THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGELIO DE JESUS y QUIZON, alias "ELIONG," accused-appellant.
The Solicitor General for plaintiff-appellee. Rafael D. Abierra Jr. for accused-appellant.
CONCEPCION, JR., J.:
The accused, Rogelio de Jesus y Quizon appeals from the decision of the Circuit Criminal
Court, First Judicial District in its Criminal Case No. CCC-1-80, Isabela (II-329) finding him
guilty beyond reasonable doubt, of the crime of rape as defined and penalized under Article
335, paragraph 2 of the Revised Penal Code and sentencing him, after appreciating in his
favor the mitigating circumstance of voluntary surrender, to suffer the penalty of reclusion
perpetua to indemnify the offended party Clara Mina y Simon in the amount of P10,000.00
plus another P5,000.00 as moral and exemplary damages, without subsidiary imprisonment
in case of insolvency, and to pay the costs.
The facts are as follows:
Clara Mina, an unmarried woman of 28, lived with her parents in barrio Amistad, Alicia,
Isabela (p. 7, tsn., March 21, 1974).
Clara Mina, however, is feeble-minded. She is unable to comb her hair, bathe herself and
wash her clothes (pp. 21, 31, 32, tsn., March 21, 1974). Because of her mental condition,
she just stayed in the house, doing no household chores (p. 31, tsn., Id.).
The accused, Rogelio de Jesus, a 19-year old farmer, who lived in the house of his sister
some 15 meters away from the victim's house, knew of Clara's mental infirmity, and has
often seen her left alone in the house (p. 20, tsn., March 21, 1974; pp. 38, 47, 49, tsn., April
25, 1974).
At about 2:00 o'clock in the afternoon of Jan. 3, 1974, Pastora Simon went out to the field in
order to plant palay, leaving her daughter Clara Mina alone in the house. Her husband
(Clara's father), had gone to a place called Soliven four days before, while the other
members of the household had also left for the field (pp. 17, 18, 19, tsn., March 21, 1974).
That afternoon, Clara Mina was seated on top of a trunk when Rogelio de Jesus suddenly
entered the house, carried her in his arms and laid her on the floor (pp. 8, 13, tsn., March 21,
1974). Objecting to what was being done to her, Clara gave an outcry "Madi! Madi!" (which
translated means "I don't like! I don't like!") Rogelio, ignoring her cries, removed her panties
as well as his own trousers. He lay on top of her, inserted his penis into her vagina and
performed the sexual act (pp. 7, 8, 9, 13,14, 15, tsn., Id.).
Meanwhile, Pastora Simon, who had already walked some 150 meters away from their
house, when sensing it was about to rain, hurried back to the house to get cellophane with
which to shield her from the rain (p. 17, tsn., March 21, 1974). Upon her return to the house,
she found Rogelio de Jesus naked lying on top of Clara Mina whose legs were spread apart
(p. 19, tsn., Id.). Seeing them in that position, she rushed to the kitchen to get a club but
Rogelio spotted her and ran away. (p. 20, tsn., Id.).
The barrio captain, Glicerio Guzman, to whom Pastora Simon had immediately reported the
incident, looked for Rogelio but failed to locate him (p. 20, tsn., March 21, 1974; pp. 10, 20,
tsn., March 22, 1974).

Returning from the barrio captain's house, Pastora Simon investigated Clara, who revealed
to her that she was carried away from the trunk where she was seated, then forcibly laid on
the floor to have sexual intercourse with Rogelio (pp. 20, 21, tsn., March 21, 1974).
The next day - January 4, 1974 - Clara Mina, accompanied by her parents, denounced
Rogelio de Jesus to the police authorities (p. 20, tsn., March 22, 1974). Clara Mina was
examined by Fernando Babaran, Municipal Health Officer of Echague, lsabela at the
Southern Isabela Emergency Hospital, the municipal health officer of Alicia being then on
leave (p. 6, tsn., March 22, 1974). The medical certificate, Exhibit "C", issued by Dr. Babaran,
shows the following findings:
(1) hymenal lacerations at 3 o'clock, 8 o'clock and 11 o'clock.
(2) vagina admits one finger with ease. Two fingers with difficulty.
(3) fresh perineal abrasion.
