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THE EVOLUTION AND ANATOMY OF THE PHILIPPINE RULE ON DNA EVIDENCE Peter P. Ng, M.D., LL.B., Ph.D.

* OUTLINE I. Introduction II. DNA According to the Philippine Supreme Court III. Introduction of DNA Evidence in Philippine Court Initially Received with Caution I . Admi!!i"ility of Scientific and #echnological Evidence . $andmar% Ca!e and other &uri!prudence on the Admi!!i"ility and Pro"ative alue of DNA Analy!i! a! Evidence I. Right Again!t Self 'Incrimination Applica"le to #e!timonial Evidence( not in o"taining DNA !ample! II. )oreign &uri!prudence on DNA Analy!i! Cited in Philippine Ca!e $aw! III. Salient Point! on the Rule on DNA Evidence I*. &uri!prudence laid down after the effectivity of the Rule on DNA Evidence *. Conclu!ion The la!t decade of foren!ic !cience ha! "een dominated "y geneticn analy!i!. $awyer! now focu! on Deo+yri"onucleic Acid ,DNA- te!ting to prove the guilt or innocence of tho!e accu!ed of crime!( pu!hing traditional techni.ue! !uch a! fingerprint analy!i! into the "ac%ground. DNA evidence ha! !tarted to play a "ig part in many nation!/ criminal 0u!tice !y!tem!. It ha! "een u!ed to prove that !u!pect! were involved in crime! and to al!o free people who were wrongly convicted. A! early a! 1234( DNA evidence wa! introduced in the 5nited State! of America ,5SA- and the 5nited 6ingdom ,56-. In 1237( DNA entered the 5S Courtroom for the fir!t time a! evidence in a trial( "ut it wa! not until 1233 that DNA evidence actually !ent !omeone to 0ail. #he high profile ca!e of 8.&. Simp!on in the 5SA i! an e+ample of a ca!e that DNA evidence wa! pre!ented to the Court( 8.&. Simp!on wa! then ac.uitted of the crime "eing charged. In the Philippine!( it wa! only in 9::9 where the Supreme Court of the Philippine! u!ed DNA Evidence in convicting the accu!ed "eyond rea!ona"le dou"t. I. INTRODUCTION 1.1. DNA Basics. DNA i! e!!entially an in!truction manual and "lueprint for everything in a "ody. A DNA molecule( a! ;at!on and Cric% de!cri"ed( i! a long twi!ting chain %nown a! a dou"le heli+. DNA i! made of only four "a!ic RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

nucleotide!< Adenine( Cyto!ine( =uanine( and #hymine. #he!e nucleotide! e+i!t a! "a!e pair! that lin% together li%e the rung! in a ladder. Adenine and thymine alway! "ond together a! a pair with dou"le "ond!( and cyto!ine and guanine "ond together a! a pair with triple "ond!. ;hile the ma0ority of DNA doe! not differ from human to human( !ome 4 million "a!e pair! of DNA ,a"out :.1: percent of your entire genome- vary from per!on to per!on. #hi! i! what ma%e! DNA evidence !o valua"le in inve!tigation! "ecau!e it i! almo!t impo!!i"le for !omeone el!e to have DNA that i! identical to one ha!( e+cept in identical twin!. In human cell!( DNA i! tightly wrapped into 94 pair! of chromo!ome!. 8ne mem"er of each chromo!omal pair come! from hi! mother( and the other come! from hi! father. In other word!( a per!on/! DNA i! a com"ination of hi! mother/! and hi! father/!. E+cept for identical twin( the DNA i! uni.ue to one!elf >ence( DNA analy!i! i! al!o very important in re!olving paternity di!pute!. 1.2. Advances in DNA Anal sis. DNA analy!i! i! a comple+ area of foren!ic !cience that relie! heavily on !tati!tical prediction!. In the early ca!e! in the 5nited State! where 0uror! were pre!ented with ream! of evidence heavily laden with mathematical formula!( it wa! ea!y for defen!e attorney! to create dou"t in 0uror!/ mind!. Since then( a num"er of advance! have allowed criminal inve!tigator! to perfect the techni.ue! involved and face down legal challenge! to DNA fingerprinting. Improvement! include< New te!ting procedure! ' R)$P ,Re!triction )ragment $ength Polymorphi!m- analy!i! re.uired large amount! of relatively high'.uality DNA. Newer procedure! re.uire far le!! DNA and can "e completed fa!ter. Source of DNA ' Science ha! devi!ed ingeniou! way! of e+tracting DNA from !ource! that u!ed to "e too difficult or too contaminated to u!e. E+panded DNA data"a!e! ' Several countrie!( including the 5nited State! and ?ritain( have "uilt ela"orate data"a!e! with hundred! of thou!and! of uni.ue individual DNA profile!. >owever( the!e data"a!e! al!o rai!e .ue!tion! a"out privacy. DNA hold! a lot more information a"out a per!on than fingerprint! do. )or e+ample( a per!on@! DNA include! information a"out everything from eye color to genetic defect!. Some people fear that the wide!pread u!e of DNA data"a!e! could encourage

government! to di!criminate again!t people "ecau!e of information encoded in their DNA. >owever( the DNA u!ed for the )?I@! C8DIS data"a!e i! not currently thought to correlate to a per!on@! actual trait!. #raining ' Crime la"! have developed formal protocol! for handling and proce!!ing evidence( reducing the li%elihood of contamination of !ample!. 8n the courtroom !ide( pro!ecutor! have "ecome more !avvy at pre!enting genetic evidence( and many !tate! have come up with !pecific rule! governing it! admi!!i"ility in court ca!e!. Science education ' In recent year!( a num"er of de"ate! have erupted around the world over i!!ue! li%e u!ing DNA evidence( cloning animal! or !elling genetically modified crop!. Since that time( cla!!room !tudy of DNA and it! propertie! ha! in many place! "ecome more in'depth and wide!pread . 1.!. Uses "# DNA Anal sis. $ocard/! Principle i! the corner!tone of )oren!ic !cience. According to Edmund $ocard( whenever there i! an interaction "etween the criminal !u!pect and the victim in the crime !cene( trace evidence will "e ta%en away or "e left "ehind in the crime !cene. #race evidence nece!!arily include! DNA evidence. DNA profile! are important in the criminal courtroom. DNA evidence i! u!ed "y criminal inve!tigator! to prove guilt "ecau!e matching DNA profile! can lin% a !u!pect to a crime or crime !cene( or e+onerate an innocent per!onA innocent people have "een freed from death row in the 5nited State! "a!ed on DNA evidence. So far( DNA evidence ha! "een almo!t a! u!eful in e+cluding !u!pect! a! in fingering and convicting themB a"out 4: percent of DNA profile compari!on! done "y the )?I in the 5SA re!ult in e+cluding !omeone a! a !u!pect. DNA evidence i! al!o u!eful in the civil courtroom in ca!e! of paternity di!pute!. Paternity te!ting and other ca!e! where authoritie! need to prove whether or not individual! are related. 8ther application! of DNA te!ting include< Identification of dead "odie! ' Police inve!tigator! often face the unplea!ant ta!% of trying to identify a "ody or !%eletal remain!. DNA i! a fairly re!ilient molecule( and !ample! can "e ea!ily e+tracted from hair or "one ti!!ueB once a DNA profile ha! "een created( it can "e compared to !ample! from familie! of mi!!ing per!on! to !ee if a match RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

can "e madeB Studying the evolution of human population! ' Scienti!t! are trying to u!e !ample! e+tracted from !%eleton! and from living people around the world to !how how early human population! might have migrated acro!! the glo"e and diver!ified into !o many different race!B Studying inherited di!order! ' Scienti!t al!o !tudy the DNA fingerprint! of familie! with mem"er! who have inherited di!ea!e! li%e AlCheimer/! Di!ea!e to try and ferret out chromo!omal difference! "etween tho!e without the di!ea!e and who are have it( in the hope! that the!e change! might "e lin%ed to getting the di!ea!e. II. DNA ACCORDIN$ TO THE PHILIPPINE %UPREME COURT DNA te!t ,or analy!i!- i! !ynonymou! to DNA typing( DNA fingerprinting( DNA profiling( genetic te!t!( and genetic fingerprinting. #he !cientific "a!i! of thi! te!t come! fir!t from the fact that our difference! a! individual! are due to the difference! in the compo!ition of our gene!. #he!e gene! compri!e a chemical !u"!tance( DNA or deo+yri"onucleic acid. In the 5nited State!( DNA te!t! have "een u!ed to convict perpetrator! of crime( a! well a! e+onerate innocent individual!. In :9 8cto"er 9::D( the Supreme Court of the Philippine! re!olved and acted on the recommendation of the Chairper!on and Eem"er! of the Su"committee on Evidence !u"mitting for the Court/! con!ideration and approval the propo!ed Rule on DNA Evidence( the Court Re!olved to APPR8 E the !ame. #he 9::D Rule! on DNA Evidence too% effect in 17 8cto"er 9::D after it! full pu"lication in a new!paper of general circulation. Section 4 of the Rule gave the following definition of term!< ,a- F?iological !ampleG mean! any organic material originating from a per!on/! "ody( even if found in inanimate o"0ect!( that i! !u!cepti"le to DNA te!ting. #hi! include! "lood( !aliva and other "ody fluid!( ti!!ue!( hair! and "one!B ,"- FDNAG mean! deo+yri"onucleic acid( which i! the chain of molecule! found in every nucleated cell of the "ody. #he totality of an individual/! DNA i! uni.ue for the individual( e+cept identical twin!B ,c- FDNA evidenceG con!titute! the totality of the DNA profile!( re!ult! and other genetic information directly generated from DNA te!ting of "iological !ample!B ,d- FDNA profileG mean! genetic information derived from

DNA te!ting of a "iological !ample o"tained from a per!on( which "iological !ample i! clearly identifia"le a! originating from that per!onB ,e- FDNA te!tingG mean! verified and credi"le !cientific method! which include the e+traction of DNA from "iological !ample!( the generation of DNA profile! and the compari!on of the information o"tained from the DNA te!ting of "iological !ample! for the purpo!e of determining( with rea!ona"le certainty( whether or not the DNA o"tained from two or more di!tinct "iological !ample! originate! from the !ame per!on ,direct identification- or if the "iological !ample! originate from related per!on! ,%in!hip analy!i!-B and ,f - FPro"a"ility of ParentageG mean! the numerical e!timate for the li%elihood of parentage of a putative parent compared with the pro"a"ility of a random match of two unrelated individual! in a given population. In a landmar% ca!e of People v. Vallejo1:( the Supreme Court En ?anc in a per curiam deci!ion !tated the following< DNA i! an organic !u"!tance found in a per!on/! cell! which contain! hi! or her genetic code. E+cept for identical twin!( each per!on/! DNA profile i! di!tinct and uni.ue ,#homp!on( 1222-. ;hen a crime i! committed( material i! collected from the !cene of the crime or from the victim/! "ody for the !u!pect/! DNA. #hi! i! the evidence !ample. #he evidence !ample i! then matched with the reference !ample ta%en from the !u!pect and the victim ,Swan!on( 122H-. #he purpo!e of DNA te!ting i! to a!certain whether an a!!ociation e+i!t! "etween the evidence !ample and the reference !ample ,Inman and Rudin( 122D-. #he !ample! collected are !u"0ected to variou! chemical proce!!e! to e!ta"li!h their profile ,Inman and Rudin 122D-. #he te!t may yield three po!!i"le re!ult!< 1- #he !ample! are different and therefore mu!t have originated from different !ource! ,e+clu!ion-. #hi! conclu!ion i! a"!olute and re.uire! no further analy!i! or di!cu!!ionB 9- It i! not po!!i"le to "e !ure( "a!ed on the re!ult! of the te!t( whether the !ample! have !imilar DNA type! RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

