What does it take to be a state witness?

As the investigation into anomalous flood control projects heats up, contractors Sarah and Curlee Discaya have expressed interest in being state witnesses in the probe.

But what are the requirements in order to be a state witness?

In an interview with GMA News Online, National Union of Peoples’ Lawyers (NUPL) President Atty. Ephraim Cortez said that an individual must “technically” first be charged first before Philippine courts in order to become a state witness.

This is because a court will be the one to discharge an accused for him to become a state witness, according to Cortez.

Under the Rules of Criminal Procedure, the court may direct one or more of the accused in a case to be discharged with their consent upon the motion of the prosecution, so they may be witnesses for the state. 

The prosecution must present evidence and the sworn statement of each proposed state witness in support of the discharge.

“Sa criminal procedure, definitely dapat merong indictment, ma-charge tapos tsaka ifa-file ‘yung motion for the accused to be discharged,” Cortez said.

(In criminal procedure, definitely there should be an indictment, the accused should be charged, and then a motion for the accused to be discharged should be filed.)

According to the Rules, the court must be satisfied with the following:

• There is absolute necessity for the testimony of the accused whose discharge is requested;
• There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;
• The testimony of said accused can be substantially corroborated in its material points;
• Said accused does not appear to be the most guilty; and
• Said accused has not at any time been convicted of any offense involving moral turpitude

Should the accused be discharged, Cortez said that this is considered an acquittal.

“Technically, ang effect ng discharge ay acquittal, sabi ng decisions ng Supreme Court (SC) at ‘yun ang sabi din sa Rules. Pero may precondition ‘yan. He needs to testify,” he said.

(Technically, the effect of discharge is acquittal, according to the decisions of the Supreme Court and also stated in the Rules. But there is a precondition to that. He needs to testify.)

“So, let’s say na discharge siya, so he qualified as state witness pero later on hindi siya nag testify. May problem doon sa effect nung discharge. Hindi mag-attach ‘yung effect ng discharge, which is acquittal,” he added.

(So, let’s say he was discharged, so he qualified as a state witness but later on did not testify. There would be a problem with the effect of the discharge. The effect of discharge, which is acquittal, will not take effect.)

Meanwhile, should the court deny the motion of the prosecution, his sworn statement  shall be inadmissible in evidence, according to the Rules.

Possible without a case?

When asked if an individual may become a state witness without being charged, Cortez said this may be up to the discretion of the Department of Justice (DOJ) and the Philippine National Police.

“It will be an agreement between the DOJ at saka ‘yung witness na ‘yun. Pero ang effect noon ay hindi siya isasama sa indictment, hindi siya isasama sa case,” he said.

(It will be an agreement between the DOJ and that witness. But the effect of that is he will not be included in the indictment, he will not be included in the case.)

GMA News Online has asked the DOJ for a statement and will update the story once it is available.

Meanwhile, Cortez said that there is nothing in the law or Rules on Criminal Procedure that explicitly prohibits such an action.

“Kasi ‘yung Rules on Criminal Procedure, it covers instances where the cases are already pending in Court, so kaya ongoing na ‘yung trial. So ‘yung prior to trial, I think whether to file a case in Court or not, sabi ng SC, ay within the discretion ng Prosecutorial Service ng DOJ,” he said. 

(Because the Rules on Criminal Procedure cover instances where the cases are already pending in Court, so that’s why the trial is already ongoing. So prior to trial, I think whether to file a case in Court or not, according to the Supreme Court, is within the discretion of the Prosecutorial Service of the DOJ.)

The Discayas, before the Senate Blue Ribbon Committee on Monday, disclosed the names of several congressmen, their staff, and officials of the Department of Public Works and Highways who are allegedly involved in corruption of the flood control projects.

They said they were willing to cooperate with the investigation of the Senate committee.

However, Justice Secretary Jesus Crispin Remulla has said that the Discayas must first return any ill-gotten funds, if any, to the country's coffers before they can be considered as state witnesses. — RSJ, GMA Integrated News