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Opinion | National

MEL STA. MARIA | Slam dunk or 'supalpal'? Ruby Tuason as state witness may also damage plunder case
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Atty. Mel Sta. Maria is the resident legal analyst of TV5. He is Dean of the FEU Institute of Law. He also teaches at the Ateneo School of Law and daily co-hosts the program 'Relasyon' on Radyo Singko 92.3 News FM.

Ruby Tuason's affidavit must contain very incriminating allegations for Secretary De Lima to announce that it comprises "slam dunk evidence" in the plunder-investigation now pending in the Ombudsman - so good that the Department of Justice (DOJ) is said to be seriously planning to make Ruby Tuason a state witness. 

But any experienced prosecutor will tell you that applying for a court order to convert an alleged conspirator to a state witness is a very delicate move. Not approaching it with caution may later cause it to boomerang against the government. Let's see why and how.

A conspirator is made a state witness upon motion by the prosecution and after court approval. But before court approval, there will be a hearing. The government must present the conspirator to testify, and submit his/her affidavit showing all of the following requirements: absolute necessity of his/her testimony and its material substantiation and indispensability such that, without such testimony, the crime and the culprits cannot be proven. Also, the conspirator must prove that he/she does not appear to be the most guilty and has never been previously convicted of a crime involving moral turpitude.

If all the above requirements are present - if ALL of them are present - the affidavit and sworn testimony of the witness shall automatically form part of the trial. He/she will be discharged as an accused and be made a state witness.

If even one of the requirements is missing - yes, even just one - the court will disallow the discharge of the witness as a state witness. Here's why: any accused must always be made to answer for a crime if other evidence can prove the crime and the culprits beyond reasonable doubt. This can be damaging for the prosecution and the State: the witness' sworn testimony or affidavit which has already been submitted to the court will be inadmissible as evidence. 

Thus, even if Ruby Tuason's affidavit credibly incriminates some particular senators and clearly details the manner by which each of them got PDAF money, Tuason cannot be made a state witness if her testimony is not indispensable (considering, for example, that other witnesses such as Ben Hur Luy, who is not a conspirator, can prove the crime and the culprits.) As an alleged conspirator, in other words, she must defend herself like any other accused. 

Should the court reject the government plea for Tuason to become a state witness, her affidavit or sworn testimony, though dramatically incriminating, revealing and corroborative, will become, stunningly, inadmissible. Its probative value will disintegrate. It will become a useless scrap of paper.

Consequently, the government will lose that valuable piece of document and its content as proof to pin down the other accused. No matter how the prosecution attempts to introduce the Tuason-affidavit later in the trial, whether against Tuason or the other accused, it will surely be met with strong objections as to its admissibility. Worse for the government, the objections will most likely be sustained.

I do not know if Secretary De Lima can be considered an experienced criminal lawyer to be able to thoroughly comprehend all the possible benefits and dangers of this Tuason-affidavit under the technical rules of criminal evidence. But her initial elation must be tempered.

She should ask herself some of the questions being asked by the public, such as: is this extrajudicial confession nothing but a grand and deceptive ruse that, in reality, was designed to weaken the prosecution? Is the government being taken for a ride? Is this part of a clever and calculated script such that ultimately Tuason and her affidavit, supposedly being an important link, will ultimately be useless to the government?

Or is Tuason really "nakokonsyensya" (bothered by her conscience)? Or is Senator Jinggoy Estrada correct that the coming out of Tuason was motivated by some other factors such as her failure to get some favor the Senator? Or is this reaction of Senator Jinggoy Estrada part of that grand script?

Is there some other way to introduce the Tuason affidavit without her having to become a state witness - and even without any move on the part the prosecution seeking court approval that she be so? Cannot the statements of a co-conspirator, without being a state witness, be admissible for as long as the conspiracy was proven by some previous evidence? This is another way to do it, is it not?

"Slam dunk evidence"? Be careful with what you say, Secretary De Lima. There is no reason to be overconfident. You must think your strategy through very well and control your premature elation. In the end, a Lebron James might appear out of nowhere just as you are about to finally dunk it, and… SUPALPAL!