371 Phil. 491
YNARES-SANTIAGO, J.:
before the general consul, consul, vice-consul or consular agent of the Philippines in lieu of presenting them as witnesses in court alleging that the said persons are all residents of the United States and may not therefore be compelled by subpoena to testify since the court had no jurisdiction over them.
1.] Steven Bucher Acting Chief, Records Services Branch U.S. Department of Justice Immigration and Naturalization Service 425 Eye Street, N.W. Washington D.C. 20536 U.S.A. 2.] Debora Farmer Records Operations, Office of Records U.S. Department of Justice Immigration and Naturalization Service Washington D.C. U.S.A. 3.] Jaci Alston Department of Motor Vehicles Sacramento, California U.S.A. 4.] Ami Smalley Department of Motor Vehicles Sacramento, California
U.S.A. 5.] John Pavlisin 210 South Glasell, City of Orange California, 92666 U.S.A.
"SEC. 4. Use of depositions. - At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:The prosecution thereafter filed an opposition to the said motion averring that: 1.] Rule 24, Section 4 of the Rules of Court, contrary to the representation of respondent-accused, has no application in criminal cases; 2.] Rule 119, Section 4 of the Rules of Court on Criminal Procedure, being a mode of discovery, only provides for conditional examination of witnesses for the accused before trial not during trial; 3.] Rule 119, Section 5 of the Rules of Court on Criminal Procedure does not sanction the conditional examination of witnesses for the accused/defense outside Philippine jurisdiction.[2]
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;
(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;
(c) The deposition of a witness whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; (2) that the witness is out of the province and a greater distance than fifty (50) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used;
(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced and any party may introduce any other parts." (italics supplied).
"WHEREFORE, the petition is GRANTED. The orders of respondent judge dated 11 June 1997 (Annex `A' of the Petition) and 25 July 1997 (Annex `B' of the Petition) are hereby ANNULLED and SET ASIDE. It is hereby ordered that the deposition of the following witnesses be TAKEN before the proper consular officer of the Republic of the Philippines in Washington D.C. and California, as the case may be:From the foregoing, the People forthwith elevated its cause to this Court by way of the instant petition dispensing with the filing of a motion for reconsideration for the following reasons: 1.] The rule that the petitioner should first file a motion for reconsideration applies to the special civil action of certiorari under Rule 65 of the 1997 Rules of Civil Procedure and there is no similar requirement in taking an appeal from a final judgment or order[11] such as the present appeal by certiorari; 2.] Section 4, Rule 45 in requiring a petition for review on certiorari which indicates that "when a motion for new trial or reconsideration, if any, was filed" implies that petitioner need not file a motion for reconsideration; 3.] The questions being raised before the Court are the same as those which were squarely raised before the Court of Appeals;[12] 4.] The issues being raised here are purely legal;[13] 5.] There is an urgent need to resolve the issues considering that the trial of the accused in the criminal case is about to end; and, 6.] The nature of this case requires a speedy and prompt disposition of the issues involved.[14]
(a) Mr. Steven Bucher;
(b) Ms. Deborah Farmer;
(c) Mr. Jaci Alston;
(d) Ms. Ami Smalley; and
(e) Mr. John Pavlisin.
SO ORDERED."
IN RULING THAT RULE 23 OF THE 1997 RULES OF CIVIL PROCEDURE IS APPLICABLE TO CRIMINAL PROCEEDINGS.which can be reduced to the primordial issue of whether or not the trial judge gravely abused her discretion in denying the motion to take testimony by oral depositions in the United States which would be used in the criminal case before her Court.II IN RULING THAT THE DEPOSITION MAY BE TAKEN BEFORE A CONSULAR OFFICER OF THE PHILIPPINES WHERE THE PROSPECTIVE WITNESSES RESIDE OR ARE OFFICIALLY STATIONED.III
IN RULING THAT RESPONDENT WAS DEPRIVED OF DUE PROCESS OF LAW BY THE TRIAL COURT.
"Settled is the rule that the whole purpose and object of procedure is to make the powers of the court fully and completely available for justice. Thus, as the Supreme Court has ruled in Manila Railroad Co. vs. Attorney General and reiterated in subsequent cases:We disagree.
