Ruling

In his appeal before the Court, Malacaman essentially asserts that the prosecution failed to prove his guilt beyond reasonable doubt because: (i) of his supposedly irregular and suggestive out-of-court identification and (ii) that the testimony of the prosecution’s two eyewitnesses is not reliable or credible.²²

After a judicious review of the case, the Court acquits Malacaman based on reasonable doubt.

At its core, the issue raised by Malacaman pertains to his identification as the perpetrator of the crime. In this connection, the Court has declared that “‘[t]he greatest care should be taken in considering the identification of the accused, especially when this identification is made by a sole witness and the judgment in the case totally depends on the reliability of the identification.’ This stems from the recognition that testimonial evidence, unlike other forensic evidence such as fingerprint and DNA testing which are real or object evidence, are subject to human errors which may be intentional or unintentional.”²³

Citing People v. Nuñez²⁴ and People v. Teehankee, Jr.,²⁵ the Court in People v. Ansano²⁶ (Ansano) held:

The frailty of human memory is a scientific fact. The danger of inordinate reliance on human memory in criminal proceedings, where conviction results in the possible deprivation of liberty, property, and even life, is equally established.

 

Human memory does not record events like a video recorder. In the first place, human memory is more selective than a video camera. The sensory environment contains a vast amount of information, but the memory process perceives and accurately records only a very small percentage of that information. Second, because the act of remembering is reconstructive, akin to putting puzzle pieces together, human memory can change in dramatic and unexpected ways because of the passage of time or subsequent events, such as exposure to “postevent” information like conversations with other witnesses or media reports. Third, memory can also be altered through the reconstruction process. Questioning a witness about what he or she perceived and requiring the witness to reconstruct the experience can cause the witness’ memory to change by unconsciously blending the actual fragments of memory of the event with information provided during the memory retrieval process.

Eyewitness identification, or what our jurisprudence commendably refers to as “positive identification,” is the bedrock of many pronouncements of guilt. — However, eyewitness identification is but a product of flawed human memory. In an expansive examination of 250 cases of wrongful convictions where convicts were subsequently exonerated by DNA testing, Professor Brandon Garett (Professor Garett) noted that as much as 190 or 76% of these wrongful convictions were occasioned by flawed eyewitness identifications. Another observer has more starkly characterized eyewitness identifications as “the leading cause of wrongful convictions.”

 

…

 

The bifurcated difficulty of misplaced reliance on eyewitness identification is borne not only by the intrinsic limitations of human memory as the basic apparatus on which the entire exercise of identification operates. It is as much the result of and is exacerbated by extrinsic factors such as environmental factors, flawed procedures, or the mere passage of time.

 

In another case, the Court acknowledged that:

 

Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences.²⁷

The Court has thus adopted the totality of circumstances test to gauge the reliability of an accused’s out-of-court identification. On this point, the Court further held in Ansano:

Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz.: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification procedure….

 

Essentially, the problem with eyewitness testimony is that the human mind is not just limited in terms of perception, but that human memory is also highly susceptible to suggestion. Hence, the jurisprudence on the matter… dealt with the propriety of police procedures employed to arrive at the identification of the accused. The rule that was thereafter adopted was that “convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” It was explained that “[s]uggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.”²⁸ (Emphasis in original; citations omitted)

Based on the foregoing, the totality of circumstances test has six fundamental criteria to gauge the reliability of an accused’s out-of-court identification, i.e., (1) the witness’s opportunity to view the criminal at the time of the crime; (2) the witness’s degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure. Based on the foregoing principles, the Court finds that there is reasonable doubt in Malacaman’s identification as one of the perpetrators of the crime charged.

In the case at bar, Malacaman’s identification as the perpetrator of the crime turns on the testimony of SPO1 Barnuevo who categorically stated that Malacaman was one of the two persons who shot him and PSINSP Ginauli. SPO1 Barnuevo’s account was then corroborated by Secillano’s own testimony.

The first two criteria under the totality of circumstances test pertain to the witness’s opportunity to view the criminal during the commission of the crime and the witness’s degree of attention at that time. Here, SPO1 Barnuevo and PSINSP Ginauli were suddenly ambushed by two armed men who opened fire into their car. The record shows that SPO1 Barnuevo was distracted at the time. His attention was directed to PSINSP Ginauli as he was handing the latter’s phone back to her. SPO1 Barnuevo then suffered four gunshot wounds, including one to his head.²⁹ To the Court’s mind, these circumstances fail to show that SPO1 Barnuevo had the opportunity to recognize the assailants.