,inconclu!ive-. #hi! might occur for a variety of rea!on! including degradation( contamination( or failure of !ome a!pect of the protocol. ariou! part! of the analy!i! might then "e repeated with the !ame or a different !ample( to o"tain a more conclu!ive re!ultB or 4- #he !ample! are !imilar( and could have originated from the !ame !ource ,inclu!ion-. In !uch a ca!e( the !ample! are found to "e !imilar( the analy!t proceed! to determine the !tati!tical !ignificance of the Similarity. In a!!e!!ing the pro"ative value of DNA evidence( therefore( court! !hould con!ider( among other! thing!( the following data< how the !ample! were collected( how they were handled( the po!!i"ility of contamination of the !ample!( the procedure followed in analyCing the !ample!( whether the proper !tandard! and procedure! were followed in conducting the te!t!( and the .ualification of the analy!t who conducted the te!t!. In People v. Yatar,11 the Supreme Court En "anc in a per curiam deci!ion !tated the following< DNA i! a molecule that encode! the genetic information in all living organi!m! ,Sud"ery( 9::9-. A per!on/! DNA i! the !ame in each cell and it doe! not change throughout a per!on/! lifetimeB the DNA in a per!on/! "lood i! the !ame a! the DNA found in hi! !aliva( !weat( "one( the root and !haft of hair( earwa+( mucu!( urine( !%in ti!!ue( and vaginal and rectal cell! ,#urman( 9::1-. Eo!t importantly( "ecau!e of polymorphi!m! in human genetic !tructure( no two individual! have the !ame DNA( with the nota"le e+ception of identical twin!. I3J A$RJth 414K DNA print or identification technology ha! "een advanced a! a uni.uely effective mean! to lin% a !u!pect to a crime( or to e+onerate a wrongly accu!ed !u!pect( where "iological evidence ha! "een left. )or purpo!e! of criminal inve!tigation( DNA identification i! a fertile !ource of "oth inculpatory and e+culpatory evidence. It can a!!i!t immen!ely in effecting a more accurate account of the crime committed( efficiently facilitating the conviction of the guilty( !ecuring the ac.uittal of the innocent( and en!uring the proper admini!tration of 0u!tice in every ca!e. DNA evidence collected from a crime !cene can lin% a !u!pect to a crime or eliminate one from !u!picion in the !ame principle a! fingerprint! are u!ed. I3J A$RJth 414K Incident! involving !e+ual a!!ault would leave "iological

evidence !uch a! hair( !%in ti!!ue( !emen( "lood( or !aliva which can "e left on the victim/! "ody or at the crime !cene. >air and fi"er from clothing( carpet!( "edding( or furniture could al!o "e tran!ferred to the victim/! "ody during the a!!ault. I3J A$RJth 414K )oren!ic DNA evidence i! helpful in proving that there wa! phy!ical contact "etween an a!!ailant and a victim. If properly collected from the victim( crime !cene or a!!ailant( DNA can "e compared with %nown !ample! to place the !u!pect at the !cene of the crime. IPeople v. Vallejo, =.R. No. 1JJH7H( 2 Eay 9::9( 439 SCRA 129K

or her genetic code. Somewhere in the DNA framewor%( nonethele!!( are !ection! that differ. #hey are %nown polymorphic loci, which are the area! analyCed in DNA typing ,profiling( te!t!( fingerprinting( or analy!i!LDNA fingerprintingLgenetic te!t! or fingerprinting-. In other word!( DNA typing !imply mean! determining the polymorphic loci. >ow i! DNA typing performedM )rom a DNA !ample o"tained or e+tracted( a molecular "iologi!t may proceed to analyCe it in !everal way!. #here are five ,7- techni.ue! to conduct DNA typing. #hey are< the RF P !restriction "ragment length polymorphism#$ reverse %ot blot or >$A DN aLPm loci which wa! u!ed in 93D ca!e! that were admitted a! evidence "y 4D court! in the 5.S. a! of Novem"er 122JB mtDNA proce!!B N#R ,varia"le num"er tandem repeat!-B and the mo!t recent which i! %nown a! the PCR',Ipolymera!eK chain reaction"a!ed S#R ,!hort tandem repeat!- method which( a! of122H( wa! availed of "y mo!t foren!ic la"oratorie! in the world. PCR i! the proce!! of replicating or copying DNA in an evidence !ample a million time! through repeated cycling of a reaction involving the !o'called DNA polymeriCe enCyme. &'R( on the other hand( ta%e! mea!urement! in 14 !eparate place! and can match two ,9- !ample! with a reported theoretical error rate of le!! than one ,1- in a trillion. &u!t li%e in fingerprint analy!i!( in DNA typing( matches are determined. #o illu!trate( when DNA or fingerprint te!t! are done to identify a !u!pect in a criminal ca!e( the evidence collected from the crime !cene i! compared with the (no)n print. If a !u"!tantial amount of the identifying feature! are the !ame( the DNA or fingerprint i! deemed to "e a -a.c/. ?ut then( even if only one feature of the DNA or fingerprint i! di##e(en.( it i! deemed n". ." /ave c"-e #("- ./e s*s0ec.. A! earlier !tated( certain region! of human DNA !how variation! "etween people. In each of the!e region!( a per!on po!!e!!e two genetic type! called allele, one inherited from each parent. In IaK paternity te!t( the foren!ic !cienti!t loo%! at a num"er of the!e varia"le region! in an individual to produce a DNA profile. Comparing ne+t the DNA profile! of the mother and child( it i! po!!i"le to determine which half of the child/! DNA wa! inherited from the mother. #he other half mu!t have "een inherited from the "iological father. #he alleged father/! profile i! then e+amined to a!certain whether he ha! the DNA type! in hi! profile( which match the paternal type! in the child. If the man/! DNA type! do not match that of the child( the man i! e'cl*ded a! the father. If the

In Herrera v. Alba,19 the )ir!t Divi!ion of the Supreme Court through &u!tice Carpio !tated the following< DNA i! the fundamental "uilding "loc% of a per!on/! entire genetic ma%e'up. DNA i! found in all human cell! and i! the !ame in every cell of the !ame per!on. =enetic identity i! uni.ue. >ence( a per!on/! DNA profile can determine hi! identity ,5ngria( 9::1-. DNA analy!i! i! a procedure in which DNA e+tracted from a "iological !ample o"tained from an individual i! e+amined. #he DNA i! proce!!ed to generate a pattern( or a DNA profile( for the individual from whom the !ample i! ta%en. #hi! DNA profile i! uni.ue for each per!on( e+cept for identical twin! ,5P'NSRI( 9::1-. #he fir!t Divi!ion further .uoted the relevant portion! of the trial court/! 4 )e"ruary 9::: 8rder with approval< Everyone i! "orn with a di!tinct genetic "lueprint called DNA &de"' (i)"n*cleic acid+. It i! e+clu!ive to an individual ,e+cept in the rare occurrence of identical twin! that !hare a !ingle( fertiliCed egg-( and DNA i! unchanging throughout life. ?eing a component of every cell in the human "ody( the DNA of an individual/! "lood i! the very DNA in hi! or her !%in cell!( hair follicle!( mu!cle!( !emen( !ample! from "uccal !wa"!( !aliva( or other "ody part!. #he chemical !tructure of DNA ha! four "a!e!. #hey are %nown a! A ,adenine-( $ ,guanine-( C ,cyto!ine- and ,thymine-. #he order in which the four "a!e! appear in an individual/! DNA determine! hi! or her phy!ical ma%eup. And !ince DNA i! a dou"le!tranded molecule( it i! compo!ed of two !pecific paired "a!e!( A,T or T,A and $, C or C,$. #he!e are called genes. Every gene ha! a certain num"er of the a"ove "a!e pair! di!tri"uted in a particular !e.uence. #hi! give! a per!on hi! RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

DNA type! match( then he i! n". e'cl*ded a! the father. ,Empha!i! in the originalIII. INTRODUCTION OF DNA EVIDENCE IN PHILIPPINE COURT INITIALLY RECEIVED 1ITH CAUTION In the 1227 ca!e of People v. 'eehan(ee, *r.14 where the appellant wa! convicted of murder on the te!timony of three eyewitne!!e!( the Supreme Court !tated a! an obiter %ictum that Fwhile eyewitne!! identification i! !ignificant( it i! not a! accurate and authoritative a! the !cientific form! of identification evidence !uch a! the fingerprint or the +,A testing.G #he faith of the Supreme Court in DNA te!ting( however( wa! not .uite !o !teadfa!t when DNA Evidence wa! fir!t introduced in Court. In Pe im v. -ourt o" Appeals./( promulgated in 122D( Supreme Court cautioned again!t the u!e of DNA "ecau!e FDNA( "eing a relatively new !cience( had not a! yet "een accorded official recognition "y our court!. Paternity would !till have to "e re!olved "y !uch conventional evidence a! the relevant incriminating act!( ver"al and written( "y the putative father.G In 9::1( however( the Supreme Court opened the po!!i"ility of admitting DNA a! evidence of parentage( a! enunciated in 'ijing v. -ourt o" Appeals.17 In 'ijing, the Supreme Court i!!ued a writ of habeas corpus again!t re!pondent who a"ducted petitioner!/ younge!t !on. #e!timonial and documentary evidence and phy!ical re!em"lance were u!ed to e!ta"li!h parentage. In ca!e proof of filiation or paternity would "e unli%ely to !ati!factorily e!ta"li!h or would "e difficult to o"tain( DNA te!ting( which e+amine! genetic code! o"tained from "ody cell! of the illegitimate child and any phy!ical re!idue of the long dead parent could "e re!orted to. A po!itive match would clear up filiation or paternity. >owever( the Supreme Court o"!erved that< Parentage will !till "e re!olved u!ing conventional method! unle!! the Supreme Court adopt! the modern and !cientific way! availa"le. )ortunately( the Philippine! have now the facility and e+perti!e in u!ing DNA te!t for identification and parentage te!ting. #he 5niver!ity of the Philippine! Natural Science Re!earch In!titute ,5P'NSRI- DNA Analy!i! $a"oratory ha! now the capa"ility to conduct DNA typing u!ing !hort tandem repeat ,S#R- analy!i!. #he analy!i! i! "a!ed on the fact that the DNA of a childLper!on ha! two ,9- copie!( one copy from the mother and the other from the father. #he DNA from the mother( the alleged father and child are analyCed to e!ta"li!h parentage. 8f cour!e( RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

"eing a novel !cientific techni.ue( the u!e of DNA te!t a! evidence i! !till open to challenge. Eventually( a! the appropriate ca!e come!( court! !hould not he!itate to rule on the admi!!i"ility of DNA evidence. )or it wa! !aid( that court! !hould apply the re!ult! of !cience when competently o"tained in aid of !ituation! pre!ented( !ince to re0ect !aid re!ult i! to deny progre!!. IV. ADMI%%IBILITY OF %CIENTIFIC AND TECHNOLO$ICAL EVIDENCE 2.1. Ad-issi)ili. "# Evidence *nde( ./e P/ili00ine R*les "# C"*(. Section 4 of Rule 193 of the Philippine Rule! of Court provide! that evidence i! admi!!i"le when it i! relevant to the i!!ue and i! not e+cluded "y the law of the!e rule!. #here are two important element! for the admi!!i"ility of evidence A relevance and not e+cluded "y the law. #he admi!!i"ility of evidence depend! on it! relevance and competence. 2.1.1. Relevance. Evidence in order to "e admi!!i"le mu!t "e important to the i!!ue! for the re!olution of the ca!e. 2.1.2. C"-0e.ence. Evidence in order to "e admi!!i"le in court !hould not "e e+cluded "y the law of the!e rule!. Evidence !hould not "e gathered from illegal !earch or !eiCure( it !hould not "e a fruit of the poi!onou! tree ,Poi!onou! tree Doctrine-. 2.1.!. Ad-issi)ili. is n". ./e sa-e as 1ei3/. "# Evidence. #he admi!!i"ility of evidence !hould not "e e.uated with weight of evidence. #he admi!!i"ility of evidence depend! on it! relevance and competence while the weight of evidence pertain! to evidence already admitted and it! tendency to convince and per!uade. 2.2. Need #"( %.anda(ds "( R*les "# Ad-issi)ili. "# %cien.i#ic "( Tec/n"l"3ical Evidence in A-e(ican 4*(is0(*dence. #he mi!u!e of !cientific evidence i! a !eriou! pro"lem. Even the government la"oratorie! are under !u!picion. )or e+ample( in ;e!t irginia( 5SA( a !erologi!t fal!ified te!t re!ult! in hundred! of ca!e! over a ten'year period( !entencing hundred! of defendant! to lengthy pri!on term!. In #e+a!( a pathologi!t fa%ed autop!y re!ult!( re!ulting in a! many a! 9: death penalty verdict!. A police chemi!t el!ewhere fal!ified report! and !ent hundred! of innocent people away to 0ail on rape charge!. Eo!t mi!u!e of !cientific evidence i! pro'pro!ecution. In American &uri!prudence( the Frye 'est( +aubert &tan%ar%( and the 0umho +octrine evolved. 2.!. T/e F( e Tes.. Scientific evidence i! admi!!i"le if it wa! "a!ed on a !cientific techni.ue generally accepted a! relia"le in the !cientific community. E+pert te!timony wa! admitted !imply "y virtue of the e+pert/! credential!( e+perience( !%ill

