RULE ON EXAMINATION OF A CHILD WITNESS

Introduction
By virtue of the rule-making power granted to the Supreme Court emanating from the Constitution together with our countrys adoption , as the 31st signatory , the United Nations Convention of Human Rights of the Child (Convention) which embodies an allinclusive affirmation and worldwide recognition of Childrens rights, our Supreme Court promulgated the rule on Examination of the Child

Witness (Rule) which acknowledges the special concerns of the Child witnesses that need to be addressed while testifying before the criminal, civil, legislative, or administrative proceeding. (comments from April A. Gerero on the Justice Oscar Herreras book on COMMENTS ON THE RULE ON EXAMINATION OF A CHILD WITNESS)

Before the passing the Convention on the Rights of the Child, the same commentator quoted Justice Puno on the the doctrine of Best Interest of the Child enshrined in its reform initiatives for children The standard of best interest of the child in the system of adjudication for youthful offenders can be sustained by doctrine of parens patriae, or the important duty of the government to act for the State as guardian of the rights of the people.

Theaforementioned author also identified the five important laws that were created in relation with the thrust of the said convention namely: a. Republic Act No. 7610 (Act providing for a strong deterrence and Special Protection against Child Abuse ,Exploitation, And for Other Purposes) b. Presidential Decree No. 603 (Child and Youth Welfare Code)

c. Republic Act No. 9262 (VAWC) d.Republic Act No. 9344 (Act establishing A Comprehensive Juvenile Justice and Welfare System ) e. Republic Act No. 8369 (Act establishing Family Courts , Granting them Exclusive Original Jurisdiction Over The Child And Family Cases, Amending Batas Pambansa 129

RULE ON THE EXAMINATION OF A CHILD WITNESS

DATE OF EFFECTIVITY: Rule shall take effect on December 15, 2000 following its publication in two (2) newspapers of general circulation.

Sec.1 APPLICABILITY Unless otherwise provided , this rule shall govern the examination of child witnesses who are: 1. VICTIMS of a Crime 2. ACCUSED of a Crime 3. WITNESS to Crime.

Sec.2 OBJECTIVES Applies in ALL criminal proceedings and non-criminal proceedings involving child witnesses. 1. create and maintain an environment that will allow children to give reliable and complete evidence. 2.minimize trauma to children 3. encourage children to testify in legal proceedings 4. facilitate the ascertainment of truth.

Sec. 3 CONSTRUCTION OF THE RULE Liberally construed to uphold the best interests of the child and to promote maximum accommodation of the child witness without prejudice to the constitutional rights of the accused.

Sec.4 DEFINITIONS
A. Child Witness:any person who at the time of giving testimony is below the age of eighteen (18) years *In child abuse cases:a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.

B.Child abuse : physical, psychological or sexual abuse and criminal neglect as defined inRepublic Act No. 7610and other related laws. C. Facilitator: means a person appointed by the court to pose questions to a child.

E. Guardian ad litem: a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child. F. Support person: a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him.

G.Best interests of the child:the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development.It also means the least detrimental available alternative for safeguarding the growth and development of the child.

H.Developmental level:refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities.

I.In-depth investigative interviewordisclosure interview: inquiry or proceeding conducted by duly trained members of a multi-disciplinary team orrepresentatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed.

Sec.5 (a) Guardian ad litem (Who appoints and appointment is made?) How

The court may appoint a guardianad litemfor a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child

How? In making the appointment, the court shall consider the background of the guardianad litem his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. *The guardianad litemmay be a member of the Philippine Bar

However,A person who is a witness in any proceeding involving the child cannot be appointed as a guardianad litem.

What shall he do?

Sec. 5 (b) (1) shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates; (2) shall make recommendations to the court concerning the welfare of the child; (3) shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications;

(4) shall marshal and coordinate the delivery of resources and special services to the child; (5) shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; (6) shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved;

(7) may remain with the child while the child waits to testify; (8) may interview witnesses; and (9) may request additional examinations by medical or mental health professionals if there is a compelling need therefor.

(c )The guardianad litemshall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to Sections 9, 10, 25, 26, 27 and 31(c). Sec.9.Interpreter for child. Sec.10.Facilitator to pose questions to child. Sec. 25. Live-link television testimony in criminal cases where the child is a victim or a witness. Sec. 26. Screens, one-way mirrors, and

(d) The guardianad litemmay communicate concerns regarding the child to the court through an officer of the court designated for that purpose. (e) The guardianad litemshall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardianad litem, unless the court finds it necessary to promote the best interests of the child.

(f) The guardianad litemshall be presumed to have acted in good faith in compliance with his duties described in Sub-section (b).

