Defense, Drugs Cases, RA 9165 I have been in the business of defending people accused of crimes involving drugs. I can tell 95% of the time, the accused are not they supposed to be. Many Police Officers have the habit of arresting, without as much as following the procedure. The procedure is very easy to follow and it is very disturbing to know the reason why they intentionally deviate from the procedure is because the persons they arrest did not commit the crime or are not in the actual act of committing the crime. In my personal investigation, Police Officers will arrest anybody that their so called assets will point as the pushers or possessors of dangerous drugs, they do not care whether the information is true or not. Casing and actual buy bust is thrown out the window. The Buybust opeartion therefore is more of on paper than on actual facts. Many have confessed to yours truly that it is easier to charge and create the operation in paper and in affidavits than doing the actual operation. Hinging on the fact that they have this legal principle as their friend – “Presumption of Regularity” in the conduct of police operations. Presumption of Innocence is the utmost principle in criminal law, but if we read some cases, this principle has taken the back seat from the presumption of regularity. In some cases, the accused are no longer presumed innocent and MUST try to overthrow the presumption of regularity if the wish to be acquitted, the burden of proof therefore shifted to the accused. Needless to say the height of false conviction has never reached this height, because the courts allow this deviation from procedure. Police Officers are encouraged to do more because the courts would rule that any deviation from the procedure is NOT fatal to the prosecution of cases. I only have one question in mind, is it that hard to follow the procedure? Republic Act 9165 increased the penalty for possession and drug pushing, but it recognized the need to protect the citizens from police officers who would abuse their authority. Section 21 was the safety valve so to speak. (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. The same is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, viz.: (a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved
by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. The first line of defense therefore is to ask the arresting officers to wait and go to the nearest barangay to witness the body search and confirm the whether there is any drugs present. Now if the Operatives denied this request have any relatives to immediately go and have the incident blottered and specify the fact that you requested for the presence of the barangay in witnessing the arrest. Did I say immediately? The earlier the report to the barangay the higher the credibility of the defense. Now if no one witnessed the apprehension then it will be a different matter. here is my second installment of my defenses i use in court. in the first i lay the foundation on what to do in false operations and if you became the victim of such. And if worse we go to court this is usually what i ask or do in court. please do note that we always go back to section 21, RA 9165 as our base defense specially in our cross examination .
Let us start with the Forensic chemist. Sometimes i just enter into stipulations but if you don't feel like it, it is better to cross examine and ask a few questions. remember even if we are in the Philippines there is nothing to stop us applying the CSI doctrine.
First, have the habit of examining the request for laboratory examination and the crime lab report, look at the stamp receipts. in Manila, some of the forensic chemists would ask liaisons to deliver the specimens in court. if you see nothing that will indicate that the forensic chemists delivered the drugs personally in court or someone else delivered it, KEEP IT TO YOURSELF, he he, yes keep it for now.
in cross-examination, ask him or her who delivered the same to the court, most certainly, he would answer that he is, if that is the case, drop the bomb.
if he or she said he cannot just the same drop the bomb and tell him who delivered it. in any way the chain of custody has already been broken.