and reputation. Any deficiencie! or flaw! in the e+pert/! conclu!ion! would "e e+po!ed through cro!!'e+amination. Applying thi! rule( the Frye court refu!ed to admit te!timony "a!ed on an early lie detector ,polygraph- te!t rea!oning that lie detector te!ting had not gained general !cientific acceptance or recognition at that time. 2.2. T/e Da*)e(. %.anda(d &Da*)e(. v. Me((ell D"5+. +aubert !hed! light on !hoddy procedure!( protocol!( and proficiency te!ting. In +aubert( the Supreme Court re!tated the Fgeneral acceptanceG te!t u!ed "y trial 0udge! to determine the admi!!i"ility of e+pert te!timony.12 In thi! ca!e( the plaintiff! !ued the defendant drug manufacturer for "irth defect! allegedly cau!ed "y the drug ?endectin. #he plaintiff!( in re!pon!e to a motion for !ummary 0udgment( offered e+pert! to te!tify to the lin% "etween the inge!tion of ?endectin and certain "irth defect!. #he Di!trict Court concluded that the opinion! of the plaintiff!/ e+pert! were not generally accepted in their field and granted the defendant/! motion for !ummary 0udgment. #he Ninth Circuit Court of Appeal! affirmed. 8n appeal to the Supreme Court( the plaintiff! argued that the Fgeneral acceptanceG te!t !et forth in Frye v. 1nite% &tates( wa! F!uper!eded "y the adoption of the )ederal Rule! of Evidence.G9: #he Court agreed and a"andoned the Fgeneral acceptanceG te!t u!ed "y )ederal court! for D: year!. In it! place( the Court announced that trial 0udge! have the role of Fgate%eeperG to en!ure Fthat any and all !cientific te!timony or evidence admitted i! not only relevant( "ut relia"le.G #he Court !tated that the trial 0udge !hould determine whether the rea!oning and methodology i! F!cientifically validG and whether Fthat rea!oning properly can "e applied to the fact! in i!!ue.G Dau"ert di!cu!!ed four !pecific factor! which a trial court may con!ider in it! gate'%eeping determination regarding the admi!!i"ility of !cientific te!timony( !ome or all of which might prove helpful in determining the relia"ility of a particular !cientific Ftheory or techni.ue(G including< 1whether a Ftheory or techni.ue ... can "e ,and ha! "eente!tedBG 9- whether it Fha! "een !u"0ected to peer review and pu"licationBG 4- in re!pect to a particular techni.ue( the F%nown or potential rate of errorG and the e+i!tence or maintenance of F!tandard! controlling the techni.ue/! operationBG and J- whether the theory or techni.ue en0oy! Fgeneral acceptanceG within a Frelevant !cientific community.G 5nder +aubert( the admi!!i"ility of e+pert te!timony i! to "e more rigorou!ly !crutiniCed "y the trial 0udge to determine whether it meet! the re.uirement! of )ed. R. Evid. D:9( which provide!< RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

If !cientific( technical( or other !pecialiCed %nowledge will a!!i!t the trier of fact to under!tand the evidence or to determine a fact in i!!ue( a witne!! .ualified a! a e+pert "y %nowledge( !%ill( e+perience( training or education( may te!tify thereto in the form of an opinion or otherwi!e. T/e Da*)e(. %.anda(ds. All trial court! ma%e a preliminary determination of admi!!i"ility. #hi! 0o" involve! a preliminary a!!e!!ment of whether the evidence i! relevant( competent( and material. In !hort( can the evidence "e properly applied to the fact! in thi! ca!eM #hi! i! the traditional Fgate%eepingG function of court!. A num"er of relia"ility factor! can enter into thi! and !u"!e.uent hearing! u!ing the +aubert !tandard< 1. >a! the !cientific theory or techni.ue "een empirically te!tedM According to 6. Popper ,1232- in 'he 2ro)th o" &cienti"ic 0no)le%ge( Fthe criterion on the !cientific !tatu! of a theory i! it! fal!ifa"ility( refuta"ility( and te!ta"ility.G 9. >a! the !cientific theory or techni.ue "een !u"0ected to peer review and pu"licationM #hi! en!ure! that flaw! in the methodology would have "een detected and that the techni.ue i! finding it! way ninto u!e via the literature. 4. ;hat i! the %nown or potential error rateM Every !cientific idea ha! #ype I and #ype II error rate!( and the!e can "e e!timated with a fair amount of preci!ion. #here are %nown threat! to validity and relia"ility in any te!t! ,e+perimental and .ua!i'e+perimental- of a theory. J. ;hat i! the e+pert/! .ualification! and !tature in the !cientific communityM And doe! the techni.ue rely upon the !pecial !%ill! and e.uipment of one e+pert( or can it "e replicated "y other e+pert! el!ewhereM 7. Can the techni.ue and it! re!ult! "e e+plained with !ufficient clarity and !implicity !o that the court and the 0ury ca under!tand it! plain meaningM #hi! i! 0u!t the 3ar4 !tandard( which i! a!!umed to "e incorporated in +aubert a! it wa! with Frye. C"--"n s.a.e-en.s "# FRYE and DAUBERT6 5nterpretation o" Frye ;here novel !cientific evidence i! at i!!ue( the )rye in.uiry allow! the 0udiciary to defer to !cientific e+perti!e preci!ely a! to whether or not it ha! gained Fgeneral acceptanceG in the relevant field. #he trial court/! gate%eeper role in thi! re!pect i! con!ervative( thu! helping to %eep Fp!eudo!cienceG out of the courtroom. 5nterpretation o" +aubert6

=eneral acceptance i! an au!tere !tandard a"!ent from and incompati"le with the Rule! of Evidence. FScientific %nowledgeG mu!t "e derived from the !cientific method !upported "y Fgood ground!G in validating the e+pert/! te!timony( e!ta"li!hing a !tandard of Fevidentiary relia"ility.G 2.7. 8*-/" D"c.(ine , E'0ansi"n "# Da*)e(. in." Tec/n"l"3ical Tes.i-"n . In 0umho( the Supreme Court e+panded the !cope of the +auberttest to include all form! of e+pert te!timony.94 In thi! ca!e( the plaintiff! claimed that a defective tire cau!ed their car to overturn. #he a mechanical engineer to te!tify that a defect in the tire wa! the cau!e of the "lowout. #he Di!trict Court 0udge( on the defendant/! motion( e+cluded the e+pert and granted !ummary 0udgment. #he 0udge concluded that the e+pert/! te!timony wa! !u"0ect to a +aubert review even though it wa! FtechnicalG rather than F!cientific(G and that( "a!ed on !uch review( the e+pert/! method! were not relia"le. #he Eleventh Circuit rever!ed and remanded( finding that the 0udge erred in applying the +aubert test to non'!cientific te!timony. #he Supreme Court rever!ed( concluding that Fit would prove difficult( if not impo!!i"le( for 0udge! to admini!ter evidentiary rule! under which a Ogate%eeping/ o"ligation depended on a di!tinction "etween O!cientific/ %nowledge and Otechnical/ or Oother !pecialiCed/ %nowledge( !ince there i! no clear line dividing the one from the other! and no convincing need to ma%e !uch di!tinction!.G 9J. #he Court then loo%ed at the trial 0udge/! deci!ion to e+clude the e+pert( in light of the +aubert test and the wide latitude of di!cretion granted to trial 0udge! in determining whether an e+pert/! opinion i! relevant and relia"le. #he Court found that the trial 0udge had not a"u!ed hi! di!cretion in e+cluding the e+pert( noting that the e+pert met none of the +aubert criteria and that the methodologie! u!ed could not relia"ly determine the cau!e of the tire/! !eparation. 2.9. 4*d3e as $a.e:ee0e(s. In +aubert( the Court provided a general idea a! to the nature of the gate%eeping role. F)aced with a proffer of e+pert !cientific te!timony( then( the trial 0udge mu!t determine at the out!et( pur!uant to Rule1:J,a-( whether the e+pert i! propo!ing to te!tify to ,1- !cientific %nowledge that ,9- will a!!i!t the trier of fact to under!tand or determine a fact in i!!ue. #hi! entail! a preliminary a!!e!!ment of whether the rea!oning or methodology properly can "e applied to the fact! in i!!ue.G97 8n remand from +aubert( the lower court/! unea!e with thi! new ta!% wa! clearly evident< F8ur re!pon!i"ility( then( unle!! we mi!read the Supreme Court/! opinion i! to re!olve di!pute! among re!pected( well RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

credentialed !cienti!t! a"out matter! !.uarely within their e+perti!e( in area! where there i! no !cientific con!en!u! a! to what i! or what i! not Ogood !cience(/ and occa!ionally to re0ect !uch e+pert te!timony "ecau!e it wa! not Oderived "y the !cientific method./ Eindful of our po!ition in the hierarchy of the federal 0udiciary( we ta%e a deep "reath and proceed with thi! heady ta!%.G ?y "roadening the circle of Fe+pert!G to "e !u"0ected to the gate%eeping proce!!( 0umho ha! only e+panded the unea!e that 0udge! already may have felt. 2.;. Frye< Daubert< and Kumho Cases /ave Pe(s*asive E##ec.s in P/ili00ine %*0(e-e C"*(.. 8"viou!ly( neither the FryeSchwartz !tandard nor the Daubert-Kumho !tandard i! controlling in the Philippine!.9D At "e!t( American 0uri!prudence merely ha! a per!ua!ive effect on our deci!ion!. >ere( evidence i! admi!!i"le when it i! relevant to the fact in i!!ue and i! not otherwi!e e+cluded "y !tatute or the Rule! of Court ,i.e. competent-. 2.=. Usa3e "# F( e< Da*)e(. and 8*-/" D"c.(ines in P/ili00ine 4*dicial % s.e-. 5nder the Philippine Rule! of Court( evidence i! admi!!i"le when it i! relevant to the fact in i!!ue and i! not otherwi!e e+cluded "y !tatute or the Rule! of Court.92 #he Philippine Court! do not follow the re!trictive te!t! for admi!!i"ility e!ta"li!hed "y Frye-Schwartz and Daubert-Kumho. In Philippine 0uri!diction( the re!trictive te!t! for admi!!i"ility e!ta"li!hed "y Frye- Schwartz and Daubert-Kumho go into the 5ei3/. "# ./e evidence. 2.>. P(")a.ive Val*e "# DNA Anal sis as Evidence. In Herrera v. Alba, the Supreme Court held that a DNA te!t i! a valid pro"ative tool to determine paternity. #he Court !aid that there i! nothing in the rule! of evidence or law that prohi"it! the admi!!i"ility of a DNA te!t. #he )ir!t Divi!ion of the Supreme Court through &u!tice Carpio ha! the opportunity to write a"out the pro"ative value of DNA analy!i! a! evidence. #he Court !aid< De!pite our relatively li"eral rule! on admi!!i"ility( trial court! !hould "e cautiou! in giving credence to DNA analy!i! a! evidence. #he Court reiterate! it! !tatement in Vallejo< In a!!e!!ing the pro"ative value of DNA evidence( therefore( court! !hould con!ider( among other thing!( the following data< how the !ample! were collected( how they were handled( the po!!i"ility of contamination of the !ample!( the procedure followed in analyCing the !ample!( whether the proper !tandard! and procedure! were followed in conducting the te!t!( and the .ualification of the analy!t who conducted the te!t!.