(4) smear, not done due to lack of microscope.
(5) contusion - left temporal area. Lesions to heal within one week. (p. 3, Record).
According to Dr. Babaran, the abrasions were possibly inflicted the day prior to the
examination and that the contusion on the left temporal area of the girl's head could have
been caused when her head was pushed against a hard object (pp. 11, 12, tsn., March 22,
1974).
Subsequently, Rogelio de Jesus was surrendered by his brother-in-law, a councilor to the
Alicia Police Department. He executed an affidavit, Exhibit "D" subscribed before Alicia
Municipal Judge Flor Egipto on January 5, 1974, admitting that he had sexual intercourse
once with Clara Mina, but denying that he raped her (p. 7, record).
The accused denied that he had forced the complainant to have sexual intercourse with him
and that he only inserted his forefinger inside the complainant's private parts. He testified
that he admitted having sexual intercourse once with complainant in his affidavit[[1]]
because of maltreatment employed upon him by the jail guards.
While the affidavit executed by the accused is not admissible in evidence for lack of
evidence showing that the accused during the custodial investigation was apprised of his
constitutional rights under Art. IV, Sec. 20, of the New Constitution,[[2]] still there is
sufficient evidence on record that the accused had performed the sexual act to wit:
1. The accused testified that he merely inserted his forefinger into the complainant's vagina
to cure her of her mental malady. The records, however show, from the testimony of both
the prosecution and the defense, that the accused laid on top of complainant. If appellant's
purpose was merely to insert his forefinger into the complainant's vagina, then there is no
necessity of lying on top of complainant.
2. Complainant testified, contrary to the testimony of the accused, that the latter brought
out his penis and inserted it into her vagina which pained her a lot.
3. The hymenal lacerations and the fresh perineal abrasions in complainant's vagina
corroborated her testimony that the accused had sexual intercourse with her.
The accused assailed the competence of the complainant as a witness on the ground that
being feeble minded she is not a competent witness in contemplation of the rules and
therefore her testimony should have been rejected by the lower court. That the complainant
was feeble-minded and had displayed difficulty in comprehending the questions propounded
on her is an undisputed fact. However, there is no showing that she could not convey her
Ideas by words or signs. It appears in the records that complainant gave sufficiently
intelligent answers to the questions propounded by the court and the counsels. The court is

satisfied that the complainant can perceive and transmit in her own way her own
perceptions to others. She is a competent witness.
Having sexual intercourse with a feeble-minded woman is rape. The offense is described
under paragraph 2 of Article 335 of the Revised Penal Code, that is, the offender having
carnal knowledge of a woman deprived of reason. The Court, in the case of People vs. Daing,
[[3]] said:
The offense committed by appellant is rape described under paragraph 2 of Article 335 of
the Revised Penal Code, that is, the offender having carnal knowledge of a woman deprived
of reason. The deprivation of reason contemplated by law does not need to be complete.
Mental abnormality or deficiency is enough. So it was held by the Supreme Court of Spain
that a man having carnal knowledge of a woman whose mental faculties are not normally
developed or who is suffering from hemiplegia and mentally backward or who is an Idiot
commits the crime of rape. ...
Being feeble-minded, complainant is incapable of thinking and reasoning like any normal
human being and not being able to think and reason from birth as aforesaid, and
undoubtedly devoid or deficient in those instincts and other mental faculties that
characterize the average and normal mortal, she really has no will that is free and voluntary
of her own; hers is a defective will, which is incapable of freely and voluntarily giving such
consent so necessary and essential in lifting coitus from the place of criminality.[[4]] In this
connection, the Solicitor General properly stated:
That complainant possesses such a low mental capacity, to the extent of being incapable of
giving consent, could be gleaned from the fact, as testified to by her mother, that she is
unable to do the simple tasks of combing her hair and bathing herself. Thus, even granting it
to be true, as counsel has insinuated, that complainant had submitted to the sexual act
without resistance (p. 9 Appellant's Brief) such cannot be construed as consent on her part,
so as to preclude it from being rape. Incapable of giving consent, she could not thus consent
in intelligently.[[5]]
WHEREFORE, the appealed decision is AFFIRMED in toto.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALEJANDRO SALOMON Y OLPANGO @ "ALE", @ "BOYET" and FELICIANO CONGE @
PEPING, accused-appellants.
