R. No. 189850, September 22, 2014, 735 SCRA 687 (2014) ; People vs. Estonilo, G.R. No. 201565, October 13, 2014, 738 SCRA 204 (2014).
[22] Alicia Gonzales-Decano, Annotation, Denial and Alibi, 84 Phil Rep. Annot. 945, 951.
[23] Ibid p. 946
[24] People vs. Apa-ap, Jr. G.R. No. 110993, August 17, 1994, 235 SCRA 468 (1994); People vs. Sanchez, G.R. No. 121039-45, January 25, 1999, 302 SCRA 21
[25] U.S. vs. Oxiles 29 Phil. 587 (1915) 592 G.R. No. L-9999; February 23, 1915 , People vs. Cinco 67 Phil. 196 (1939) 199 G.R. No. L-46144; April 5, 1939, People vs. De Guzman 70 Phil. 23 (1940) 26 G.R. No. 47228; June 17, 1940,
[26] Supra Note 2 p. 5
[27] Supra Note 20 p.946
[28] 2000 Rev. Rules of Crim. Proc., Rule 119, sec. 11
[29] Supra Note 4 p.370
[30] 21 Am Jur 2d § 220
[31] 22A C.J.S. Criminal Law § 951
[32] Supra Note 30
[33] Ibid
[34] 29 ALR 1127
[35] Ibid
[36] Ibid
[37] 75A Am. Jur. 2d Trial § 1065
[38] Ibid
[39] Supra Note 2 at 5
[40] Federal Rules on Criminal Procedure, Rule 12.1(a)
[41] 21 Am Jur 2d § 223
[42] Ibid.
[43] 21 Am Jur § 224
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