#he Court al!o repeat! the trial court/! e+planation of DNA analy!i! u!ed in paternity ca!e!< In a paternity te!t( the foren!ic !cienti!t loo%! at a num"er of the!e varia"le region! in an individual to produce a DNA profile. Comparing ne+t the DNA profile! of the mother and child( it i! po!!i"le to determine which half of the child/! DNA wa! inherited from the mother. #he other half mu!t have "een inherited from the "iological father. #he alleged father/! profile i! then e+amined to a!certain whether he ha! the DNA type! in hi! profile( which match the paternal type! in the child. If the man/! DNA type! do not match that of the child( the man i! e'cl*ded a! the father. If the DNA type! match( then he i! n". e'cl*ded a! the father. It i! not enough to !tate that the child/! DNA profile matche! that of the putative father. A complete match "etween the DNA profile of the child and the DNA profile of the putative father doe! not nece!!arily e!ta"li!h paternity. )or thi! rea!on( following the highe!t !tandard adopted in an American 0uri!diction( trial court! !hould re.uire at lea!t 22.2P a! a minimum value of the Pro"a"ility of Paternity ,F;G- prior to a paternity inclu!ion. ; i! a numerical e!timate for the li%elihood of paternity of a putative father compared to the pro"a"ility of a random match of two unrelated individual!. An appropriate reference population data"a!e( !uch a! the Philippine population data"a!e( i! re.uired to compute for ;. Due to the pro"a"ili!tic nature of paternity inclu!ion!( ; will never e.ual to 1::P.>owever( the accuracy of ; e!timate! i! higher when the putative father( mother and child are !u"0ected to DNA analy!i! compared to tho!e conducted "etween the putative father and child alone. DNA analy!i! that e+clude! the putative father from paternity !hould "e conclu!ive proof of non'paternity. If the value of ; i! le!! than 22.2P( the re!ult! of the DNA analy!i! !hould "e con!idered a! corro"orative evidence. If the value of ; i! 22.2P or higher( then there i! (e#*.a)le pre!umption of paternity. #hi! refuta"le pre!umption of paternity !hould "e !u"0ected to the Vallejo !tandard!. 2.1?. B(ea:./("*3/ "n ./e P/ili00ine R*le "n DNA Evidence. #he Supreme Court of the Philippine! adapted the %ey concept! of Frye( +aubert and 0umho Doctrine!. In :9 8cto"er 9::D( the Supreme Court of the Philippine re!olved and acted on the recommendation of the Chairper!on and Eem"er of the Su"committee on Evidence !u"mitting for the Court/! con!ideration RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

and approval the propo!ed Rule on DNA Evidence( the Court Re!olved to APPR8 E the !ame. #he 9::D Rule! on DNA Evidence IA.E. No. :H'11'7'SCK too% effect in 17 8cto"er 9::D after it! full pu"lication in a new!paper of general circulation. Section! D( 3( 2( and 19 of the Rule on DNA Evidence gave the following Rule! in the a!!e!!ment of pro"ative value of DNA evidence( relia"ility of DNA te!ting methodology( evaluation of DNA te!ting re!ult!( and the pre!ervation of DNA evidence re!pectively< &ection.7. Assessment o" probative value o" +,A evi%ence.8 5n assessing the probative value o" the +,A evi%ence presente%, the court shall consi%er the "ollo)ing6 !a# 'he chain o" custo%y, inclu%ing ho) the biological samples )ere collecte%, ho) they )ere han%le%, an% the possibility o" contamination o" the samples$ !b# 'he +,A testing metho%ology, inclu%ing the proce%ure "ollo)e% in analy9ing the samples, the a%vantages an% %isa%vantages o" the proce%ure, an% compliance )ith the scienti"ically vali% stan%ar%s in con%ucting the tests$ !c# 'he "orensic +,A laboratory, inclu%ing accre%itation by any reputable stan%ar%s: setting institution an% the ;uali"ication o" the analyst )ho con%ucte% the tests. 5" the laboratory is not accre%ite%, the relevant e4perience o" the laboratory in "orensic case)or( an% cre%ibility shall be properly establishe%$ an% !%# 'he reliability o" the testing result, as hereina"ter provi%e%. 'he provisions o" the Rules o" -ourt concerning the appreciation o" evi%ence shall apply suppletorily. &ection.<. Reliability o" +,A 'esting 3etho%ology.85n evaluating )hether the +,A testing metho%ology is reliable, the court shall consi%er the "ollo)ing6 !a# 'he "alsi"iability o" the principles or metho%s use%, that is, )hether the theory or techni;ue can be an% has been teste%$ !b# 'he subjection to peer revie) an% publication o" the principles or metho%s$ !c# 'he general acceptance o" the principles or metho%s by the relevant scienti"ic community$ !%# 'he e4istence an% maintenance o" stan%ar%s an% controls to ensure the correctness o" %ata generate%$ !e# 'he e4istence o" an appropriate re"erence population %atabase$ an% !" # 'he general %egree o" con"i%ence

attribute% to mathematical calculations use% in comparing +,A pro"iles an% the signi"icance an% limitation o" statistical calculations use% in comparing +,A pro"iles. &ection =. >valuation o" +,A 'esting Results. 85n evaluating the results o" +,A testing, the court shall consi%er the "ollo)ing6 !a# 'he evaluation o" the )eight o" matching +,A evi%ence or the relevance o" mismatching +,A evi%ence$ !b# 'he results o" the +,A testing in the light o" the totality o" the other evi%ence presente% in the case$ an% that !c# +,A results that e4clu%e the putative parent "rom paternity shall be conclusive proo" o" non:paternity. 5" the value o" the Probability o" Paternity is less than ==.=?, the results o" the +,A testing shall be consi%ere% a corroborative evi%ence. 5" the value o" the Probability o" Paternity is ==.=? or higher, there shall be a %isputable presumption o" paternity. &ection .@. Preservation o" +,A >vi%ence.8'he trial court shall preserve the +,A evi%ence in its totality, inclu%ing all biological samples, +,A pro"iles an% results or other genetic in"ormation obtaine% "rom +,A testing. For this purpose, the court may or%er the appropriate government agency to preserve the +,A evi%ence as "ollo)s6 !a# 5n criminal cases6 i. "or not less than the perio% o" time that any person is un%er tria "or an o""ense$ or, ii. in case the accuse% is serving sentence, until such time as the accuse% has serve% his sentence$ an% !b# 5n all other cases, until such time as the %ecision in the case )here the +,A evi%ence )as intro%uce% has become "inal an% e4ecutory. 'he court may allo) the physical %estruction o" a biological sample be"ore the e4piration o" the perio%s set "orth above, provi%e% that6 i. A court or%er to that e""ect has been secure%$ or ii. the person "rom )hom the +,A sample )as obtaine% has consente% in )riting to the %isposal o" the +,A evi%ence. V. LANDMAR8 CA%E AND %UPREME COURT 4URI%PRUDENCE ON THE ADMI%%IBILITY AND PROBATIVE VALUE OF DNA ANALY%I% A% EVIDENCE 7.1. Land-a(: Case. #he fir!t real "rea%through of DNA analy!i! a! admi!!i"le and authoritative evidence in RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

Philippine 0uri!prudence came in 9::9 with the en banc deci!ion of the Supreme Court in People v. VallejoA@ where the rape and murder victim/! DNA !ample! from the "lood!tained clothe! of the accu!e were admitted in evidence. #hi! may "e con!idered a 13: degree turn from the Supreme Court/! wary attitude toward! DNA te!ting in the 122D Pe im ca!e(the Supreme Court rea!oned that Fthe purpo!e of DNA te!ting wa! to a!certain whether an a!!ociation e+i!ted "etween the evidence !ample and the reference !ample. #he !ample! collected were !u"0ected to variou! chemical proce!!e! to e!ta"li!h their profile.G In Vallejo,34 the DNA profile from the vaginal !wa"! ta%en from the rape victim matched the accu!ed/! DNA profile. #he high Court affirmed the accu!ed/! conviction of rape with homicide and !entenced him to death. #he Supreme Court declared< In a!!e!!ing the pro"ative value of DNA evidence( therefore( court! !hould con!ider( among other thing!( the following data< how the !ample! were collected( how they were handled( the po!!i"ility of contamination of the !ample!( the procedure followed in analyCing the !ample!( whether the proper !tandard! and procedure! were followed in conducting the te!t!( and the .ualification of the analy!t who conducted the te!t! IJ41 Phil. D23 ,9::9-K. Vallejo di!cu!!ed the pro"ative value( not admi!!i"ility( of DNA evidence. ?y 9::9( there wa! no longer any .ue!tion on the validity of the u!e of DNA analy!i! a! evidence. #he Court moved from the i!!ue of according Fofficial recognitionG to DNA analy!i! a! evidence to the i!!ue of o"!ervance of procedure! in conducting DNA analy!i!. 7.2. P/ili00ine %*0(e-e C"*(. 4*(is0(*dence. #he following ca!e! have a !ignificant impact on 0uri!prudence on DNA te!ting. 7.2.1 People . !atar.!9 In Yatar( a match e+i!ted "etween the DNA profile of the !emen found in the victim and the DNA profile of the "lood !ample given "y appellant in open court. #he Court( following VallejoBs foot!tep!( affirmed the conviction of appellant "ecau!e the phy!ical evidence( corro"orated "y circum!tantial evidence( !howed appellant guilty of rape with homicide. #he

Supreme Court affirmed the conviction of the accu!ed for rape with homicide( the principal evidence for which included DNA te!t re!ult!. #he Supreme Court did a lengthy di!cu!!ion of DNA( the proce!! of DNA te!ting and the rea!on! for it! admi!!i"ility in the conte+t of the Rule! of Evidence< In the ca!e at "ar( Dr. Earia CoraCon A"ogado de 5ngria wa! duly .ualified "y the pro!ecution a! an e+pert witne!! on DNA print or identification techni.ue!. ?a!ed on Dr. de 5ngria/! te!timony( it wa! determined that the gene type and DNA profile of appellant are identical to that of the e+tract! !u"0ect of e+amination. #he "lood !ample ta%en from the appellant !howed that he wa! of the following gene type!< v;A 17L12( #>:1 DL3( D>)RP92L1: and CS)1P8 1:L11( which are identical with !emen ta%en from the victim/! vaginal canal. erily( a DNA match e+i!t! "etween the !emen found in the victim and the "lood !ample given "y the appellant in open court during the cour!e of the trial. Admittedly( we are 0u!t "eginning to integrate the!e advance! in !cience and technology in the Philippine criminal 0u!tice !y!tem( !o we mu!t "e cautiou! a! we traver!e the!e relatively uncharted water!. )ortunately( we can "enefit from the wealth of per!ua!ive 0uri!prudence that ha! developed in other 0uri!diction!. Specifically( the prevailing doctrine in the 5.S. ha! proven in!tructive. In +aubert v. 3errell +o) ,7:2 5.S. 7D2 ,1224-B 197 $. Ed. 9d JH2- it wa! ruled that pertinent evidence "a!ed on !cientifically valid principle! could "e u!ed a! long a! it wa! relevant and relia"le. &udge!( under +aubert( were allowed greater di!cretion over which te!timony they would allow at trial( including the introduction of new %ind! of !cientific techni.ue!. DNA typing i! one !uch novel procedure. 5nder Philippine law( evidence i! relevant when it relate! directly to a fact in i!!ue a! to induce "elief in it! e+i!tence or none+i!tence. Applying the +aubert te!t to the ca!e at "ar( the DNA evidence o"tained through PCR te!ting and utiliCing S#R analy!i!( and which wa! appreciated "y the court a ;uo i! relevant and relia"le !ince it i! rea!ona"ly "a!ed on !cientifically valid principle! of human genetic! and molecular "iology. Significantly( the Supreme Court upheld the con!titutionality of compul!ory DNA te!ting and the admi!!i"ility of the re!ult! thereof a! evidence. In that ca!e( DNA !ample! RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