The Solicitor General for plaintiff-appellee.
Anecio R. Guades for accused-appellants.

CRUZ, J.:
The novel defense in this prosecution for rape is that the physical evidence of the
complainant's violation was caused not by the male organ but by the five fingers of one of
the appellants that were thrust into her vagina in anger and not lust. The defense faults the
trial judge for giving credence to the complainant. It avers that her testimony should not
have been accepted at all because she is admittedly a mental retardate and therefore
unreliable per se.
These curious arguments will not be dismissed out of hand by this Court. The appellants are
entitled to be heard in their defense, no less than the prosecution, although neither party is
necessarily to be believed if its evidence falls short of the strict standards of the law.
The trial court found that on October 11, 1987, while Sylvia Soria, a
20-year old mental retardate, was walking along the Maharlika Highway at Casabahan,
Gandara, Samar, Alejandro Salomon and Feliciano Conge, who were apparently waiting for
her, accosted her and forcibly took her to the
ricefield some ten meters away. There she was raped by Salomon with Conge's assistance.
On her way home, she met her brother Senecio, to whom she related her ordeal. The two of
them reported her rape to their father. That same night, the family walked the threekilometer distance to the police station, where Restituto Soria signed a complaint for the
rape of his daughter by Salomon and Conge. 1 Sylvia was medically examined at the
Gandara General Hospital by Dr. Susan Tanseco, who issued the following certificate: 2
A physical examination has been done on Miss Sylvia Soria, 20 years of age, a resident of
Brgy. Casab-ahan, Gandara, Samar. P.E. showed a single, linear, laceration on the labia
minora at 6:00 o'clock position. There are isolated erythematous areas on both thighs. There
is also the presence of sandy particles on the genital area. Speculum exam, however,
showed negative findings.

Three days later, Salomon and Feliciano could no longer be found. It was only after a fourmonth search that they were arrested in Aguado, Plaser, Masbate, from where, after being
detained there for one month, they were taken back to Samar. 3 Following a protracted
investigation, an information for rape was filed against them on August 9, 1988, with the
Regional Trial Court in Calbayog City. 4
The principal witness for the prosecution was Sylvia Soria herself, who recounted in detail
the manner of her ravishment by Salomon with the help of his co-accused Conge. She
described how she was dragged to the ricefield by the two accused and there undressed
against her will. As Conge spread and pinned her legs, Salomon mounted and penetrated
her, although with difficulty because she was still a virgin. She felt pain in her vagina and
"something slippery." She could not cry out or repel the attack because the two were
stronger than she and Conge was holding a bolo. 5 After her rape, Salomon sucked and
twisted her nipples and demanded that he suck his penis. Her low mentality was
demonstrated in her angry testimony of her refusal: "The devil with him, it is not an
icedrop." 6
The prosecution presented several other witnesses, 7 including Dr. Tanseco, who affirmed
her medical certificate of the complainant's examination. On cross-examination, she
declared that the laceration in Sylvia's vagina could have been caused by penetration of a
blunt instrument such as an average-sized penis. 8
The two accused flatly denied the charge against them. Conge swore that on the night in
question, Sylvia arrived at the highway and loudly demanded a lamp from the people in
Epifanio de Guzman's house. He approached her and said there was no lamp to spare,
whereupon, as he turned his back to leave, she hit him in the neck with a piece of wood,
causing him to stagger. In swift reaction, he caught Sylvia by the waist and pushed her to
the ground and as she lay there exposed (she was not wearing any underwear), he angrily
shoved his five fingers into her vagina. Sylvia cried out at the top of her voice. Fearing that
her relatives might come, he withdrew his hands and immediately left the place. 9
Salomon corroborated his co-accused. He testified that he saw the whole incident, being
then about three-arms length away from the highway. 10 De Guzman agreed, saying that he
was also in the yard of his house at the time, and playing his guitar, when the encounter
occurred. 11
Both Salomon and Conge also protested that they had not gone to Masbate in order to
escape as the trial court held. They pointed out that they were in fact investigated by the
police the day following the alleged incident but no action was taken against them. 12 The
truth, they said, was that they had gone to Masbate to buy two horses on instructions from
Salomon's father, Epifanio, who had given them P3,000.00 for this purpose. 13
Judge Ricardo A. Navidad disbelieved the accused and found them guilty as charged. As
conspirators, they were each sentenced to reclusion perpetua and held solidarily liable to
the complainant for P30,000.00 as civil indemnity, P22,000.00 as moral damages, P5,000.00
as exemplary damages, and P5,000.00 as attorney's fees. They were also ordered to pay the
costs. 14
In the appellants' brief (incorrectly denominated as a Petition for Review), the defense
suggests that the testimony of Sylvia Soria is flawed because she is an insane person who
was confined at the National Mental Hospital a few months before the alleged incident. 15 It
is also argued that her testimony was fabricated at the instance of her father, who had a
bone to pick with Salomon's father. The appellants insist that their own version of the

incident is more plausible and should not have been rejected by the trial court in view of the
constitutional presumption of innocence in their favor.