Sec.6. Competency
Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child,motu proprioor on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

(a) Proof of necessity: A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. . (b) Burden of proof: To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence.

c) Persons allowed at competency examination: Only the following are allowed to attend a competency examination: (1) The judge and necessary court personnel; (2) The counsel for the parties; (3) The guardianad litem; (4) One or more support persons for the child; and (5) The defendant, unless the court

(d) Conduct of examination: Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child.

(e) Developmentally appropriate questions: The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully.

(f) Continuing duty to assess competence: The court has the duty of continuously assessing the competence of the child throughout his testimony.

Sec.7. Oath or affirmation

Before testifying, a child shall take an oath or affirmation to tell the truth.

Sec.8. Examination of a child witness

The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardianad litemof such child witness may, however, move the court to allow him to testify in the manner provided in this

Sec.9.Interpreter for child

(a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court,motu proprioor upon motion, to interpret for the child.

(b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. (c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation.

Sec.10.Facilitator to pose questions to child

(a) The court may,motu proprioor upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative.

(b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel.

(c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel.

Sec.11. Support persons:

(a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (1) Both support persons shall remain within the view of the child during his testimony.

(2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. (3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings.

(4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony.

Sec.13. Courtroom environment

The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child.

The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand.The judge need not wear his judicial robe.

Includes: Sec.23. Excluding the public Sec. 24. Persons prohibited from entering and leaving courtroom. Sec. 25. Live-link television tersimony in criminal cases where the child is a victim or a witness. Sec.26. Screens, one-way mirrors, and other devices to shield child from accused

Sec.14. Testimony during appropriate hours: The court may order that the testimony of the child should be taken during a time of day when the child is wellrested. Sec.15. Recess during testimony: The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level.

Sec. 16. Testimonial aids: The court shall permit a child to use dolls, anatomicallycorrect dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony. Sec. 17. Emotional security item: While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll.

Sec. 18. Approaching the witness Sec.19. Mode of questioning: The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth; (2) ensure that questions are stated in a form appropriate to the developmental level of the child; (3) protect children from harassment or undue embarrassment; and

(4) avoid waste of time. The court may allow the child witness to testify in a narrative form. Sec.20. Leading questions Sec. 21. Objections to questions Sec. 22. Corroboration

Sec. 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:

(a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for crossexamination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the

(b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficientindiciaof reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was

(5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declarant 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 declarant child misrepresented the involvement of the accused.

(c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted

(in relation to previous provision) Sec. 29. Admissibility of videotaped and audiotaped in-depth investigative or disclosure interviews in child abuse cases

Sec. 30. Sexual abuse shield rule: (a) Inadmissible evidence.The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual predisposition of the alleged victim.

(b) Exception.Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible.

Sec. 31. Protection of privacy and safety

seal. Except upon written request and order of the court, a record shall only be released to the following: (1) Members of the court staff for administrative use; (2) The prosecuting attorney; (3) Defense counsel; (4) The guardianad litem; (5) Agents of investigating law enforcement agencies; and (6) Other persons as determined by the court.

(b) Protective order.Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: (1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardianad litem. (2) No tape, or any portion thereof, shall be divulged by any person mentioned in Subsection (a) to any other person, except as necessary for the trial.

(3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court.

(4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice:

Effects of Sexual Acts and abuses on children

Though there was not sufficient data that can be gleaned from the cases decided by the Supreme Court, we have resorted to a research entitled An Interdisciplinary Analysis of Philippine Jurisprudence on Child Sexual Abuse, Adhikain Para sa Karapatang Pambata by Ateneo Human Rights Center; United Nations Childrens Fund Philippines additional information that may give us more

symptoms found to be exhibited by child victims.

1. They may become fearful and lose their appetite (People vs. Melivo, G.R. No. 113029, February 8, 1996; People vs. Mangalino G.R. No. 79011, February 15, 1990; People vs. Garcines, G.R. No. L32321, June 28, 1974) 2.Some may become pensive, stop playing with other children and stop tidying herself

3. sexually abused children view their experience as overwhelmingly sad and painful, irrevocably damaged by the experience. They felt angry and betrayed. (Carandang study,1996)

Additional information from the research paper includes victims reaction to sexual abuse that is also worth noting. (KendallTacket, Williams & Finkhor, 1993 as cited in Papalia & Olds, 1998) Age Preschool (3-6 yrs.) Most Common Symptoms Anxiety Nightmares

School-age children (7 - 12 yrs.) Aggression Nightmares School problems Hyperactivity

Fear

Mental illness

Adolescents (13 - 20 yrs.) injurious behaviors

Depression Withdrawn, suicidal or self-

Physical complaints Illegal acts Running away Substance abuse