from !emen recovered from a rape victim/! vagina were u!ed to po!itively identify the accu!ed &oel F6awitG Qatar a! the rapi!t. 7.2.2. "# re$ %he &r't o( )abea* +orpu* (or ,ey#al-o -e .'lla. In +e Villa( the convict'petitioner pre!ented DNA te!t re!ult! to prove that he i! not the father of the child conceived at the time of commi!!ion of the rape. #he Court ruled that a difference "etween the DNA profile of the convict'petitioner and the DNA profile of the victim/! child doe! not preclude the convictpetitioner/! commi!!ion of rape. 7.2.!. %ec*o#, et al. . +/M0L0+.!= #he Supreme Court en banc wa! faced with the i!!ue of filiation of then pre!idential candidate )ernando Poe &r.( the Supreme Court !tated< In ca!e proof of filiation or paternity would "e unli%ely to !ati!factorily e!ta"li!h or would "e difficult to o"tain( DNA te!ting( which e+amine! genetic code! o"tained from "ody cell! of the illegitimate child and any phy!ical re!idue of the long dead parent could "e re!orted to. A po!itive match would clear up filiation or paternity. In 'ijing vs. -ourt o" Appeals( thi! Court ha! ac%nowledged the !trong weight of DNA te!tingR 7.2.2. People . 1a#*o#.!> #he Supreme Court ac.uitted the accu!ed charged with rape for lac% of evidence "ecau!e Fdou"t! per!i!ted in our mind a! to who were the real malefactor!. According to the Court( ye!( a comple+ offen!e had "een perpetrated "ut who were the perpetrator!M >ow we wi!h we had DNA or other !cientific evidence to !till our dou"t!SG 7.2.7. 2gu*t'# . +ourt o( 2ppeal*.2? #he Court !aid Ffor too long(illegitimate children have "een marginaliCed "y father! who choo!e to deny their e+i!tence. #he growing !ophi!tication of DNA te!ting technology finally provide! a much needed e.ualiCer for !uch o!traciCed and a"andoned progeny. #he court ha! long "elieved in the merit! of DNA te!ting and have repeatedly e+pre!!ed a! much in the pa!t. #hi! ca!e come! at a perfect time when DNA te!ting ha! finally evolved into a dependa"le and authoritative form of evidence gathering. #he Court therefore ta%e! thi! opportunity to forcefully reiterate our !tand that DNA te!ting i! a valid mean! of determining paternity./ 7.2.9. )errera . 2lba.21 #he Court !aid Fin the Philippine!( evidence i! admi!!i"le when it i! relevant to the fact in i!!ue and i! not otherwi!e e+cluded "y !tatute or the Rule!

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of Court. Evidence i! relevant when it ha! !uch a relation to the fact in i!!ue a! to induce "elief in it! e+i!tence or non'e+i!tence. Section J2 of Rule 14:( which govern! the admi!!i"ility of e+pert te!timony( provide! a! follow!< #he opinion of a witne!! on a matter re.uiring !pecial %nowledge( !%ill( e+perience or training which he i! !hown to po!!e!! may "e received in evidence. #hi! Rule doe! not po!e any legal o"!tacle to the admi!!i"ility of DNA analy!i! a! evidence. Indeed( even evidence on collateral matter! i! allowed Fwhen it tend! in any rea!ona"le degree to e!ta"li!h the pro"a"ility or impro"a"ility of the fact in i!!ue.G 7.2.;. 2#-al . People.22 DNA Tes.s@ 1/en Dee-ed Unnecessa( "( T"" La.e ." C"nside(@ Case a. Ba(. #he i!!ue of FDNA te!t!G a! a more accurate and authoritative mean! of identification than eye'witne!! identification need not "e "ela"ored. #he accu!ed were all properly and duly identified "y the pro!ecution/! principal witne!!( 8limpio Corrale!( a "rother'in'law of accu!ed &urry and Ricardo Andal. DNA te!ting propo!ed "y petitioner! to have an o"0ective and !cientific "a!i! of identification of F!emen !ample! to compare with tho!e ta%en from the vagina of the victimG are thu! unnece!!ary or are forgotten evidence too late to con!ider now. 7.2.=. 3a# . Po#-e '-a.2! Petitioner =an filed a Eotion for Recon!ideration to hi! petition for certiorari with the Supreme Court( earlier the Court of Appeal! denied hi! Eotion to Direct Partie! to Su"mit to DNA #e!ting.G It appear! that petitioner failed to file hi! An!wer to the Complaint for Support filed again!t him "y the re!pondent!( thu! the latter were allowed to pre!ent evidence e+'parte. #he trial court ruled that re!pondent! had !ufficiently e!ta"li!hed )ranche!%a/! illegitimate filiation "a!ed on the relation!hip of the petitioner and ?ernadette Pondevida from Eay 123D to &uly 122JB photograph! and letter! circa 123D( 1233 and 122:B and ?ernadette Pondevida/! te!timony that petitioner impregnated her and that !he had no other affair with any man e+cept petitioner "efore and during the conception of )ranche!%a. Petitioner prayed that the re!olution of the appeal "e held in a"eyance until the re!ult! of the DNA te!ting are !u"mitted for the appellate Court/! evaluation. #he Court of Appeal!( in a Re!olution dated April 11( 9::4( denied petitioner/! Eotion( ratiocinating that petitioner ha! long "een declared in default( !ince he failed to file hi! An!wer to the Complaint for Support. >aving "een declared a! !uch( he forfeited hi! right to "e heard and pre!ent evidence in hi! favor. #he Supreme Court re!olve! to deny the petitioner/! Eotion for RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

Recon!ideration. #he >igh Court !tate! that Fa! properly !tated "y the Court of Appeal!( in view of petitioner/! default( he i! precluded from adducing evidence on appeal.G 7.2.>. "N ,0$ Pet't'o# to ta4e the 5666 Bar 07am*. 22 Ce!ar pa!!ed the 1222 ?ar E+amination! "ut wa! not allowed to ta%e the lawyer/! oath on 4 Eay 9::: in view of the $etter'Complaint dated 9J &anuary 9::: of #E Ca!tro charging him with Immorality and =rave Ei!conduct. Ca!tro alleged that !he and petitioner were former lover! that !he "ore him a !on named Eichael Angelo Ca!tro on 7 Eay 1222. #he i!!ue "efore the Supreme Court i! whether petitioner po!!e!!e! the good moral character re.uired to "e admitted to the Philippine ?ar. Complainant pre!ented prima "acie evidence tending to !how that petitioner doe! not po!!e!! !uch character !ince he refu!ed to give financial !upport to a child he ha! legally ac%nowledged to "e hi! own. ?ut petitioner claim! otherwi!e( that i!( he po!!e!!e! the good moral character re.uired to "e admitted to the ?ar !ince hi! refu!al to give !upport i! entirely 0u!tified "y valid rea!on!. A!ide from the fact that he wa! merely forced into ac%nowledging paternity of Eichael( he wanted to remove fir!t hi! rea!ona"le dou"t! regarding the child/! paternity through DNA Tes.in3. #he Court 0udicial notice of the fact that DNA typing or deo+yri"onucleic acid ,the cellular component identified a! the vehicle of generational tran!ference of herita"le trait!- typing i! fa!t "ecoming an important procedure not only in the field of medical !cience "ut in criminal law and paternity di!pute! a! well. Con!idering the foregoing and the fact that petitioner promi!ed to a"ide "y the re!ult of the DNA te!t a! well a! to !houlder the e+pen!e! therefor( the Supreme Court find petitioner/! propo!al for a DNA te!ting to "e .uite rea!ona"le and complainant/! aver!ion to the te!t !urpri!ing. If her claim that petitioner fathered her child i! really true( !he ha! no rea!on to fear the re!ult of the te!t for it would "e another evidence in her favor. Eoreover thi! ca!e !hould "e decided on a !trong foundation of truth and 0u!tice rather than on "lind adherence to prima "acie rule!. #he Court preferred to regard thi! admini!trativeca!e a! a .ue!t for truth and 0u!tice rather than a! a mere game of rule!. No rule i! intended to "e !o rigid a! to em"arra!! the admini!tration of 0u!tice in it endeavor to a!certain the truth. vi . Ri3/. A3ains. %el# ,Inc(i-ina.i"n is A00lica)le ."

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Tes.i-"nial Evidence < n". 5/en ").ainin3 DNA sa-0les 8"taining DNA !ample! from an accu!ed in a criminal ca!e or from th re!pondent in a paternity ca!e( contrary to the "elief of re!pondent in thi! action( will not violate the right again!t !elf'incrimination. 9.1. People . !atar.27 Qatar claimed that the compul!ory e+traction o hi! "lood !ample for DNA te!ting( a! well a! the te!ting it!elf( violated hi! righ again!t !elf'incrimination( a! em"odied in "oth Section! 19 and 1D of Article III of the Con!titution. #he Supreme Court addre!!ed thi! a! follow!< #he contention i! untena"le. #he %ernel of the right i! not again!t all compul!ion( "ut again!t te!timonial compul!ion. #he right again!t !elf'incrimination i! !imply again!t the legal proce!! of e+tracting from the lip! of the accu!ed an admi!!ion of guilt. It doe! not apply where the evidence !ought to "e e+cluded i! not an incrimination "ut a! part of o"0ect evidence. #he Court ruled in People v. Ron%ero I=.R. No. 197H3D( 2 Decem"er 1222( 49: SCRA 434K that although accu!ed' appellant in!i!ted that hair !ample! were forci"ly ta%en from him and !u"mitted to the National ?ureau of Inve!tigation for foren!ic e+amination( the hair !ample! may "e admitted in evidence again!t him( for what i! pro!cri"ed i! the u!e of te!timonial compul!ion or any evidence communicative in nature ac.uired from the accu!ed under dure!!. >ence( a per!on may "e compelled to !u"mit to fingerprinting( photographing( paraffin( "lood and DNA( a! there i! no te!timonial compul!ion involved. 5nder People v. 2allar%e( I=.R. No. 144:97( 9D )e"ruary 9:::( 497 SCRA 347K where immediately after the incident( the police authoritie! too% picture! of the accu!ed without the pre!ence of coun!el( we ruled that there wa! no violation of the right again!t !elf'incrimination. #he accu!ed may "e compelled to !u"mit to a phy!ical e+amination to determine hi! involvement in an offen!e of which he i! accu!ed. 9.2. )errera . 2lba.29 #he )ir!t Divi!ion of the Supreme Court through &u!tice Carpio ha! the opportunity to write a"out the pro"ative value of DNA analy!i! a! evidence. #he Court !aid< Section 1D( Article 4 of the 123D Con!titution provide! that Fno per!on !hall "e compelled to "e a witne!! again!t him!elf.G Petitioner a!!ert! that o"taining !ample! from him for DNA te!ting violate! hi! right again!t !elf'incrimination. RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

Petitioner ignore! our earlier pronouncement! that the privilege i! applica"le only to te!timonial evidence. Again( we .uote relevant portion! of the trial court/! )e"ruary 9::: 8rder with approval< 8"taining DNA !ample! from an accu!ed in a criminal ca!e or from the re!pondent in a paternity ca!e( contrary to the "elief of re!pondent in thi! action( will not violate the right again!t !elf'incrimination. #hi! privilege applie! only to evidence that i! communicative in e!!ence ta%en under dure!! ,People vs. Clvis( 17J SCRA 714( 123D-. #he Supreme Court ha! ruled that the right again!t !elf'incrimination i! 0u!t a prohi"ition on the u!e of phy!ical or moral compul!ion to e+tort communication ,te!timonial evidence- from a defendant( not an e+clu!ion of evidence ta%en from hi! "ody when it may "e material. A! !uch( a defendant can "e re.uired to !u"mit to a te!t to e+tract viru! from hi! "ody ,a! cited in People vs. Clvis( Supra-B the !u"!tance emitting from the "ody of the accu!ed wa! received a! evidence for act! of la!civiou!ne!! ,1& vs. 'an 'eng( 94 Phil. 1J7-B morphine forced out of the mouth wa! received a! proof ,1& vs. Cng &iu Hong( 4H Phil. D47-B an order "y the 0udge for the witne!! to put on pair of pant! for !iCe wa! allowed ,People vs. Cta%ora( 3H Phil. 9JJ-B and the court can compel a woman accu!ed of adultery to !u"mit for pregnancy te!t ,Villa"lor vs. &ummers( J1 Phil. H9-( !ince the gi!t of the privilege i! the re!triction on testimonial compulsion. #he policy of the )amily Code to li"eraliCe the rule on the inve!tigation of the paternity and filiation of children( e!pecially of illegitimate children( i! without pre0udice to the right of the putative parent to claim hi! or her own defen!e!. I3en%o9a v. -ourt o" Appeals( =.R. No. 3H4:9( 9J Septem"er 1221( 9:1 SCRA HD7K ;here the evidence to aid thi! inve!tigation i! o"taina"le through the facilitie! of modern !cience and technology( !uch evidence !hould "e con!idered !u"0ect to the limit! e!ta"li!hed "y the law( rule!( and 0uri!prudence. 9.!. 2gu*t'# . +ourt o( 2ppeal*.2; &u!tice Corona !aid< 8ver the year!( the Supreme Court ha! e+pre!!ly e+cluded !everal %ind! of o"0ect evidence ta%en from the per!on of the accu!edfrom the realm of !elf'incrimination. #he!e include photograph!( IPeople v. 2allar%e( 439 Phil. D13 ,9:::-K hair( IPeople v. Ron%ero, 4D3 Phil. 194 ,1222-K and other "odily !u"!tance!. I1.&. v. 'an 'eng( 94 Phil. 1J7 ,1219-K #he Supreme Court have al!o declared a!

