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CONCURRING OPINION
PUNO, J.:
I agree that respondent Webbs 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--vis the rights of an accused will provide us a clear focus of the problem at bar.
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 In civil litigation, the development of these rules came at a faster speed. By the 1940s, 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.
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 1940s, 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 1950s 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.
The liberalization of the rules of discovery in criminal procedure in the United States while slow was unabated. In the 1960s, 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 mans 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 defendants 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
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 viz:
The debate over the merits of expanding defense discovery produced a reassessment of discovery law in every jurisdiction. Overall, the proponents of extensive defense discovery had far more success than their opponents. As far back as 1966, the Supreme Court spoke of the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice, and referred to the expanding body of materials, judicial and otherwise, favoring disclosure in criminal cases analogous to the civil practice. That there is to be defense discovery in criminal cases is now taken as a matter of course. The issues that divide the various jurisdiction today relate only to exactly how far that discovery should be carried. Moreover, the trend has been in the direction of consistently broadening the reach of defense discovery, as illustrated by the changes over the years in Federal Rule 16. As originally adopted in 1946, Rule 16 simply allowed the defendant access, on a showing of materiality, to documents obtained by the government. In 1966, Rule 16 was completely revised to grant the trial court discretion to order discovery of a broad range of items (basically written or recorded statements of the defendant, reports of physical and medical examinations, and relevant documents and other tangible objects). In 1975, there was still another revision of Rule 16 which produced essentially the current provision. That revision further broadened the range of discoverable statements (including, for example, the substance of oral statements of the defendant) and made prosecutorial disclosure mandatory (rather than leaving it to the discretion of the trial court). The original draft of the 1975 revision, as approved by the Supreme Court, would also have required disclosure of the names, addresses, and felony conviction records of all prosecution witness, but Congress struck that provision from the Rule as it was eventually adopted.
In contrast to Congress, many states have been willing to take defense discovery several steps beyond current Rule 16. The American Bar Association, in 1970, recommended adoption of discovery provisions extending substantially beyond even the broadest federal proposal, and a large number of states revised their discovery provisions in accordance with ABAs proposed standards. They provided for defense discovery of a wide range of items, including not only the names of prospective prosecution witnesses, but also any statements they had given to the police. The ABA later expanded upon even those standards and proposed open file discovery. The prosecutors disclosure obligation, under that later standard, extended to all the material and information within the prosecutors possession or control. So far, however, not even the most liberal discovery jurisdiction has been willing to adopt such an open-ended provision.
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
Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. Section 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. But these provision apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial.
This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspects life, liberty and property to a real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. As this Court emphasized in Rolito Go vs. Court of Appeals, the right to have preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation to a potential accused. It is also implicit in section (3)(a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint which shall x x x state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents. x x x.'
In laying down this rule, the Court is not without enlightened precedents from other jurisdiction. In the 1963 watershed case of Brady v. Maryland the United States Supreme Court held that suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Its progeny is the 1935 case of Mooney v. Holohan which laid down the proposition that a prosecutors intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutors duty to disclose to the defense exculpatory evidence in its possession. The rationale is well put by Justice Brennan in Brady society wins not only when the guilty are convicted but when criminal trials are fair. Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished.
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.