"x x x The most perfect procedure that can be devised is that which give the opportunity for the most complete and perfect exercise of the powers of the court within the limitations set by natural justice. It is that one which, in other words, gives the most perfect opportunity for the powers of the court to transmute themselves into concrete acts of justice between the parties before it. The purpose of such a procedure is not to restrict the jurisdiction of the court over the subject matter, but to give it effective facility in righteous action. It may be said in passing that the most salient objection which can be urged against procedure today is that it so restricts the exercise of the court's powers by technicalities that part of its authority effective for justice between the parties is many times an inconsiderable portion of the whole. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate the application of justice to the rival claims of the contending parties. It was created not to hinder and delay but to facilitate and promote the administration of justice. It does not constitute the thing itself which the courts are always striving to secure the litigants. It is designed as the means best adapted to obtain that thing. In other words, it is a means to an end. It is the means by which the powers of the court are made effective in just judgments. When it loses the character of the one and takes on the other [,] the administration of justice becomes incomplete and unsatisfactory and lays itself open to grave criticism."[17]
In the light of the foregoing judicial precedent, this Court finds that the public respondent gravely abused her discretion in denying the motion to take the deposition of the witnesses for petitioner. While petitioner had invoked Rule 23, Section 1 of the Rules of Court, which is found under the general classification of Civil Procedure, it does not prevent its application to the other proceedings, provided the same is not contrary to the specific rules provided therein. Indeed, the Rules of Court is to be viewed and construed as a whole, and if the Supreme Court had compartmentalized the same into four divisions, it was, as petitioner had claimed, for the purpose of organization and expediency and not, for exclusivity.
To be sure, a reading of the rules on criminal procedure, specifically Section 4, Rule 119 vis-à-vis Section 1, Rule 23 would reveal no inconsistency so as to exclude the application of the latter rule in criminal proceedings. Section 4, Rule 119 refers to the conditional examination of witnesses for the accused before trial, while Section 1, Rule 23 refers to the taking of deposition witnesses during trial. x x xx x x x x x x x x
While the taking of depositions pending trial is not expressly provided [for] under the Rules on Criminal Procedure, we find no reason for public respondent to disallow the taking of the same in the manner provided for under Section 1 of Rule 23 under the circumstances of the case. To disallow petitioner to avail of the specific remedies provided under the Rules would deny him the opportunity to adequately defend himself against the criminal charge of rape with homicide now pending before the public respondent and, further, [it] loses sight of the object of procedure which is to facilitate the application of justice to the rival claims of contending parties.x x x x x x x x x
Even granting arguendo that Rule 23 is to be exclusively applied to civil actions, the taking of the deposition of petitioner's US-based witnesses should be still allowed considering that the civil action has been impliedly instituted in the criminal action for rape with homicide. Since public respondent has jurisdiction over the civil case to recover damages, she exercised full authority to employ all auxillary writs, processes and other means to carry out the jurisdiction conferred and [to] adopt any suitable process or mode of proceeding which includes the application of the rule on depositions pending action under Rule 23 in the case pending before her.
Second. Depositions obtained during trial in a foreign state or country may be taken before a consular officer of the Republic of the Philippines where the deponent resides or is officially stationed.[18] Section 5, Rule 119 of the Rules of Court is thus clearly inapplicable in the instant case since the same relates to the examination of witnesses under Section 4 thereof and not Section 1 of Rule 23. Consistent with the procedure provided [for] under Rule 23, the deposition of the petitioner's witnesses, which include four (4) officials of the United States government, will be taken before a consular officer of the Philippines where these witnesses reside or are officially stationed, as the case may be.
The denial of petitioner's right to present his witnesses, who are residing abroad, based on a very shaky technical ground, is tantamount to depriving him of his constitutional right to due process. This Court recognizes the impossibility of enforcing the right of petitioner to secure the attendance of the proposed witnesses through compulsory process considering that they are beyond the jurisdiction of Philippine Courts. Petitioner, however, is not without any remedy and he correctly sought to secure the testimonies of his witnesses through the process of taking their depositions pending the trial of Criminal Case No. 95-404 in the court below under Rule 23 of the Rules of Court. In any event, the prosecution would have the opportunity to cross-examine the witnesses for accused Hubert Webb (petitioner herein) since they will be given the opportunity to cross-examine the deponents as in accordance with Sections 3 to 18 of Rule 132.[19]
Furthermore, no prejudice would be suffered in the taking of the depositions of petitioner's US-based witness[es]. On the other hand, a denial of the same would be prejudicial to petitioner-accused since he would be denied an opportunity to completely present his evidence, which strikes at the very core of the due process guarantee of the Constitution. To reiterate, it is not the function of this Court to second-guess the trial court on its ruling on the admissibility of the pieces of documentary evidence as well as the latter's witnesses,[20] but it is definitely within this court's inherent power to scrutinize, as it does in the case at bench, the acts of respondent judge and declare that she indeed committed grave abuse of discretion in issuing the questioned Orders.