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con!titutional !everal procedure! performed on the accu!ed !uch a! pregnancy te!t! for women accu!ed of adultery( IVilla"lor v. &ummers( J1 Phil. H9 ,129:-K e+pul!ion of morphine from one/! mouth I 1.&. v. Cng &iu Hong( 4H Phil. D47 ,121D-K and the tracing of one/! foot to determine it! identity with "loody footprint!. I1.&. v. &alas( 97 Phil. 44D ,1214-K In *imene9 v. -aDi9ares( I1:2 Phil. 9D4 ,12H:-K the Supreme Court even authoriCed the e+amination of a woman/! genitalia( in an action for annulment filed "y her hu!"and( to verify hi! claim that !he wa! impotent( her orifice "eing too !mall for hi! peni!. Some of the!e procedure! were( to "e !ure( rather inva!ive and involuntary( "ut all of them were con!titutionally !ound. DNA te!ting and it! re!ult!( per our ruling in Yatar( I=.R. No. 17:99J( 12 Eay 9::JK are now !imilarly accepta"le. Nor doe! petitioner/! invocation of hi! right to privacy per!uade u!. In Cple v. 'orres(I47J Phil. 2J3 ,1223-K where the Supreme Court !truc% down the propo!ed national computeriCed identification !y!tem em"odied in Admini!trative 8rder No. 4:3( the Supreme Court !aid< 5n no uncertain terms, )e also un%erscore that the right to privacy %oes not bar all incursions into in%ivi%ual privacy. 'he right is not inten%e% to sti"le scienti"ic an% technological a%vancements that enhance public service an% the common goo%... Intru!ion! into the right mu!t "e accompanied "y proper !afeguard! that enhance pu"lic !ervice and the common good. >i!torically( it ha! mo!tly "een in the area! of legality of !earche! and !eiCure!( IRepublic v. &an%iganbayan( et al., =.R. No. 1:JDH3, @. *uly @EEA, /E7 &-RA .EF an% the in"ringement o" privacy o" communication GHaterous +rug v. , R-, et al.( 4J7 Phil. 239 ,122D-B Iulueta v. -A, et al.( 49J Phil. H4 ,122H-K )here the constitutional right to privacy has been critically at issue. PetitionerBs case involves neither an%, as alrea%y state%, his argument that his right against sel":incrimination is in jeopar%y hol%s no )ater. His hollo) invocation o" his constitutional rights elicits no sympathy here "or the simple reason that they are not in any )ay being violate%. 5", in a criminal case, an accuse% )hose very li"e is at sta(e can be compelle% to submit to +,A testing, the &upreme -ourt sai% that it see no reason )hy, in this civil case, a person )ho %oes not "ace such %ire conse;uences cannot be or%ere% to %o the same. vii . F"(ei3n 4*(is0(*dence "n DNA Anal sis ci.ed in P/ili00ine Case La5s RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

8.5. 2gu*t'# . +ourt o( 2ppeal*.49 #he Supreme Court had the chanceof enumerating and di!cu!!ing 5nited State! &uri!prudence on DNA analy!i! in the following way< DNA paternity te!ting fir!t came to prominence in the 5nited State!( where it yielded it! fir!t official re!ult! !ometime in 1237. In the decade that followed( DNA rapidly found wide!pread general acceptance. I2reco v. -oleman( H17 N.;. 9d 913 ,Eich. 9:::-K Several ca!e! decided "y variou! State Supreme Court! reflect the total a!!imilation of DNA te!ting into their rule! of procedure and evidence. #he ca!e of Hilson v. umb I131 Ei!c 9d 1:44 ,1222-K !how! that DNA te!ting i! !o commonly accepted that( in !ome in!tance!( ordering the procedure ha! "ecome a mini!terial act. #he Supreme Court of St. $awrence County( New Qor% allowed a party who had already ac%nowledged paternity to !u"!e.uently challenge hi! prior ac%nowledgment. DNA te!ting al!o appear! el!ewhere in the New Qor% )amily Court Act< INQSC$( Ch. H3H( Article 7( Part 4( Section 749K T749. =enetic mar%er and DNA te!t!B admi!!i"ility of record! or report! of te!t re!ult!B co!t! of te!t!. a- #he court !hall advi!e the partie! of their right to one or more genetic mar%er te!t! or DNA te!t! and( on the court/! own motion or the motion of any party( !hall order the mother( her child and the alleged father to !u"mit to one or more genetic mar%er or DNA te!t! of a type generally ac%nowledged a! relia"le "y an accreditation "ody de!ignated "y the !ecretary of th federal department of health and human !ervice! and performe "y a la"oratory approved "y !uch an accreditation "ody and "y the commi!!ioner of health or "y a duly .ualified phy!ician to aid in the determination of whether the alleged father i! or i! not the father of the child. No !uch te!t !hall "e ordered( however( upon a written finding "y the court that it i! not in the "e!t intere!t! of the child on the "a!i! of res ju%icata( e.uita"le e!toppel( or the pre!umption of legitimacy of a child "orn to a married woman. #he record or report of the re!ult! of any !uch genetic mar%er or DNA te!t ordered pur!uant to thi! !ection or pur!uant to !ection one hundred eleven'% of the !ocial !ervice! law !hall "e received in evidence "y the court pur!uant to !u"divi!ion ,e- of rule forty'five hundred eighteen of the civil practice law and rule! where no timely o"0ection in writing ha! "een made thereto and that if !uch timely o"0ection! are not made( they !hall "e deemed waived

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and !hall not "e heard "y the court. If the record or report of the re!ult! of any !uch genetic mar%er or DNA te!t or te!t! indicate at lea!t a ninety'five percent pro"a"ility of paternity( the admi!!ion of !uch record or report !hall create a re"utta"le pre!umption of paternity( and !hall e!ta"li!h( if unre"utted( the paternity of and lia"ility for the !upport of a child pur!uant to thi! article and article four of thi! act. ,"- ;henever the court direct! a genetic mar%er or DNA te!t pur!uant to thi! !ection( a report made a! provided in !u"divi!ion ,a- of thi! !ection may "e received in evidence pur!uant to rule forty'five hundred eighteen of the civil practice law and rule! if offered "y an party. ,c- #he co!t of any te!t ordered pur!uant to !u"divi!ion ,a- of thi! !ection !hall "e( in the fir!t in!tance( paid "y the moving party. If the moving party i! financially una"le to pay !uch co!t( the court may direct any .ualified pu"lic health officer to conduct !uch te!t( if practica"leB otherwi!e( the court may direct payment from the fund! of the appropriate local !ocial !ervice! di!trict. In it! order of di!po!ition( however( the court may direct that the co!t of any !uch te!t "e apportioned "etween the partie! according to their re!pective a"ilitie! to pay or "e a!!e!!ed again!t the party who doe! not prevail on the i!!ue of paternity( unle!! !uch party i! financially una"le to pay. ,empha!i! !uppliedIn R.>. v. -.>.H. ID79 So. 9d 1:12 ,Ei!!. 1222-K a deci!ion of the Ei!!i!!ippi Supreme Court( DNA te!t! were u!ed to prove that >.;.( previou!ly thought to "e an off!pring of the marriage "etween A.C.;. and C.E.;.( wa! actually the child of R.E. with whom C.E.;. had( at the time of conception( maintained an adulterou! relation!hip. In >rie -ounty +epartment o" &ocial &ervices on behal" o" 'i""any 3.H. v. 2reg 2.( I9D4 AD 9d 212 ,NQ 9:::-K the Jth Department of the New Qor% Supreme Court/! Appellate Divi!ion allowed =.=.( who had "een ad0udicated a! #.E.>./! father "y default( to have the !aid 0udgment vacated( even after !i+ year!( once he had !hown through a genetic mar%er te!t that he wa! not the child/! father. In thi! ca!e( =.=. only re.ue!ted the te!t! after the Department of Social Service!( !i+ year! after =.=. had "een ad0udicated a! #.E.>./! father( !ought an increa!e in hi! !upport o"ligation to her. In 2reco v. -oleman( I=reco v. Coleman( H17 N.;. 9d

913 ,Eich. 9:::-K the Eichigan Supreme Court while ruling on the con!titutionality of a provi!ion of law allowing non' modifia"le !upport agreement! pointed out that it wa! "ecau!e of the difficulty of determining paternity "efore the advent of DNA te!ting that !uch !upport agreement! were nece!!ary< A! a re!ult of DNA te!ting( the accuracy with which paternity can "e proven ha! increa!ed !ignificantly !ince the partie! in thi! law!uit entered into their !upport agreement ,current te!ting method! can determine the pro"a"ility of paternity to 22.222222P accuracy-. >owever( at the time the partie! "efore u! entered into the di!puted agreement( proving paternity wa! a very !ignificant o"!tacle to an illegitimate child/! acce!! to child !upport. #he fir!t reported re!ult! of modern DNA paternity te!ting did not occur until 1237. ,FIn fact( ince it! fir!t reported re!ult! in 1237( DNA matching ha! progre!!ed to Ogeneral acceptance in le!! than a decade/G-. 8f cour!e( while prior "lood'te!ting method! could e+clude !ome male! from "eing the po!!i"le father of a child( tho!e method! could not affirmatively pinpoint a particular male a! "eing the father. #hu!( when then!ettlement agreement "etween the pre!ent partie! wa! entered in 123:( e!ta"li!hing paternity wa! a far more difficult ordeal than at pre!ent. Conte!ted paternity action! at that time were often no more than credi"ility conte!t!. Con!e.uently( in every conte!ted paternity action( o"taining child !upport depended not merely on whether the putative father wa!( in fact( the child/! "iological father( "ut rather on whether the mother could prove to a court of law that !he wa! only !e+ually involved with one man''the putative father. Allowing partie! the option of entering into private agreement! in lieu of proving paternity eliminated the ri!% that the mother would "e una"le meet her "urden of proof. In Ra""erty v. Per(ins( D7D So. 9d 229 ,Ei!!. 9:::the Supreme Court of Ei!!i!!ippi ruled that DNA te!t re!ult! !howing paternity were !ufficient to overthrow the pre!umption of legitimacy of a child "orn during the cour!e of a marriage< #he pre!umption of legitimacy having "een re"utted "y the re!ult! of the "lood te!t eliminating Per%in! a! &u!tin/! father( even con!idering the evidence in the light mo!t favora"le to

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Per%in!( we find that no rea!ona"le 0ury could find that Ea!ter i! not &u!tin/! father "a!ed upon the 22.2JP pro"a"ility of paternity concluded "y the DNA te!ting. In &.*.F. an% *.-.F. v. R.-.H.( H17 N.;. 9d 744 ,ND 9:::- the North Da%ota Supreme Court upheld an order for genetic te!ting given "y the Court of Appeal!( even after trial on the merit! had concluded without !uch order "eing given. Significantly( when &.C.).( the mother( fir!t filed the ca!e for paternity and !upport with the Di!trict Court( neither party re.ue!ted genetic te!ting. It wa! only upon appeal from di!mi!!al of the ca!e that the appellate court remanded the ca!e and ordered the te!ting( which the North Da%ota Supreme Court upheld. #he ca!e of 0ohl v. Amun%son, H9: N.;.9d H:H ,SD 9::1decided "y the Supreme Court of South Da%ota( demon!trated that even default 0udgment! of paternity could "e vacated after the ad0udicated father had( through DNA te!ting( e!ta"li!hed nonpaternity. In thi! ca!e( 6ohl( having e+cluded him!elf a! the father of Amund!on/! child through DNA te!ting( wa! a"le to have the default 0udgment again!t him vacated. >e then o"tained a ruling ordering Amund!on to reim"ur!e him for the amount! withheld from hi! wage! for child !upport. #he Court !aid F,w-hile Amund!on may have a remedy again!t the father of the child( !he !u"mit,ted- no authority that re.uire,d6ohl to !upport her child. Contrary to Amund!on/! po!ition( the fact that a default 0udgment wa! entered( "ut !u"!e.uently vacated( ,did- not foreclo!e 6ohl from o"taining a money 0udgment for the amount withheld from hi! wage!.G In 3.A.&. v. 3ississippi +ept. o" Human &ervices( 3J9 So. 9d 79D ,Ei!!. 9::4- another ca!e decided "y the Supreme Court of Ei!!i!!ippi( it wa! held that even if paternity wa! e!ta"li!hed through an earlier agreed order of filiation( child !upport and vi!itation order! could !till "e vacated once DNA te!ting e!ta"li!hed !omeone other than the named individual to "e the "iological father. #he Ei!!i!!ippi >igh Court reiterated thi doctrine in Hilliams v. Hilliams. 3J4 So. 9d D9: ,Ei!!. 9::4-. ;.2. He((e(a v. Al)a2> #he )ir!t Divi!ion of the Supreme Court through &u!tice Carpio !aid<

In Frye . :.S.