A mental retardate is not for this reason alone disqualified from being a witness. As in the
case of other witnesses, acceptance of his testimony depends on its nature and credibility
or, otherwise put, the quality of his perceptions and the manner he can make them known to
the court. 16 Thus, in People v. Gerones, 17 the Court accepted the testimony of a rape
victim notwithstanding that she had the mentality of a nine or ten-year old "because she
was able to communicate her ordeal... clearly and consistently." In the case of People vs.
Rondina, this Court declared:
The testimony of the offended party herself was especially telling and credible despite the
fact that she was somewhat mentally deficient, as the trial court noticed. Although she was
really of limited intelligence, the complainant nevertheless did not forget the harrowing
experience she suffered during that frightful night in the bushes when the three men seared
her memory with the lust they forced upon her. The tale she narrated in court was not
woven out of sheer imagination but born in anguish and remembered with pain and as plain
an unembellished as the simple life she led. If she spoke in forthright language at the trial, it
was because she was speaking the truth of that horrible ravishment she could not push out
of her mind.
In the case before us, the trial court noted that although Sylvia's speech was slurred and it
was necessary at times to ask her leading questions, "her testimony was positive, clear,
plain, coherent and credible." Her mental condition did not vitiate her credibility. We also
believe, as we have observed often enough in many cases 18 that a woman will not expose
herself to the humiliation of a rape trail, with its attendant publicity and the morbid curiosity
it will arouse, unless she has been truly wronged and seeks atonement for her abuse.
The defense points to a supposed hostility between Sylvia's and Salomon's respective
fathers due to a conflict over a piece of land and the administrative charge Epifanio filed
against Restituto when they were both teaching at the local school. It suggests that this was
the reason for Sylvia's false charge against Salomon, who has simply been caught in the
crossfire, as it were, between Restituto and Epifanio.
The connection is far-fetched. It is unnatural for a parent to use his offspring as an engine of
malice, especially if it will subject a daughter to embarassment and even stigma, as in this
case. There is no evidence that Sylvia's father is an unnatural parent. Besides, the enmity
itself is in the view of the Court not deep enough to provoke the charge, assuming that
Restituto Soria was willing to use his daughter to falsely accuse his enemy's son.
Significantly, the complaint was filed by Restituto against the son and not the father who
was his real adversary.
The lack of a finding of spermatozoa during Sylvia's medical examination did not
conclusively establish an absence thereof because the examining doctor simply did not have
the necessary equipment to make a more thorough report. 19 In fact, she suggested another
examination at the Calbayog General Hospital. 20 At any rate, we have held that the
absence of spermatozoa in the complainant's vagina does not negate the commission of
rape; there may be a valid explanation for such absence, as when the semen may have
been washed away or when the rapist failed to ejaculate. 21
The appellants decry the trial judge's conclusion that they had gone to Masbate to escape,
but it appears that this was really their intention. In the first place, it is not true that they
were investigated before they left, for the fact is Salomon's father stopped the investigation
on the ground that there was no lawyer to represent them. 22 It is also noted that Salomon
used another name in Masbate and called himself Boyet instead of Ale, his real nickname.

