May I share a pleading I have filed in the Supreme Court in re: a petition I had previously filed in behalf of a client in a criminal case a new forensic document examination by the National Bureau of Investigation to counterbalance the disputed examination previously conducted by the PNP Crime Laboratory. Read the 2 jurisprudence/discussed below.
THE PETITIONER x x x, by counsel, respectfully states:
1. The issue is not whether it is MANDATORY or INDISPENSABLE on the part of the trial court to order a questioned document examination, or whether the reports and findings of expert witnesses are BINDING on the courts. The petitioner knows the standard and traditional Remedial Law doctrines on expert evidence and expert witness. He knows that the participation of expert witnesses in judicial proceedings is not mandatory. But he also knows that it will be very useful, in the interest of truth and justice, for the trial courts to avail themselves of the technical expertise of expert institutions, like the National Bureau of Investigation. In fact, it is standard and routine on the part of the courts to use the expertise of the NBI in hotly contested criminal cases. That was precisely why he filed a motion invoking the wisdom and discretion of the trial court a quo to allow him, through the National Bureau of Investigation (NBI), to cause the conduct of questioned document examination of the papers, forms, and other instruments that were previously examined by the PNP Crime Laboratory at the behest of the private respondent without prior notice to or participation of the petitioner.
2. The petitioner doubted, and continues to doubt, the motives, intentions, and the conduct of the questioned document examination by the PNP Crime Laboratory at the behest of and in cahoots with the private respondent. There was apparently a conspiracy to pin down the petitioner as early as the fact-finding investigation stage at the PNP level. That was the reason why he filed a motion for an NBI questioned document examination before the trial court.
3. His intention was pure: To protect his human and constitutional rights to fair play, due process of law, and equal protection of the law. This is the spirit of full disclosure which is the very essence of fair, just, open and credible judicial proceedings.
4. It is interesting to ask: Why are the People of the Philippines and the private respondent taking a very hard line on this harmless procedural issue? Is there something that a new NBI questioned document examination might discover and reveal which might be adverse to their theory of culpability of the petitioner? If the People of the Philippines and the private respondent intend to see that real and true justice is done in this case, without unduly delaying the underlying criminal case a quo, why are they fighting, tooth and nail, this very harmless procedural evidentiary issue all the way to the Supreme Court?
5. The humble, sincere and determined stance of the petitioner in raising this very crucial procedural issue all the way from the trial court level up to the Supreme Court level shows one things: That he is not hiding anything and that he courageously and sincerely wants a full disclosure and examination of all the relevant and material evidence, pro and con, to see to it that genuine justice is administered in the criminal case a quo.
6. Moreover, how can the petitioner ably and competently rebut, contradict, and weaken an antagonistic expert witness except through another expert witness of an equal stature. He has the constitutional and statutory right to full disclosure and full presentation of evidence, pro and con, as an accused in a criminal case. To deprive him of the right to secure and present countervailing expert evidence (NBI questioned document examination) through an appropriate motion, which was in effect intended to preserve the sanctity of the rule of law and the administration of justice in the very first place, would be most unfair, unjust, and uncompassionate and would destroy the very spirit of fair play and justice.
7. It is instructive to summarize and discuss the recent case of JOEY P. MARQUEZ vs. THE SANDIGANBAYAN 5TH DIVISION and THE OFFICE OF THE SPECIAL PROSECUTOR, G.R. Nos. 187912-14, January 31, 2011.
The SB-5th Division denied Marquez’s Motion to Refer Prosecution’s Evidence for Examination by the Questioned Documents Section of the National Bureau of Investigation (NBI). From the records, as a result of the Report on the Audit of Selected Transactions and Walis Ting-ting for the City of Parañaque for the years 1996 to 1998, conducted by the Special Audit Team of the Commission on Audit (COA), several anomalies were discovered involving Marquez, then City Mayor and Chairman of the Bids and Awards committee of Parañaque City; and Ofelia C. Caunan (Caunan), Head of the General Services Office of said city. Before arraignment, on November 24, 2003, alleging discovery of the forged signatures, Mayor Marquez sought referral of the disbursement vouchers, purchase requests and authorization requests to the NBI and the reinvestigation of the cases against him. These were denied by the OSP. On July 4, 2008, Marquez filed the subject Motion to Refer Prosecution’s Evidence for Examination by the Questioned Documents Section of the National Bureau of Investigation. In his motion, he again insisted that his purported signatures on the vouchers were forged.