I7J App.D.C. JH( 924 ). 1:14 ,1294-A(

the trial court convicted )rye of murder. )rye appealed hi! conviction to the Supreme Court of the Di!trict of Colum"ia. During trial( )rye/! coun!el offered an e+pert witne!! to te!tify on the re!ult of a !y!tolic "lood pre!!ure deception te!t made on defendant. #he !tate Supreme Court affirmed )rye/! conviction and ruled that Fthe !y!tolic "lood pre!!ure deception te!t ha! not yet gained !uch !tanding and !cientific recognition among phy!iological and p!ychological authoritie! a! would 0u!tify the court! in admitting e+pert te!timony deduced from the di!covery( development( and e+periment! thu! far made.G #he Frye !tandard of general acceptance !tate! a! follow!< &u!t when a !cientific principle or di!covery cro!!e! the line "etween the e+perimental and demon!tra"le !tage! i! difficult to define. Somewhere in thi! twilight Cone the evidential force of the principle mu!t "e recogniCed( and while court! will go a lon way in admitting e+pert te!timony deduced from a well recogniCed !cientific principle or di!covery( the thing from which the deduction i! made mu!t "e !ufficiently e!ta"li!hed to have gained general acceptance in the particular field in which it "elong!. In 1232( State . Schwartz IJJD N.;.9d J99 ,Einn. Sup. Ct. 1232-K modified the Frye !tandard. SchwartC wa! charged with !ta""ing and murder. ?lood!tained article! and "lood !ample! of the accu!ed and the victim were !u"mitted for DNA te!ting to a government facility and a private facility. #he pro!ecution introduced the private te!ting facility/! re!ult! over SchwartC/! o"0ection. 8ne of the i!!ue! "rought "efore the !tate Supreme Court included the admi!!i"ility of DNA te!t re!ult! in a criminal proceeding. #he !tate Supreme Court concluded that< ;hile we agree with the trial court that foren!ic DNA typing ha! gained general acceptance in the !cientific community( we hold that admi!!i"ility of !pecific te!t re!ult! in a particular ca!e hinge! on the la"oratory/! compliance with appropriate !tandard! and control!( and the availa"ility of their te!ting data and re!ult!. In 1224( Daubert . Merrell Dow Pharmaceut'cal*, "#c. I7:2 5S 7D2( 114 S.Ct. 9D3H ,1224-K further modified the Frye-Schwartz !tandard. Daubert wa! a product lia"ility ca!e where "oth the trial and appellate court! denied the admi!!i"ility of an e+pert/! te!timony "ecau!e it failed to

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meet the Frye !tandard of Fgeneral acceptance.G #he 5nited State! Supreme Court ruled that in federal trial!( the )ederal Rule! of Evidence have !uper!eded the Frye !tandard. Rule J:1 define! relevant evidence( while Rule J:9 provide! the foundation fo admi!!i"ility of evidence. #hu!< Rule J:1. FRelevant evidenceG i! defined a! that which ha! any Ftendency to ma%e the e+i!tence of any fact that i! of con!e.uence to the determination of the action more pro"a"le or le!! pro"a"le than it would "e without the evidence. Rule J:9. All relevant evidence i! admi!!i"le( e+cept a! otherwi!e provided "y the Con!titution of the 5nited State!( "y Act of Congre!!( "y the!e rule!( or "y other rule! pre!cri"ed "y the Supreme Court pur!uant to !tatutory authority. Evidence which i! not relevant i! not admi!!i"le. Rule D:9 of the )ederal Rule! of Evidence governing e+pert te!timony provide!< If !cientific( technical( or other !pecialiCed %nowledge will a!!i!t the trier of fact to under!tand the evidence or to determine a fact in i!!ue( a witne!! .ualified a! an e+pert " %nowledge( !%ill( e+perience( training( o education( may te!tify thereto in the form of an opinion or otherwi!e. Daubert caution! that departure from the Frye !tandard of general acceptance doe! not mean that the )ederal Rule! do not place limit! on the admi!!i"ility of !cientific evidence. Rather( the 0udge mu!t en!ure that the te!timony/! rea!oning or method i! !cientifically valid and i! relevant to the i!!ue. Admi!!i"ility would depend on factor! !uch a! ,1- whether the theory or techni.ue can "e or ha! "een te!tedB ,9- whether the theory or techni.ue ha! "een !u"0ected to peer review and pu"licationB ,4- the %nown or potential rate of errorB ,Jthe e+i!tence and maintenance of !tandard! controlling the techni.ue/! operationB and ,7- whether the theory or techni.ue i! generally accepted in the !cientific community. Another product lia"ility ca!e( Kumho %'re* +o. . +arm'chael( I79H 5.S. 14D( 112 S.Ct. 11HD ,1222-K further modified the Daubert !tandard. #hi! led to the amendment of Rule D:9 in 9::: and which now read! a! follow!<

If !cientific( technical or other !pecialiCed %nowledge will a!!i!t the trier of fact to under!tand the evidence or to determine a fact in i!!ue( a witne!! .ualified a! an e+pert "y %nowledge( !%ill( e+perience( training( or education( may te!tify thereto in the form of an opinion or otherwi!e( if ,1- the te!timony i! "a!ed upon !ufficient fact! or data( ,9- the te!timony i! the product of relia"le principle! and method!( and ,4- the witne!! ha! applied the principle! and method!relia"ly to the fact! of the ca!e. viii . %alien. P"in.s "n ./e R*le "n DNA Evidence #he Rule on DNA Evidence provide! for the !cope( the procedure in the application and order for DNA #e!ting( the Court/! a!!e!!ment of the pro"ative value of DNA evidence( the evaluation of the relia"ility of the methodology u!e in DNA #e!ting( the evaluation of DNA #e!ting re!ult!( po!t' conviction DN #e!ting( and the confidentiality of the DNA Evidence. =.1. %c"0e "# ./e R*le "n Evidence. #hi! Rule !hall apply whenever DNA evidence i! offered( u!ed( or propo!ed to "e offered or u!ed a! evidence iall criminal and civil action! a! well a! !pecial proceeding! ,Section 1 of Rule on DNA Evidence-. )urthermore( Rule 9 provide! the application of other Rule! on Evidence< &ection @. Application o" other Rules on >vi%ence.85n all matters not speci"ically covere% by this Rule, the Rules o" -ourt n an% other pertinent provisions o" la) on evi%ence shall apply. =.2. A00lica.i"n #"( DNA Tes.in3 O(de(. 5nder the Rule( the appropriate court may( at any time( either motu proprio or on application of an per!on with a legal intere!t in the matter in litigation( order a DNA te!ting after due hearing and notice to the partie!. Additionally( the Rule doe! not preclude the conduct of DNA #e!ting "efore the commencement of a !uit or proceeding( a! thi! may "e done even without prior court order at the "ehe!t of any party( including law enforcement agencie!. Section! J and 7 further !tate the following< &ection /. Application "or +,A 'esting Cr%er.8 'he appropriate court may, at any time, either motu proprio or on application o" any person )ho has a legal interest in the matter in litigation, or%er a +,A testing. &uch or%er shall issue a"ter %ue hearing an% notice to the parties upon a sho)ing o" the "ollo)ing6 !a# A biological sample e4ists that is relevant to the case$ !b# 'he biological sample6 !i# )as not previously subjecte%to the type o" +,A

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testing no) re;ueste%$ or !ii# )as previously subjecte% to +,A testing, but the results may re;uire con"irmation "or goo% reasons$ !c# 'he +,A testing uses a scienti"ically vali% techni;ue$ !%# 'he +,A testing has the scienti"ic potential to pro%uce ne) in"ormation that is relevant to the proper resolution o" the case$ an% !e# 'he e4istence o" other "actors, i" any, )hich the court may consi%er as potentially a""ecting the accuracy or integrity o" the +, testing. 'his Rule shall not preclu%e a +,A testing, )ithout nee% o" a prior court or%er, at the behest o" any party, inclu%ing la) en"orcement agencies, be"ore a suit or procee%ing is commence%. &ection J. +,A 'esting Cr%er.85" the court "in%s that the re;uirements in &ection / hereo" have been complie% )ith, the court shall 8 !a# Cr%er, )here appropriate, that biological samples be ta(en "rom any person or crime scene evi%ence$ !b# 5mpose reasonable con%itions on +,A testing %esigne% to protect the integrity o" the biological sample, the testing process an% the reliability o" the test results, inclu%ing the con%ition that the +,A test results shall be simultaneously %isclose% to parties involve% n the case$ an% !c# 5" the biological sample ta(en is o" such an amount that prevents the con%uct o" con"irmatory testing by the other or the a%verse party an% )here a%%itional biological samples o" the same (in% can no longer be obtaine%, issue an or%er re;uiring all parties to the case or procee%ings to )itness the +,A testing to be con%ucte%. An or%er granting the +,A testing shall be imme%iately e4ecutory an% shall not be appealable. Any petition "or certiorari initiate% there"rom shall not, in any )ay, stay the implementation thereo", unless a higher court issues an injunctive or%er. 'he grant o" a +,A testing application shall not be construe% as an automatic a%mission into evi%ence o" any component o" the +,A evi%ence that may be obtaine% as a result thereo". =.!. P"s. C"nvic.i"n DNA Tes.in3. #he Rule provide! that po!tconvictio DNA #e!ting will "e availa"le to the pro!ecution or any per!o convicted "y final and e+ecutory RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