In the final analysis, this Court rules that the denial of the deposition-taking amounts to the denial of the constitutional right to present his evidence and for the production of evidence in his behalf. The denial is not justified by the flimsy reason that Sec. 1 of Rule 23 of the Rules of Court is not applicable to criminal proceedings. To rule that petitioner cannot take the testimony of these witnesses by deposition is to put [a] premium on technicality at the expense of the constitutional rights of the accused, which this court is not inclined to do. Particularly where the issue of the guilt or innocence of petitioner is bound to hinge heavily upon the testimonies of his US-based witnesses, it behooves upon public respondent not only to guarantee that accused is given a reasonable opportunity to present his evidence, but also to allow him a certain latitude in the presentation of his evidence, lest he may be so hampered that the ends of justice may eventually be defeated or appear to be defeated. Finally, even if respondent's contention is correct, it cannot be denied that the case at bar includes the recovery of the civil liability of the accused, which normally is done through a civil case."
"The testimony of a witness taken upon oral question or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution. A pretrial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. The person who is deposed is called the deponent. The deposition is conducted under oath outside of the court room, usually in one of the lawyer's offices. A transcript - word for word account - is made of the deposition. Testimony of [a] witness, taken in writing, under oath or affirmation, before some judicial officer in answer to questions or interrogatories x x x."[21]and the purposes of taking depositions are to: 1.] Give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury; 2.] Provide an effective means of detecting and exposing false, fraudulent claims and defenses; 3.] Make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with great difficulty; 4.] Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements; 5.]Expedite litigation; 6.] Safeguard against surprise; 7.] Prevent delay; 8.] Simplify and narrow the issues; and 9.] Expedite and facilitate both preparation and trial.[22] As can be gleaned from the foregoing, a deposition, in keeping with its nature as a mode of discovery, should be taken before and not during trial. In fact, rules on criminal practice - particularly on the defense of alibi, which is respondent's main defense in the criminal proceedings against him in the court below - states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion.[23]
"SEC. 6. Power of the court to stop further evidence. - The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution." (emphasis and italics supplied.)Needless to state, the trial court can not be faulted with lack of caution in denying respondent's motion considering that under the prevailing facts of the case, respondent had more than ample opportunity to adduce evidence in his defense. Certainly, a party can not feign denial of due process where he had the opportunity to present his side.[45] It must be borne in mind in this regard that due process is not a monopoly of the defense. Indeed, the State is entitled to due process as much as the accused.[46] Furthermore, while a litigation is not a game of technicalities, it is a truism that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice.[47]
"Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess or jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. There must be a capricious, arbitrary and whimsical exercise of power for it to prosper."[51]Whether or not the respondent-accused has been given ample opportunity to prove his innocence and whether or not a further prolongation of proceedings would be dilatory is addressed, in the first instance, to the sound discretion of the trial judge. If there has been no grave abuse of discretion, only after conviction may this Court examine such matters further. It is pointed out that the defense has already presented at least fifty-seven (57) witnesses and four hundred sixty-four (464) documentary exhibits, many of them of the exact nature as those to be produced or testified to by the proposed foreign deponents. Under the circumstances, We sustain the proposition that the trial judge commits no grave abuse of discretion if she decides that the evidence on the matter sought to be proved in the United States could not possibly add anything substantial to the defense evidence involved. There is no showing or allegation that the American public officers and the bicycle store owner can identify respondent Hubert Webb as the very person mentioned in the public and private documents. Neither is it shown in this petition that they know, of their own personal knowledge, a person whom they can identify as the respondent-accused who was actually present in the United States and not in the Philippines on the specified dates.
"To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The petitioner in such cases must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion defies exact definition, but generally refers to `capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.'
