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Mar 06

Lawyers discuss “Fruit of the Poisonous Tree” as Senate holds Caucus March 6

Arroyo: In fact, we find it very hard, just to get one. They have filed an omnibus opposition to every bank account that we have subpoenaed. All the allegations now, they say, “that the bank accounts are not part of it, they are not assets.” All of us here, the senators and us, congressmen, we files Statements of Assets and Liabilities. If you see the column “Assets,” it reads here: (a) real properties; (b) personal and other properties. Listed in (b), cash on hand and in banks. So those are assets. Now business is separate. It is under Letter B.

Roco: Yes.

Fri, Mar 02 2012 22:08:01
  • In the end, the defense tried to invoke a legal doctrine to throw out damaging evidence: the Fruit of the Poisonous Tree Doctrine.
  • Here is a concise summary of the law and its application, as far as the admissibility of evidence is concerned.
  • Quite early on, observers of the trial pointed out that if the defense was, naturally, inclined to prevent the introduction of damaging evidence, going head-to-head or point-for-point with the defense would leave the prosecution at a natural disadvantage (all other factors considered aside).
  • II. The Case in Hand

  • The case at hand –what the Senate will decide in caucus on March 6– is whether the documents concerning bank accounts will be declared admissible as evidence.
  • In her column, Yoly Ong crunches the numbers, and compares what the Chief Justice has declared under oath as his properties, cash, and other assets, and what has emerged in the Senate over the past weeks.
  • Law blogger Article VIII Jester has been covering the developments in the trial, including the emerging evidence and what it means.
  • First, quite early on (Day 11) he pointed out that the defense was floundering on how to handle the evidence presented for Article II.
  • This would be a problem to which there seems only one solution: to exclude the evidence, which might secure an acquittal on what can only be described as a technicality.
  • Second, on February 4, he pointed out the damaging repercussions of the revelation of dollar deposits. The defense went to the Supreme Court, which imposed a TRO. That remains pending, and so the issue will not be tackled in the March 6 caucus of the Senate. But should the Supreme Court eventually relent, the prosecution has made a reservation to return to Article II if and when the Supreme Court decides to allow examination of dollar deposits. This would come, however, in the midst of the defense’s presentation of its side.
  • Third, he provides a wrap-up of the evidence of the prosecution in terms of Article II, and discusses its relative weight, how and whether it is admissible –and the difficulty the defense will have in rebutting the evidence.
  • III. The Lawyers Weigh in

  • Senator Miriam Defensor-Santiago has tried to put herself forward as the authority bar none, on legality. But as this excerpt shows, not everything she has objected to or pointed out, is necessarily correct.
  • Recall that Alexander Hamilton had defined impeachment as a “grand inquest” into the “conduct of public men.”
  • There are two lawyers who have weighed in on the issue. The first is The Warrior Lawyer, in this entry:
  • His entry points out possible legal arguments to be made, allowing bank records –regardless of how they were obtained– to be considered in evidence.
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    Under the Calandra ruling, illegally seized evidence may be admitted in grand jury investigations if the invocation of the exclusionary rule (poisonous tree) would unduly impede the grand jury’s investigative and accusatorial functions. It may reasonably be argued that the Senate impeachment proceeding is more akin to that of a grand jury investigation than a criminal prosecution. The role of a grand jury is to ferret out the truth by a thorough and extensive investigation, unhindered by the challenge that it may have acted on the basis of incompetent or inadequate evidence. This is precisely how the prosecution in the Senate impeachment trial wants to paint the proceedings.There are therefore sufficient legal grounds to allow the Leal leaks as evidence, if only because, to paraphrase Calandra, the potential damage to our political institutions and processes by the imposition of “fruit of the poisonous tree” rule outweighs any possible abridgement of personal privacy rights on C.J. Corona’s part.

    Of course, the defense will have equally persuasive evidence to counter the admission of the leaked documents. Expect legal fireworks at the resumption of the Senate hearing on March 12.