23 Salomon and Conge traveled from place to place in that province but were not able to
buy a single horse during the four months that they were there. Instead, they used the
P3,000.00 Salomon's father had given them not only for their daily needs but also "in
dancing and drinking," as Conge put it. 24 Well indeed has it been said that "wicked flee
when no man pursueth but the innocent are as bold as a lion." The appellants' trip to
Masbate was unmistakably a flight from justice.
And now let us consider the interesting defense of what we may call Sylvia's "manual rape"
for lack of a more descriptive term. Admitting the laceration in Sylvia's vagina, Salomon
nevertheless maintains that it was caused not by his penis but by Conge's fingers. Conge's
purpose was to punish her and to disable her and thus prevent her from hitting him again.
The trouble with this defense is that it is too comical for words. It looks like a bawdy-house
skit featuring a mad avenger and his naughty fingers. Besides, the two accused and De
Guzman have a confused recollection of how this remarkable incident happened, the first
perhaps in the annals of Philippine jurisprudence.
Conge declared in his affidavit that Sylvia hit him only once and then swore on direct
examination that he was hit twice, whereas both Salomon De Guzman swore he was hit only
once. 25 Salomon and Conge said that Sylvia was wearing pants but De Guzman insisted
with equal certainty that it was a skirt. 26 Salomon said Sylvia's pants were pulled down to
her knees, but Conge declared that she was completely disrobed, then said the pants came
down only to her ankles. 27 Conge first said his fingers were spread when they thrust them
inside Sylvia's vagina but, sensing the trial court's disbelief, recanted and said he put his
fingers together in the shape of a cone before plunging them into Sylvia's bared organ. 28
We are satisfied with the findings of the trial court that the appellants, in conspiracy with
each other, committed the crime of rape upon Sylvia Soria, with Salomon actually violating
her as Conge helped restrain her while also frightening her with his bolo. The crime was
committed with force and intimidation, and worse, against a mental retardate, who
fortunately was nevertheless able to narrate the details of her outrage. The theory of the
defense is absurd. The trial court was correct in rejecting it. The assessment of the evidence,
especially the credibility of the witnesses, is the primary function of the judge presiding at
the trial. We defer to the findings of the trial court in the case at bar, there being no showing
that they were reached without basis.
The Court cannot conclude this opinion without remarking on the extraordinary lengths to
which an accused will go to falsify the truth and evade the sanctions of the law. The defense
in this case is illustrative of such desperation. What the appellants have not considered is
that the Court is not without experience in detecting falsehood and should not have been
expected to be deluded by the ridiculous story they blandly submitted. Counsel should
remember that gullibility is not one of the traits of this Court.
WHEREFORE, the appeal is DISMISSED. The decision of the trial court is AFFIRMED, except
for the award of moral, exemplary, and actual damages and attorney's fees, which were
disallowed. The civil indemnity is retained at P30,000.00. Costs against the appellants.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO MENDOZA, accusedappellant.

SYLLABUS
1. REMEDIAL LAW; EVIDENCE; TESTIMONIES; QUALIFICATION OF WITNESSES. - Section 20,
Rule 130 of the Rules of Court provides: Except as provided in the next succeeding section,
all persons who can perceive, and perceiving, can make known their perception to others,
may be witnesses x x x. With respect to the disqualification of children to be witnesses,
Section 2 1(b) of the abovementioned rule reads: The following persons cannot be
witnesses: x x x (b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating them truthfully. It is
thus clear that any child, regardless of age, can be a competent witness if he can perceive,
and perceiving, can make known his perception to others and of relating truthfully facts
respecting which he is examined.

2. ID.; ID.; ID.; ID.; DETERMINATION THEREOF; BEST RESOLVED BY THE TRIAL COURT. - The
requirements then of a childs competency as a witness are the: (a) capacity of observation,
(b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether
a child is of sufficient intelligence according to the foregoing requirements, it is settled that
the trial court is called upon to make such determination. As held in United States vs.
Buncad, (25 Phil. 530, 536 [1913]) quoting from Wheeler vs. United States (159 U.S. 523
[1895]), and reiterated in People vs. Raptus (198 SCRA 425, 433 [1991]) and People vs.