0udgment( without prior need of court order in ca!e! wherein a "iological !ample relevant to a ca!e e+i!t! and the te!ting thereof would pro"a"ly re!ult in the rever!al or modification of a 0udgment of conviction. Should the te!t re!ult! prove favora"le to the convict( either the convict or the pro!ecution may file a petition for a writ of habeas corpus in the court of origin. #he court !hall then determine after due hearing whether the petition i! meritoriou!( and if !o( !hall rever!e or modify the 0udgment of conviction and order the convict/! relea!e unle!! the latter i! "eing detained for !ome other lawful cau!e. #he Rule !tate! that an order granting DNA #e!ting !hall "e immediatel e+ecutory and !hall not "e appeala"le. It empha!iCe! that any petition fo certiorari initiated in thi! re!pect !hall not !tay the implementation of the order( unle!! a higher court i!!ue! an in0unctive writ. Section! H and 1: further clarify< &ection K. Post:conviction +,A 'esting.8Post: conviction +,A testing may be available, )ithout nee% o" prior court or%er, to the prosecution or any person convicte% by "inal an% e4ecutory ju%gment provi%e% that !a# a biological sample e4ists, !b# such sample is relevant to the case, an% !c# the testing )oul% probably result in the reversal or mo%i"ication o" the ju%gment o" conviction. &ection .E. Post:conviction +,A 'esting. Reme%y i" the Results Are Favorable to the -onvict.8 'he convict or the prosecution may "ile a petition "or a )rit o" habeas corpus in the court o" origin i" the result o" the post:conviction +,A testing are "avorable to the convict. 5 case the court, a"ter %ue hearing, "in%s the petition to be meritorious it shall reverse or mo%i"y the ju%gment o" conviction an% or%er the release o" the convict, unless continue% %etention is justi"ie% "or a la)"ul cause. A similar petition may be "ile% either in the -ourt o" Appeals or the &upreme -ourt, or )ith any member o" sai% courts, )hich mab con%uct a hearing thereon or reman% the petition to the court o" origi an% issue the appropriate or%ers. =.7. P(")a.ive Val*e< Relia)ili. < Eval*a.i"n< and P(ese(va.i"n "# DNA Evidence. #he grant of a DNA #e!ting application !hall not "e con!trued a! an automatic admi!!ion into evidence of any component of the DNA

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evidence that may "e o"tained a! a re!ult thereof. #he appropriate court i! li%ewi!e empowered "y the Rule to impo!e rea!ona"le condition! on DNA te!ting to protect the integrity of the "iological !ample( the te!ting proce!!( and the relia"ility of the te!t re!ult!. Section! D( 3( 2( and 19 provide the following< &ection. 7. Assessment o" probative value o" +,A evi%ence.8 5n assessing the probative value o" the +,A evi%ence presente%, the court shall consi%er the "ollo)ing6 !a# 'he chain o" custo%y, inclu%ing ho) the biological samples )ere collecte%, ho) they )ere han%le%, an% the possibility o" contamination o" the samples$ !b# 'he +,A testing metho%ology, inclu%ing the proce%ure "ollo)e% in analy9ing the samples, the a%vantages an% %isa%vantages o" the proce%ure, an% compliance )ith the scienti"ically vali% stan%ar%s in con%ucting the tests$ !c# 'he "orensic +,A laboratory, inclu%ing accre%itation by any reputable stan%ar%s:setting institution an% the ;uali"ication o" the analyst )ho con%ucte% the tests. 5" the laboratory is not accre%ite%, the relevant e4perience o" the laboratory in "orensic case)or an% cre%ibility shall be properly establishe%$ an% !%# 'he reliability o" the testing result, as hereina"ter provi%e%. 'he provisions o" the Rules o" -ourt concerning the appreciation o" evi%ence shall apply suppletorily. &ection <. Reliability o" +,A 'esting 3etho%ology.85n evaluating )hether the +,A testing metho%ology is reliable, the court shall consi%er the "ollo)ing6 !a# 'he "alsi"iability o" the principles or metho%s use%, that is, )hether the theory or techni;ue can be an% has been teste%$ !b# 'he subjection to peer revie) an% publication o" the principles or metho%s$ !c# 'he general acceptance o" the principles or metho%s by the relevant scienti"ic community$ !%# 'he e4istence an% maintenance o" stan%ar%s an% controls to ensure the correctness o" %ata generate%$ !e# 'he e4istence o" an appropriate re"erence population %atabase$ an% !" # 'he general %egree o" con"i%ence attribute% to mathematical calculations use% RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

in comparing +,A pro"iles an% signi"icance an% limitation o" calculations use% in comparing

the statistical +,A pro"iles.

&ection =. >valuation o" +,A 'esting Results.8 5n evaluating the results o" +,A testing, the court shall consi%er the "ollo)ing6 !a# 'he evaluation o" the )eight o" matching +,A evi%ence or the relevance o" mismatching +,A evi%ence$ !b# 'he results o" the +,A testing in the light o" the totality o" the other evi%ence presente% in the case$ an% that !c# +,A results that e4clu%e the putative parent "rom paternity shall be conclusive proo" o" non: paternity. 5" the value o" the Probability o" Paternity is less than ==.=?, the results o" the +,A testing shall be consi%ere% as corroborative evi%ence. 5" the value o" the Probability o" Paternity is ==.=? or higher, there shall be a %isputable presumption o" paternity. &ection .@. Preservation o" +,A >vi%ence.8'he trial court shall preserve the +,A evi%ence in its totality, inclu%ing all biological samples, +,A pro"iles an% results or other genetic in"ormation obtaine% "rom +,A testing. For this purpose, the court may or%er the appropriate government agency to preserve the +,A evi%ence as "ollo)s6 !a# 5n criminal cases6 i. "or not less than the perio% o" time that any person is un%er trial "or an o""ense$ or, ii. in case the accuse% is serving sentence, until such time as the accuse% has serve% his sentence$ an% !b# 5n all other cases, until such time as the %ecision in the case )here the +,A evi%ence )as intro%uce% has become "inal an% e4ecutory. 'he court may allo) the physical %estruction o" a biological sample be"ore the e4piration o" the perio%s set "orth above, provi%e% that6 !a# A court or%er to that e""ect has been secure%$ or !b# 'he person "rom )hom the +,A sample )as obtaine% has consente% in )riting to the %isposal o" the +,A evi%ence. =.7. C"n#iden.iali. "# DNA Evidence. #he Rule provide! that DNA profile! and all re!ult! or information o"tained from DNA te!ting !hall "e treated a! confidential( and !hould only "e relea!ed to per!on! authoriCed "y the Court. Any

unauthoriCed di!clo!ure of a DNA profile will "e treated a! indirect contempt court. Section 11 of the Rule provide! the following< &ection ... -on"i%entiality.8+,A pro"iles an% all results or other in"ormation obtaine% "rom +,A testing shall be con"i%ential. >4cept upon or%er o" the court, a +,A pro"ile an% all results or otherb in"ormation obtaine% "rom +,A testing shall only be release% to any o" the "ollo)ing, un%er such terms an% con%itions as may be set "orth by the court6 !a# Person "rom )hom the sample )as ta(en$ !b# a)yers representing parties in the case or action )here the +,A evi%ence is o""ere% an% presente% or sought to be o""ere% an% presente%$ !c# a)yers o" private complainants in a criminal action$ !%# +uly authori9e% la) en"orcement agencies$ an% !e# Cther persons as %etermine% by the court. Hhoever %iscloses, utili9es or publishes in any "orm any in"ormation concerning a +,A pro"ile )ithout the proper court or%er shall be liable "or in%irect contempt o" the court )herein such +,A evi%ence )as o""ere%, presente% or sought to be o""ere% an% presente%. Hhere the person "rom )hom the biological sample )as ta(en "iles a )ritten veri"ie% re;uest to the court that allo)e% the +,A testing "or the %isclosure o" the +,A pro"ile o" the person an% all results or other in"ormation obtaine% "rom the +,A testing, the same may be %isclose% to the persons name% in the )ritten veri"ie% re;uest. i' . 4*(is0(*dence laid d"5n a#.e( ./e e##ec.ivi. "# ./e R*le "n DNA Evidence >.1. People . :ma#'to.7? #he Supreme Court recently applied for the fir!t time the Rule on +,A >vi%ence after the Rule too% effect la!t 8cto"er 17. #he Supreme Court through &u!tice Dante 8. #inga remanded the ca!e again!t 5manito to the Regional #rial Court ,R#C- for reception of evidence in appropriate hearing!( ruled that Fthe determination of whether the appellant i! the father of the rape victim/! child I"orn from the alleged rapeK( which may "e accompli!hed through deo+yri"onucleic acid te!ting( i! material to the fair and correct ad0udication of the in!tant appeal. 5nder Section J of the Rule on DNA Evidence, the court! are authoriCed( after due hearing and notice( motu RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

proprio to order a DNA te!ting.G #hi! i! what the >igh Court availed of thi! mea!ure!. #he Court ruled that the R#C mu!t fir!t determine the fea!i"ility of DNA te!ting in accordance with the !tandard! !et in the Rule. 5pon receipt of the te!t re!ult!( it !hall "e incum"ent upon the partie! to avail of it and the R#C to a!!e!! !uch re!ult! a! evidence in %eeping with Section! D and 3 of the Rule. #he Court al!o en0oined the R#C to o"!erve the re.uirement! of confidentiality and pre!ervation of the DNA evidence under Section! 11 and 19 of the !aid Rule. )urthermore( the >igh Court !tated the following<

In a!!e!!ing the pro"ative value of DNA evidence( the R#C !hall con!ider( among other thing!( the following data< how the !ample! were collected( how they were handled( the po!!i"ility of contamination of the !ample!( the procedure followed in analyCing the !ample!( whether the proper !tandard! and procedure! were followed in conducting the te!t!( and the .ualification of the analy!t who conducted the te!t!. Eoreover( the court a ;uo mu!t en!ure that the proper chain of cu!tody in the handling of the !ample! !u"mitted "y the partie! i! ade.uately "orne in the record!( i.e.< that the !ample! are collected "y a neutral third partyB that the te!ted partie! are appropriately identified at their !ample collection appointment!B that the !ample! are protected with tamper tape at the collection !iteB that all per!on! in po!!e!!ion thereof at each !tage of te!ting thoroughly in!pected the !ample! for tampering and e+plained hi! role in the cu!tody of the !ample! and the act! he performed in relation thereto. >.2. 0*tate o( /#g . D'az.71 A Complaint for compul!ory recognition with prayer for !upport pending litigation wa! filed "y minor DiaC repre!ented "y her mother. R#C rendered a deci!ion declaring Einor DiaC to "e the illegitimate child of defendant 8ng with plaintiff &in%y DiaC( and awarded !upport pen%ente lite. 8ng appealed to the Court of Appeal!. During the pendency of the ca!e( 8ng died and hence E!tate of 8ng wa! !u"!tituted a! the re!pondent. #he Court of Appeal! rule! F#he ca!e i! here"y REEANDED to the court a ;uo for the i!!uance of an order directing the partie! to ma%e arrangement! for DNA analy!i! for the purpo!e of determining the paternity of plaintiff minor DiaC( upon con!ultation and in coordination with la"oratorie! and

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e+pert! on the field of DNA analy!i!.G #he i!!ue! rai!ed "efore the Supreme Court i! Fwhether or not the Court of Appeal! erred when it remanded the ca!e to the court a ;uo for DNA analy!i! de!pite the fact that it i! no longer fea!i"le due to the death of 8ng.G #he Supreme Court through &u!tice Chico'NaCario !tated that the death of the petitioner doe! not ipso "acto negate the application of DNA te!ting for a! long a! there e+i!t! appropriate "iological !ample! of hi! DNA. #hu!( even if 8ng already died( any of the "iological !ample! a! enumerated a"ove a! may "e availa"le( may "e u!ed for DNA te!ting. In thi! ca!e( petitioner ha! not !hown the impo!!i"ility of o"taining an appropriate "iological !ample that can "e utiliCed for the conduct of DNA te!ting and even the death of Rogelio cannot "ar the conduct of DNA te!ting. '. C"ncl*si"n DNA evidence can "e admi!!i"le in Court if it i! "oth relevant to the fact in i!!ue and i! not otherwi!e e+cluded "y !tatute or the Rule! of Court ,i.e.competent- ,Section 4( Rule 193-. #he admi!!i"ility of evidence !hould not "e e.uated with weight of evidence. #he admi!!i"ility of evidence depend! on it! relevance and competence while the weight of evidence pertain! to evidence already admitted and it! tendency to convince and per!uade( or the relia"ility of the DNA evidence. In Philippine 0uri!diction( the re!trictive te!t! for admi!!i"ility e!ta"li!hed "y Frye:&ch)art9 and +aubert:0umho go into the weight of the DNA evidence or the pro"ative value of DNA evidence. Section! D( 3( 2( and 19 of the Rule on DNA Evidence provide the Rule! in the a!!e!!ment of pro"ative value of DNA evidence( relia"ility of DNA te!ting methodology( evaluation of DNA te!ting re!ult!( and the pre!ervation of DNA evidence( re!pectively.

RULES on DNA (UST reviewer) ANA RHEA ECHAVEZ

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