By way of Comment/Opposition to the motion, the prosecution argued that its’ documentary exhibits had already been formally offered in January 2006 and had been duly admitted by the anti-graft court. The prosecution added that, when confronted with the questioned transactions during the COA audit investigation, Marquez never raised the defense of forgery. Instead, he insisted on the propriety of the transactions. He did not claim forgery either when he filed his Joint Counter-Affidavit with the OMB. Also, in his verified Motion for Reconsideration dated May 29, 2003 and Supplemental Motion dated July 1, 2003 filed with the COA, no allegation of forgery was made. The prosecution pointed to Section 4, Rule 129 of the Revised Rules of Court and posited that since Marquez alleged in his pleadings that he had relied on the competence of his subordinates, there could be no “palpable mistake,” thus, he was estopped from alleging that his signatures on the subject documents were forged. The prosecution accused Marquez of filing the motion merely to delay the proceedings. In his Reply, Marquez insisted that he never admitted that his signatures on the disbursement vouchers, purchase requests and authorization requests were his and that his motion was not intended to delay the proceedings. In its’ Rejoinder, the prosecution reiterated its’ earlier arguments and added that Caunan testified and identified the signatures of Marquez in the subject vouchers. It further noted that Marquez moved to refer the documents to the NBI only two and a half (2 ½) years after the formal offer of said documents.
In the subject February 11, 2009 Resolution, the anti-graft court denied the motion of Marquez. Citing Section 22 of Rule 132 of the Rules of Court, it was of the view that while resort to the expert opinion of handwriting experts would be helpful in the examination of alleged forged documents, the same was neither mandatory nor indispensable, since the court can determine forgery from its own independent examination. The motion for reconsideration of Marquez was likewise denied. Aggrieved, Marquez interposed his petition for certiorari before the Supreme Court raising this lone: THAT THE PUBLIC RESPONDENT SANDIGANBAYAN - 5TH DIVISION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED ITS RESOLUTIONS RESPECTIVELY DATED FEBRUARY 11, 2009 AND MAY 20, 2009 DENYING THE PETITIONER’S MOTION TO REFER PROSECUTION’S EVIDENCE FOR EXAMINATION BY THE QUESTIONED DOCUMENTS SECTION OF THE NATIONAL BUREAU OF INVESTIGATION WHICH DENIAL IS IN VIOLATION OF HIS RIGHT TO PRESENT EVIDENCE AND HIS TWIN CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF LAW.
In fine, the Supreme Court held that one of the most vital and precious rights accorded to an accused by the Constitution is due process, which includes a fair and impartial trial and a reasonable opportunity to present one’s defense. It stated that under Section 14, Article III of the 1987 Constitution, it is provided that:
No person shall be held to answer for a criminal offense without due process of law.
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (emphasis supplied)
The Supreme Court stated that in the aforecited case, it was well settled that due process in criminal proceedings requires that (a) the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing.
It added that while the Constitution does not specify the nature of this opportunity, by necessary implication, it means that the accused should be allowed reasonable freedom to present his defense if the courts are to give form and substance to this guaranty. Should the trial court fail to accord an accused reasonable opportunity to submit evidence in his defense, the exercise by the Court of its certiorari jurisdiction is warranted as this amounts to a denial of due process, the Supreme Court held.
In the said case, the defense interposed by the accused Marquez was that his signatures in the disbursement vouchers, purchase requests and authorizations were forged. It is hornbook rule that as a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery. Marquez bears the burden of submitting evidence to prove the fact that his signatures were indeed forged. In order to be able to discharge his burden, he must be afforded reasonable opportunity to present evidence to support his allegation. This opportunity is the actual examination of the signatures he is questioning by no less than the country’s premier investigative force – the NBI. If he is denied such opportunity, his only evidence on this matter is negative testimonial evidence which is generally considered as weak. And, he cannot submit any other examination result because the signatures are on the original documents which are in the control of either the prosecution or the graft court.
The Supreme Court assured that, at any rate, any finding of the NBI would not be binding on the graft court. It would still be subject to its scrutiny and evaluation in line with Section 22 of Rule 132. Nevertheless, Marquez should not be deprived of his right to present his own defense, it added. How the prosecution, or even the court, perceives his defense to be is irrelevant. To them, his defense may seem feeble and his strategy frivolous, but he should be allowed to adduce evidence of his own choice. The court should not control how he would defend himself as long as the steps to be taken will not be in violation of the rules.