Libungan (220 SCRA 315, 323 [1993]): The decision of this question rests primarily with the
trial judge, who sees the proposed witness, notices his manner, his apparent possession or
lack of intelligence, and may resort to any examination which will tend to disclose his
capacity and intelligence as well as his understanding of the obligations of an oath. As many
of these matters cannot be photographed into the record, the decision of the trial judge will
not be disturbed on review unless from that which is preserved it is clear that it was
erroneous. The trial court has adjudged Paul Michael competent to testify. We agree. A close
and careful examination of the testimony of Paul Michael shows that at the time he testified,
he could be deemed a child of above average intelligence, i.e., capable of giving responsive
ansWers to the questions asked of him by the trial judge, as well as recalling events and
relating them to such recollections. The initial hesitancy of Paul Michael to name his father
as the author of the crime was sufficiently explained by the trial court as follows: The first
time Paul Michael was presented as [a] witness, the only thing substantial he testified on
was that his father boxed his mother in the mouth and tied her. On further questions, he
refused to answer anymore. The Court noticed the reason for such adamant attitude of the
witness. His father, the accused, was directly in his sight and whenever their eyes met, the
child could speak no more. The second time the witness was presented, the private
prosecutor covered the child from the accused. The Court likewise directed the accused to
sit farther away thereby placing the accused out of the direct sight of the witness. As a
result, the child was able to testify freely and extensively without hesitation. We defer to
such observation and explanation. Indeed, there are certain matters that aid the trial court
in assessing the credibility of a witness which are not available to the appellate court, such
as emphasis, gesture, and the inflection of the voice of the witness. The trial court had the
distinct opportunity to make such observations and to avail of such aids while Paul Michael
was on the witness stand, thusly, we find no reason to disregard the assessment made by
the trial court.
3. CRIMINAL LAW; ALTERNATIVE CIRCUMSTANCES; INTOXICATION; MITIGATING, ABSENT
SUFFICIENT PROOF THAT IT WAS HABITUAL NOR SUBSEQUENT TO THE PLAN TO COMMIT THE
FELONY; CASE AT BAR. - The trial court correctly appreciated in favor of the accusedappellant the mitigating circumstance of intoxication. The accused-appellant committed the
felony in question in a state of intoxication and there was no sufficient proof that it was
habitual nor subsequent to the plan to commit the felony.
APPEARANCES OF COUNSEL
The Solicitor General for plaintiff-appellee.
Miguel P. Pineda for accused-appellant.
DECISION
DAVIDE, JR., J.:
Maria Gina Avila Mendoza, a mother of three young children, was put to fire in her home in
Balasing, Sta. Maria, Bulacan, on 22 November 1989. She suffered extensive second to
fourth degree burns and died of hypostatic pneumonia and infected fourth degree burns on
30 November 1989. Her husband, accused-appellant Rolando Mendoza, was charged with
the crime of parricide in an information filed on 29 June 1990 with Branch 8 of the Regional
Trial Court (RTC) of Malolos, Bulacan. The accusatory portion thereof read:

That on or about the 22nd day of November, 1989, in the municipality of Sta. Maria,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said
accused Rolando Mendoza, armed with a kerosene gas [sic] and with intent to kill his wife
Maria Gina Mendoza, with whom he was united in lawful wedlock, did then and there wilfully,
unlawfully and feloniously attack, assault and burn with the kerosene gas he was then
provided, the said Maria Gina Mendoza which directly caused her death.
Contrary to law.1
Trial on the merits was had after accused-appellant entered a plea of not guilty at his
arraignment.2
The prosecution presented as its witnesses Paul Michael Mendoza, a five-year old child of the
victim and the accused-appellant; Jhun Avila, Teofisto Avila, and Rodora Avila, the victims
brother, father, and sister, respectively; and Dr. Nieto M. Salvador, the Medico-Legal Officer
of the National Bureau of Investigation (NBI). On its part, the defense presented the
accused-appellant himself and Erlinda Porciuncula, a childhood friend.
