Dear PAO,

My father has been accused of allegedly raping a child. However, throughout the trial, the child, who is the sole witness to the alleged crime, was not available for cross-examination. Is her testimony admissible in evidence?

Jhamil

Dear Jhamil,

As a general rule, a statement of a witness given under oath and offered as evidence against a party who was not afforded an opportunity to cross-examine the former is considered a hearsay and is, thus, inadmissible. This principle was established in Patula vs People, GR.164457, April 11, 2012, written by then Associate Justice Honorable Lucas Bersamin. One exception to this rule is the testimony of a child witness, provided that it is corroborated by other admissible evidence. Section 28 (d) of AM 004-07-SC dated Nov. 21, 2000, otherwise known as the Rule on Examination of Child Witness, issued by the Supreme Court provides:

“Section 28. Hearsay exception in child abuse cases. – A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

x x x

“(d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence.”

This is further explained by the Supreme Court in its decision in the case of People vs XXX258054, GR 258054, Oct. 25, 2023, penned by Honorable Associate Justice Mario Lopez, thus:

“Since the prosecution witnesses did not know the exact whereabouts of AAA258054 and had no communication with her, the prosecution invoked Section 28 of A.M. No. 004-07-SC or the Rule on Examination of a Child Witness (Rule) which expressly allows the admission of hearsay testimony of a child describing any act or attempted act of child abuse when: (1) the child is unavailable due to death, physical infirmity, lack of memory, mental illness, or they will be exposed to psychological injury, or they are absent from the hearing and the proponent of their statement is unable to procure their attendance by process or other reasonable means; and (2) their hearsay testimony is corroborated by other admissible evidence.

“In ruling on the admissibility of the child’s statement, the court considers the time, content, and other circumstances that provide sufficient indicia of reliability of the statement, such as: (1) whether there is a motive to lie; (2) the general character of the child; (3) whether more than one person heard the statement; (4) whether the statement was spontaneous; (5) the timing of the statement and the relationship between the child and the witness; ( 6) cross-examination could not show the lack of knowledge of the child; (7) the possibility of faulty recollection of the declarant child is remote; and (8) the circumstances surrounding the statement are such that there is no reason to suppose the child misrepresented the involvement of the accused.

“With the best interests of the child in mind, an exception to the general rule that hearsay evidence is inadmissible was created in Section 28 of the Rule to ensure that cases of child abuse or attempted child abuse could still be tried notwithstanding the unavailability of the child. It seeks to ascertain truth and prevent miscarriage of justice that may result from the unavailability of the child-including the child’s enforced absence from the hearing to prevent them from testifying against their abuser, as in the present case. It cannot be gainsaid that children are especially vulnerable. The State, through its laws, must protect them from all forms of abuse and exploitation. Through the doctrine of unavailable child, child victims can secure justice for abuses perpetrated against them even if they are unable to testify in court. The requirement that other admissible evidence corroborate the child’s hearsay testimony ensures that the accused’s right to due process is not violated. Moreover, the prosecution still has to discharge the burden of proving the accused’s guilt beyond reasonable doubt.”

Applying these principles to your case, it is clear that the testimony of that child witness may be admissible in evidence if the court considers the circumstances indicating reliability as mentioned above. However, such testimony must be corroborated by other admissible evidence to ensure a fair balance between the State’s duty to protect children from abuse and the constitutional right of the accused to due process.

We hope that we are able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]