The Supreme Court stated that contrary to the assertion of the prosecution, this move of Marquez was not a mere afterthought to delay the prosecution of the case. From the records, it appeared that as early as November 24, 2003, even before arraignment, upon his alleged discovery of the forged signatures, Marquez already sought referral of the disbursement vouchers, purchase requests and authorization requests to the NBI and reinvestigation of the cases against him. At that stage, his plea was already denied by the Office of the Special Prosecutor (OCP).
Apparently, Marquez did not abandon his quest, the Supreme Court stated. In his Omnibus Motion dated April 1, 2008 filed with the SB-4th Division, Marquez did not only move for the inhibition of Justice Ong and Justice Hernandez, but also moved for the referral of the disbursement vouchers, purchase requests and authorization to the NBI. Since the latter was not acted upon, he filed the subject Motion to Refer Prosecution’s Evidence for Examination by the Questioned Documents Section of the National Bureau of Investigation reiterating his plea, this time with the SB-5th Division, it added.
If the case had been delayed, the Supreme Court held, it was because of the denial of the simple request of Marquez. If it was granted in the first instance, the trial of the case would have proceeded smoothly and would have been over by now. If the Court were to deny this petition and Marquez would be convicted for having failed to prove forgery, he could not be prevented from crying that he was prevented from presenting evidence in his defense.
The Supreme Court stressed that the fact that Marquez did not raise this issue with the COA is immaterial and irrelevant. His failure or omission to do so may affect the appreciation and weight of his defense, but it should not bar him from insisting on it during his turn to adduce evidence, it added.
The Supreme Court continued that in denying Marquez’ motion, the SB-5th Division offered no valid explanation other than the fact that, being the trial court, it may validly determine forgery from its own independent examination of the documentary evidence. While it was true that the appreciation of whether the signatures of Marquez were genuine or not was subject to the discretion of the graft court, this discretion, by the very nature of things, may rightly be exercised only after the evidence was submitted to the court at the hearing. Evidence cannot properly be weighed if not exhibited or produced before the court. Only after evidence was offered and admitted that the court could appreciate and evaluate it. The prosecution had already offered its evidence on the matter. The court should not deny the same right to the defense, the Supreme Court added.
The fact that the documentary exhibits were already formally offered and duly admitted by the anti-graft court could not preclude an examination of the signatures thereon by the defense. With proper handling by court personnel, this can easily be accomplished by the NBI expert examiners, the Supreme Court stated.
It is noteworthy to stress the philosophy stated by the Supreme Court in the said case, that is, in the conduct of its proceedings, a court is given discretion in maintaining the delicate balance between the demands of due process and the strictures of speedy trial on the one hand, and the right of the State to prosecute crimes and rid society of criminals on the other. Indeed, both the State and the accused are entitled to due process. However, the exercise of such discretion must be exercised judiciously, bearing in mind the circumstances of each case, and the interests of substantial justice.
Thus, for having denied Marquez the opportunity to be heard and to produce evidence of his choice in his defense, the SB-5th Division committed grave abuse of discretion warranting intervention from the Supreme Court, it stated. The anti-graft court should allow him to refer the evidence of the prosecution to the Questioned Documents Section of the NBI for examination at the soonest time possible and for the latter to immediately conduct such examination and to submit the results to the court within a reasonable time, it added.
8. In another recent case, i.e, MARIA LOURDES TAMANI, et. al. vs. ROMAN SALVADOR and FILOMENA BRAVO, G.R. No. 171497, April 4, 2011, the Supreme Court reversed the Court of Appeals in the matter of the appreciation of questioned document examination reports. The CA’s judicial appreciation of the questioned documents was poor and unreliable.
In that case, the CA, after examining the questioned signature and standard signatures of Tamani ruled that “although there are slight dissimilarities between them, one could not ignore the glaring and striking similarities of strokes and pattern of handwriting in the questioned and standard signatures of Demetrio Tamani. We opine that the similarities of strokes are more prominent and pronounced than the dissmilarities and the apparent dissimilarities are overshadowed by the striking similarities in the questioned and the standard signatures.”
The Supreme Court stated that indeed, at first glance, it was easy to see why the CA ruled the way it did, considering the presence of similarities between the questioned signature and standard signatures of Tamani. However, after painstakingly reviewing the testimonies of the expert witnesses and the documentary evidence at hand, the Supreme Court was more inclined to believe that the signature of Tamani appearing on the August 17, 1959 Deed of Sale was forged as could be gleaned from the testimony of Sorra, the document examiner from the PNP Crime Laboratory.