"It has been held, however, that no grave abuse of discretion may be attributed to a court simply because of its alleged misappreciation of facts and evidence. A writ of certiorari may not be used to correct a lower tribunal's evaluation of the evidence and factual findings. In other words, it is not a remedy for mere errors of judgment, which are correctible by an appeal or a petition for review under Rule 45 of the Rules of Court.
"In fine, certiorari will issue only to correct errors of jurisdiction, not errors of procedure or mistakes in the findings or conclusions of the lower court. As long as a court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than errors of judgment which are reviewable by timely appeal and not by special civil action for certiorari."[52]
SEC. 4. Application for examination of witness for accused before trial. -- When the accused has been held to answer for an offense, he may, upon motion with notice to all other parties, have witnesses conditionally examined in his behalf in the manner hereinafter provided, but not otherwise. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is so sick or infirm as to afford reasonable ground for believing that he will not be able to attend the trial, or resides more than 100 kilometers from the place of trial and has no means to attend the same, or that, apart from the foregoing, other similar circumstances exist that would make him unavailable or prevent him from attending the trial. The motion shall be supported by affidavit of the accused and such other evidence as the court may require. (4a)These Sections refer to the conditional examination of defense witnesses, which is "one mode of perpetuating testimony available to the accused" (REGALADO F.D., REMEDIAL LAW COMPENDIUM, vol. 2, 1995 ed., 428). This deposition, being to perpetuate testimony, may be done before the commencement of the trial state, or anytime thereafter, as the need therefor arises, but before the promulgation of judgment.
SEC. 5. Examination of defense witness; how made. -- If the court is satisfied that the examination of witness for the accused is necessary, an order will be made directing that the witness be examined at a specified time and place, and that a copy of the order be served in the fiscal within a given time prior to that fixed for the examination. The examination will be taken before any judge or if not practicable, any member of the Bar in good standing so designated by the judge in the order, or, if the order be granted by a court of superior jurisdiction, before an inferior court to be designated in the order. The examination shall proceed notwithstanding the absence of the fiscal, if it appears that he was duly notified of the hearing. A written record of the testimony shall be taken. (5a)
SEC. 7. Depositions pending appeal. -- If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in the rules for depositions taken pending actions.This Section, which was formerly Section 7 of Rule 134, applies to criminal cases. (REGALADO F.D., REMEDIAL LAW COMPENDIUM, vol. 1, 1997 ed., 322). According to Justice Regalado the procedure in Section 7 is available in all actions, including criminal cases.
xxx. Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition against the taking of deposition after pre-trial. Indeed, the law authorizes the taking of depositions of witnesses before or after an appeal is taken from the judgment of a Regional Trial Court "to perpetuate their testimony for use in the event of further proceedings in the said court." (Rule 134, Rules of Court), and even during the process of execution of a final and executory judgment (East Asiatic Co. v. C.I.R., 40 SCRA 521, 5440).The only corollary issue that has to be addressed is how to take the testimony of a defense witness who is unable to come to testify in open court because he is a resident of a foreign country. The Rule on Criminal Procedure is silent on this. I respectfully submit, however, that the rule on the matter under Rules on Civil Procedure may be applied suppletorily. Section 11 of Rule 23 of the 1997 Rules on Civil Procedure is the appropriate provision. It reads:
SEC. 11. Persons before whom depositions may be taken in foreign countries. -- In a foreign state or country, depositions may be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) before such person or officer as may be appointed by commission or under rogatory; or (c) the person referred to in Section 14 hereof. (11a, R24)There are provisions of the Rule on Civil Procedure which have been made applicable in criminal cases. For one, as earlier mentioned, Section 7 of Rule 24 is applicable in criminal cases. See also the instances allowed in Caños v. Peralta, (115 SCRA 843 [1982]); Naguiat v. Intermediate Appellate Court, (164 SCRA 505 [1988]); and Cojuangco v. Court of Appeals, (203 SCRA 619 [1991]).
"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 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]
"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 ABA's 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 prosecutor's disclosure obligation, under that later standard, extended to `all the material and information within the prosecutor's possession or control.' So far, however, not even the most liberal discovery jurisdiction has been willing to adopt such an open-ended provision."
"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.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.
"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 suspect's 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 prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's 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."