    Fri, Mar 02 2012 22:07:28
  • The second lawyer is Edsel Tupaz, who also weighs in on the issue:
  • IV. Judges or Jurors

  • In the end, the Senators will be debating a question that divided them in 2000-2001, and again, now: do you focus on impeachment as a judicial exercise, or do you take a broader approach, knowing that, precisely, the framers of the Constitution placed impeachment in the hands of a political branch (Congress), with the House as accuser and the Senate as the body to, collectively, determine conviction or acquittal?
  • In 2001, Raul S. Roco argued that a legalistic approach is inherent in the defense, and tempting to lawyers among the Senators; but the public, perhaps more in synch with what impeachment is supposed to be –a public investigation into the fitness of an official for continuance in office– would not (and perhaps, should not) be overly concerned with legal technique, since actual imprisonment or fines aren’t the province of impeachment: it is, precisely, which impeachment is not a barrier to criminal trial afterwards.
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    Roco: …If we convict or declare as innocent the respondent, President Estrada, it must be on full transparency. It must be in the light. It would be sad if we convict or declare the President innocent, while forgetting or covering some evidence. The technical objection is that it is not in the complaint. In fact, it is there. According to former Justice Isagani A. Cruz in his writing, the defense would find it hard to see it in the Articles of Impeachment, and I understand that because we lawyers like to tell our own side. The prosecution will present its side, the defense will present its own too. But as judges we will allow them to quarrel, but we will have to wait for the entirety of the evidence.The fact that we are on trial should make us pause, Mr. Chief Justice. And I hope we achieve some consensus on some points. Whatever the final judgment of the Impeachment Court, whether guilty or innocent, it is important that it should be supported by the Filipino citizenry. It is not important that the judgment is guilty or innocent. It must be supported by the Filipino people and the Republic of the Philippines.

    This evening we seem to be about to cross a bridge, and I hope, Mr. Chief Justice, that when we cross that, we retain the higher credibility of the Impeachment Court and the impeachment process. We are the ones who have asked to do this job, and that is why I do not want to debate on legal technicalities. The interest of national unity, the interest of the people, is at stake, and we cannot forget that that is the issue here, whether or not we are going to open…

    Fri, Mar 02 2012 22:07:28
  • Among the veterans of the 2000-2001 impeachment, who took a legalistic approach and who incurred the wrath of the public, is the presiding officer, Senate President Juan Ponce Enrile. He seems to have decided to take a middle course, compared to his earlier stance; nowhere as generous as say, the late Raul S. Roco’s, but far more cognizant of how overlawyering the proceedings was unpopular in the past.
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    THE PRESIDING OFFICER.  I just want to state this for the record, and for the consideration of the members of this court, as well as the two panels of lawyers representing both sides of this impeachment trial, while we are a court of record, we are not really strictly a court that maintains a record for purposes of appeal, because there is no appeal in this case.  And so, therefore, we are blazing a new trail, though the rules that were mentioned, in my humble opinion, are not applicable to this particular proceeding because there is no assignment of errors to be taught about for the future because there is no appeal, lying in the decision of this court, either we pronounce the respondent guilty or we say, he is not guilty, and either side, no appeal lying.  The end of the matter will be the verdict of this court.Unlike in an ordinary civil proceeding, civil case or in a criminal case, if the defendant is convicted, he can appeal to a higher court and assign removable errors of the lower court, or in a civil case, whoever losers in the civil case can appeal the case and assign removable errors in his appellate pleading.  In this case, there is no appeal, so, whatever we say, with respect to the evidence, with respect to the admissibility of the evidence, ends there.

    They are recorded for reference purposes, but the verdict will be rendered by this court on the basis of the appreciation, final and ultimate appreciation of each of the members of the Senate sitting as Judges, Jurors, in this—that is why I called it Jurors, because each one of us will form a judgement of this case of the respondent.  Once that judgement is rendered, we count the number of votes that will vote in favour of acquittal as well as the number of votes involving—that will be in favour of pronouncement of guilt and if it is guilt, whether we attain the 2/3 vote, which is an absolute 16 of all the Members of the Senate.

    So, all of these discussions are for our own guidance. But since there is no reversible error in this proceeding, because there is no appeal, we will take the bull by the horn when we reach the bridge, so to speak.  Okay.

    Fri, Mar 02 2012 22:07:45
  • V. Why it’s so

  • This is an interesting piece written by former Senate President Jovito Salonga in 2001, where he criticized the Senate of the time as too eager to turn impeachment into a judicial exercise. He gives reasons why this is wrong, and suggested a different approach –one apparently taken to heart by Senators such as Roco and others. It remains to be seen if this view will win out in the present impeachment.
  • VI. What’s next?

  • Definitely, the decision of the Senate in caucus on March 6 is a crucial one –both for the prosecution, and the defense. But it will only be one of a whole series of decision points the Senate will have to reach, until it arrives at its verdict.

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