The testimonies of the witnesses for the prosecution established the following facts:
The accused-appellant and the victim were married on 30 January 1985 at the Sto. Cristo
Parish Church in Bocaue, Bulacan and lived in Balasing, Sta. Maria, Bulacan.3 Their union
bore three children: Paul Michael, the eldest, who was born on 7 June 1985,4 John-John, and
Paula, the youngest.5
In the evening of 22 November 1989, the accused-appellant and his wife were in their
residence with their children. At around 4:00 a.m. the next morning, relatives of the
accused-appellant went to the house of Jhun Avila (the victims brother) in Wawa, Balagtas,
Bulacan, and informed him that his sister Gina got burned. Two hours later, Jhun and his
father Teofisto Avila went to the house of Gina and her husband, only to discover that the
latter were not there. They found the things inside the house in disarray; saw a Coke bottle
which smelled of kerosene, hair strands and burned human flesh in the comfort room; and
the burned clothes of Gina outside the house. They also noticed that the branches and
leaves of the atienza tree in front of the house were likewise somewhat burned. They
proceeded to a neighbors house where Paul Michael, John-John, and Paula were temporarily
sheltered. Paul Michael was sitting in a corner and somewhat tulala, while Paula was
sleeping. Jhun then brought the children to his house.6
As Erlinda Porciuncula informed the Avila family that Gina had been brought to the Manila
Sanitarium Hospital in Pasay City, Teofisto, Jhun, and Rodora proceeded there.7 According to
Jhun, however, they were not able to talk to Gina that day as she was inside the operating
room. It was only after two days that Jhun was able to see Gina, who lay naked with all the
hospital gadget[s] in the mouth and at the head and she was completely bald and her body
was burned.8 Jhun likewise testified that Gina was unable to talk to her sister Rodora nor her
father Teofisto.9
Gina died on 30 November 1989. Dr. Noel Minay, Medico-Legal Officer of the NBI,, conducted
the autopsy and determined the cause of death to be hypostatic pneumonia; infected 4th
degree burns;10 and in his Autopsy Report,11 he entered the following post-mortem
findings:
Burns, extensive, second to fourth degree, with skin grafts, excepting the back of the neck
and head, pelvic area, buttocks, whole of the back, posterior aspect of the right leg, and
lower anterior third of the leg and foot, left side.

Lungs, with foci of consoliditions at the bases; transections shows (sic) yellowish mucoid
material in the lower part of the tracheo-bronchial tree.
Brain and other visceral organs, marked congestion.
Stomach contains small amount of yellowish fluid material.
This report also indicated that the cause of death was HYPOSTATIC PNEUMONIA; INFECTED
FOURTH DEGREE BURNS.
Dr. Nieto M. Salvador testified on the certification and autopsy report, in view of Dr. Minays
resignation from the NBI sometime after he examined the cadaver of the victim.12
In the evening of 30 November 1989, Jhun told Paul Michael that his mother Gina had died.
Paul Michael then narrated to him what actually happened to his mother that fateful
evening. Because of these revelations and the findings of the doctor, Jhun reported the
matter to the police authorities in Sta. Maria, Bulacan.13
Jhun Avila had gone five times to the residence of Gina and the accused-appellant from 23
November 1989 to 30 November 1989, yet he did not see the accused-appellant; in fact, the
latter never showed up during the wake nor burial of Gina. It was only when the accusedappellant was arrested in the house of a woman in Longos, Balagtas, Bulacan,14 that Jhun
saw him for the first time after the incident.
The medical expenses incurred for the hospitalization of Gina amounted to P88,750.00, of
which, her parents were able to pay only P18,000.00. For the balance, Teofisto had to sign a
promissory note to be paid on installments.15
As to how Gina was burned, only five-year old Paul Michael could testify thereon.
In his testimony during the presentation of the evidence in chief on 18 February 1991, Paul
Michael declared that one evening inside their house, his father boxed his mother on her
mouth and then tied her up. However, the witness did not answer succeeding questions
which sought to elicit what happened thereafter, although he kept on looking at his father
throughout this period. He later revealed that he saw matches and kerosene in their house.
He likewise declared that his mother was now in heaven because she was dead.16 During
his rebuttal testimony on 12 October 1992, Paul Michael categorically declared that it was
his father who burned his mother. The accused-appellant, who was drunk at that time, first
tied the victims hands behind her back, then poured kerosene on the front of her body and
set her aflame. Paul Michael further declared that his father tied-up his mother because they
quarreled when his mother wanted him (Paul Michael) to go with the accused-appellant to
the street corner, but his father refused. Finally, many times before, his parents quarreled
because his father was always drunk.17 Pertinent portions of Paul Michaels testimony on
rebuttal are as follows:
Q When your father Rolando Mendoza testified on direct examination, he stated that when
he returned to your house in Balasing, Sta. Maria, Bulacan on November 22, 1989, he saw
your mother was jumping up and down while her dress was already burning. What can you
say about that?