The Supreme Court noted that Sorra testified that the questioned signature was executed in a slow and drawn manner, while the standard signatures were executed in a fast manner. Moreover, the line quality of the questioned signature, particularly the letters “o,” “m” and “n” exhibited hesitation and patchings, while the standard signatures exhibited equal distribution of ink line and had good line quality. In addition, the lateral spacing of the questioned signature was crumpled, while the lateral spacing of the standard signature is normal. Particularly, the chart below illustrates the specific differences noted by Sorra in her testimony, the Supreme Court stated, thus:
| Letter | Questioned Signature | Standard Signatures |
| Capital letter D | Exhibit movement impulse | Continuous and fluent |
| Letter E | No initial stroke | Connected and has a small initial stroke |
| Letter M | First hump is rounded | First hump is pointed and angular |
| Letter T | “T-crossing” located at middle letter t | “T-crossing” is above the middle of the letter t |
| Letter O | Constricted and patched | O is Very obvious |
| Letter M | Patched- after the first hump there is a small stroke | Three humps |
| I dot | Long and slanting to the right | Smaller and slanting to the left |
| Letter N | Connected with letter a and has only one hump | Two humps |
| Terminal stroke | Tendency to go to the right and is fluent | Tendency to go upward |
The Supreme Court stated that during cross-examination, Sorra explained that the differences she accounted for were not “variations,” which are normal and usual deviations. She explained that variations were attributable to the fact that humans are not machines, such that it would be impossible to have two perfectly identical handwriting samples. Instead, Sorra clarified that the differences were “different” based on the hesitation in writing in the questioned signature. Sorra was steadfast that the similarities between the questioned signature and the standard signatures is attributable to the fact that the case involved a “simulated forgery” or a copied forgery, such that there would be similarities, but the similarities would be superficial.
The Supreme Court held that the value of the opinion of a handwriting expert depends not upon his mere statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer. It held that while it admittedly was unable to fully comprehend all the differences noted by Sorra given that her testimony was fairly technical in nature and description, it would, however, not be amiss to state that this Court had observed a good number of the differences noted by her. Moreover, while it was not unmindful of the testimony of Albacea, the document examiner from the NBI, this Court was more inclined to believe the findings of Sorra, because unlike Albacea, Sorra limited her examination to Exhibits “S-1 to S-11” and “S-19.” Albacea, on the other hand, considered all 19 specimen signatures. Noticeably, Exhibits “S-12” to “S-18” were executed several years apart from the questioned signature which was supposedly written in 1959. However, the dates of execution of Exhibits “S-12” to “S-18” covered years ranging from 1933 to 1952 and 1974. Thus, the Supreme Court held that Sorra was correct when she opted to disregard the said Exhibits in her examination. Lastly, while it was improper for the RTC to rely solely on Sorra’s credentials, her superior credentials, compared to that of Albacea, give added value to her testimony.
9. FINALLY, THERE IS A NEED TO SUSPEND THE DEFENSE EVIDENCE PRESENTATION STAGE PENDING COMPLETION AND SUBMISSION BY THE NBI OF ITS DOCUMENT AND HANDWRITING EXAMINATION REPORT TO THE TRIAL COURT.
WHEREFORE, premises considered, it is respectfully prayed that the questioned Decision of the Court of Appeals, dated x x x, and its questioned Resolution, dated x x x, be VACATED and SET ASIDE and a new one issued ALLOWING the conduct of an NBI document and handwriting examination of all the relevant and material documents in re: the underlying criminal cases in the trial court a quo, subject to such terms and conditions and/or guidelines as this Honorable Court and/or the trial court may prescribe; AND, further, SUSPENDING the defense evidence presentation stage pending completion and submission by the NBI of its document and handwriting examination report to the trial court.
Further, the petitioner humbly prays for such and other reliefs and remedies as may be deemed just and equitable in the premises.
Las Pinas City, August 5, 2011.
LASERNA CUEVA-MERCADER
LAW OFFICES
Counsel for the Petitioner/Accused
Unit 15, Star Arcade, C.V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel/Fax 8462539, 8725443.
MANUEL J. LASERNA JR.
Roll No. 33640, April 27, 1985
IBP Lifetime Member No. 1907
IBP Leyte Chapter
MCLE Compliance No. IV-1326, 2/3/11
PTR No. 10116909, 1/7/11, Las Pinas
x x x ."