The third criterion is the accuracy of any prior description given by the witness. Here, the record notably lacks any prior description given by either SPO1 Barnuevo or Secillano. Consequently, there was nothing that could have allowed the Court to ascertain how the two witnesses were able to recognize Malacaman as one of the perpetrators when they were presented with the PNP’s rogues’ gallery.

With respect to the fourth and fifth criteria, both SPO1 Barnuevo and Secillano apparently displayed a reasonable level of certainty when they identified Malacaman during the trial. Moreover, it does not appear that a substantial period had elapsed between the crime and when SPO1 Barnuevo and Secillano were shown photographs of suspects in the PNP’s rogues’ gallery.

Finally, as regards the sixth criterion, there is a dearth of evidence on how Malacaman’s photograph was included in the PNP’s rogues’ gallery. Worse still, the police officer who supposedly presented SPO1 Barnuevo and Secillano with the rogues’ gallery failed to testify on how the presentation was conducted.³⁰ Further, Secillano testified that during Malacaman’s out-of-court identification, he was told by the PNP officer that “the person depicted in the photograph [i.e., Malacaman] was [the PNP’s] suspect in [the] crime.”³¹ To the Court’s mind, these circumstances point to an out-of-court examination that was unduly suggestive.

In Balina v. People,³² the Court declared that “reasonable doubt is defined as that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt.”³³ Accordingly, the following circumstances stand out against a judgment of conviction: (i) SPO1 Barnuevo’s recognition of Malacaman’s face despite the former suffering four gunshot wounds, including one to his head; (ii) the PNP officer telling Secillano during Malacaman’s out-of-court identification that the latter was a suspect in the crime; and (iii) the utter lack of evidence on how Malacaman’s photograph appeared in the PNP’s rogues’ gallery and how the rogues’ gallery was presented to the witnesses to identify Malacaman.

In this connection and to quote the Court in Tuason v. Court of Appeals:³⁴

[I]n some cases the emotional balance of the eyewitness is disturbed by her experience that her powers of perception becomes distorted and her identification is frequently most untrustworthy. Into the identification, enter other motives, not necessarily stimulated originally by the accused personally — the desire to requite a crime, to find a scapegoat, or to support, consciously or unconsciously, an identification already made by another.³⁵ (Citation omitted)

Hence, taking all the foregoing circumstances together, there is reasonable doubt that Malacaman is the perpetrator of the crime charged. He must perforce be acquitted.

Final note

The proper identification of the accused is one of the pillars in any criminal prosecution. And like all elements of a crime, the accused’s identity as the perpetrator of the crime is a fact that must be proven beyond a reasonable doubt. The instant case highlights the indispensable role of out-of-

court identification in establishing the proper foundation for, and probative weight of, in-court identification. Regrettably, even while the events subject of the instant case happened over 15 years ago, formal guidelines on the out-of-court identification of a suspect in a police investigation have yet to be codified in the PNP Manual of Operational Procedures. The “rogues gallery,” for example, was only mentioned in passing in the glossary of terms in relation to the word, “mugshot.”³⁶ In this case, logic and prudence should not be sacrificed on the altar of expediency simply to address the deeply human need to attach a face to the villain—to produce a culprit of the crime. Indeed, the lapses by the prosecution and law enforcement officers here were largely avoidable. To name a few: descriptions of the suspect could have been solicited before the rogues’ gallery was presented; a witness could have testified on how the rogues’ gallery was compiled and presented to the victim and witnesses; the police could have refrained from identifying Malacaman as a suspect while they were presenting the rogues’ gallery to Secillano. Consequently, let this case serve as a call to law enforcement agencies and prosecutors for the formal codification of out-of-court identification procedures and their proper presentation in court.

ACCORDINGLY, the appeal is GRANTED. The Decision dated September 14, 2020 of the Court of Appeals in CA-G.R. CR-H.C. No. 12523 is hereby REVERSED and SET ASIDE. Accused-appellant MARLON MALACAMAN is ACQUITTED of Robbery with Homicide under Article 294 of the Revised Penal Code, as amended. He is ORDERED IMMEDIATELY RELEASED from detention unless he is being lawfully held for another cause.

Let a copy of this Decision be furnished to the Director General of the Bureau of Corrections, Muntinlupa City for immediate implementation. The said Director General is ordered to report to this Court within five days from receipt of this Decision the action taken.

Let entry of judgment be issued immediately.

SO ORDERED.