The Katrina Halili vs. Hayden Kho case: What is a demurrer to evidence? Could Hayden be forced to testify in court?

The RA 9262 “psychological violence” case filed by Katrina against Hayden was dismissed yesterday by Judge Rodolfo Bonifacio of Branch 159 of the Regional Trial Court of Pasig City. Let’s take a look at some of the legal issues involved:

What is a “Demurrer to Evidence”?

The Pasig City RTC granted the “Demurrer to Evidence” filed by Hayden’s lawyer. In brief, a “demurrer to evidence” is a motion to dismiss the case for lack of sufficient evidence to convict the accused. This is governed by Section 23, Rule 119 of the Rules on Criminal Procedure. The said section states:

SEC. 23. Demurrer to evidence.—After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.

The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.

If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.

Procedure in filing a demurrer to evidence

The defense lawyer must ask the express leave (permission) of the court before filing a “Demurrer to Evidence.” The procedure is:

After the prosecution has formally rested its case, the defense lawyer, in open court, requests the express permission of the judge to file a demurrer. Once the judge gives such permission, the defense lawyer will within the period time approved by the judge file the demurrer. Copy of the demurrer must be furnished to the prosecution (the fiscal and/or the private prosecutor) which may submit its comments or opposition to the demurrer.

Or, the defense lawyer can submit to the court a “Motion to file demurrer to evidence with express leave of court”. Attached to such motion is the demurrer to evidence.

What happens if f the demurrer to evidence is denied?

If the judge denies the demurrer, then the trial continues and the defense must present its evidence.

What happens if the demurer to evidence is granted? What is “double jeopardy”?

If the judge grants the demurrer, then the case is dismissed (in other words, the accused is declared not guilty). No motion for reconsideration or appeal to a higher court is allowed since this would violate the Constitutional prohibition against “double jeopardy”. This term simply means that an accused who has been tried and found not guilty of a crime by a court of competent jurisdiction cannot be held for trial again for the same offense. (You might recall the 1999 movie starring Ashley Judd and Tommy Lee Jones about a woman accused of murdering her husband; the movie revolved around the issue of double jeopardy.)

Why does our Constitution provide that an accused cannot be placed in double jeopardy? Well, without such provision, an accused can be brought to trial again and again and again, ad infinitum. The only exception in the history of the Philippines is the Aquino-Galman double murder case; despite the acquittal of the accused, the Supreme Court allowed the retrial because of the connivance between the judge and the defense.

Could Hayden been forced to testify by the prosecution? Could the defense refuse to present him as a witness for himself?

As I stated above, if the court denied the demurrer, the trial would continue and the defense must present its evidence.

1. Could Hayden been forced, either by the judge or by the prosecution, to take the witness stand? No, because our Constitution provides that a person cannot be compelled to testify against himself.

2. Could the defense refuse to present Hayden to testify on his behalf? Yes. This is provided under Section 1 of Rule 115. The refusal of the accused to take the witness stand cannot be taken against him. No inference of guilt can be drawn for his refusal to testify.

Note: One news story, reporting on the dismissal of the case, stated in its lead that “Hayden Kho is now a free man.” This is totally inaccurate in view of the Constitutional provision on the presumption of innocence of the accused. Any person accused of a crime is presumed innocent until and unless the State has proven his guilt beyond reasonable doubt.