A It is not true, Sir.
Q Why do you say that it is not true?
A Because it was he who burned my mother, Sir.

COURT:
How did he burn your mother?
A At first he tied up my mother, then he poured kerosine [sic] upon my mother, Sir.
Q What was tied, the hands or the feet of your mother? A The hands, Your Honor.
Q How was it tied?
A At the back, Your Honor.
Q Do you know the reason why she was tied up?
A Yes Your Honor. They were quarreling because my mother wanted me to go with my father
to [sic] street corner.
Q Then what happened next?
A Because of that they quarreled already.
Q What you mean is that your mother was objecting you to go [sic] with your father?
A My mother wanted me to go with my father but my father refused me [sic] to go with him,
Your Hon or.
Q What would you do at the street corner with your father?
A She just wanted me to accompany my father.
Q And because of that quarrel, your father tied the hands of your mother?
A Yes, Your Honor.
Q Then he put kerosine [sic] at the front body [sic] of your mother?
A Yes, Your Honor.
Q And after putting kerosine [sic], what did he do next?
A He lighted it, Your Honor.
Q Was that the first time that you[r] mother and your father quarreled?
A Many times, Your Honor.
Q What was the cause of their quarrel?
A Because my father was always drunk, Your Honor.
Q At the time when your mother was tied and then kerosine [sic] was poured upon her dress,
was your father drunk?

A Yes, Your Honor.

Q Your father always went out and when he returned he was always drunk?
A Yes, Your Honor.18
The defense, of course, had a different story to tell.
Erlinda Porciuncula, who grew up with the accused-appellant and was like a sister to him,
testified that at around 8:30 p.m. of 22 November 1989, Rolando Mendoza came to her
house asking for help because his wife burned herself. Together with the accused-appellant,
she borrowed the owner-type jeep of her neighbor so they could bring his wife to the
hospital. They proceeded to St. Marys Hospital, but the attending physician advised them to
bring the victim to the Philippine General Hospital (PGH). At the hospital, the staff could not
admit the victim due to the unavailability of rooms. On the way to the PGH, the victim, who
was lying in the front seat of the jeep, told Porciuncula that she was fed up with her life and
was entrusting her children to her. They then went to the Manila Sanitarium Hospital where
the victim was immediately given first aid and transferred to the isolated Room No. 328. The
accused-appellant requested the witness to buy medicine and inform the relatives of the
victim of what had happened, which she acceded to. She was able to visit the victim three
more times before the victim died on 30 November 1989, and on two of these occasions, she
saw the accused-appellant at the hospital.19
Accused-appellant Rolando Mendoza testified that on 22 November 1989, between 5:00 to
6:00 p.m., three persons who wanted to befriend him visited him in his house. These three
persons, of whom the accused-appellant could only name one, brought a bottle of liquor and
had a drinking session with him, which lasted about an hour or two. As these three persons
were leaving, the accused-appellant offered to accompany them to the road. After doing so,
he returned home, whereupon he saw his wife jumping up and down and removing her
burning clothes. He saw a pail of water which he then used to douse out the flames. At this
time, his wife cursed him and said: Putang-ina mo, sawang-sawa na ako sa buhay na ito, and
Huwag mo akong pakialaman.20 The accused-appellant did not mind her, merely proceeded
to remove her dress and cried for help. The neighbors came over and he entrusted the
children to them. Several others arrived and he asked one of them who owned a vehicle to
help him bring his wife to the hospital. They were able to bring her to St. Marys Hospital, but
since the hospital did not have a burns specialist, they were advised to bring the victim to a
hospital in Manila. The driver of the jeep, however, refused to bring them to Manila as he
had neither a drivers license nor gas. The accused-appellant was instead brought to Bocaue,
Bulacan, and there he was able to procure another vehicle and borrow some money.
Eventually, his wife was brought to the Manila Sanitarium Hospital after the PGH refused to
admit the victim. He stayed with his wife from the time she was admitted up to the time she
died, and even bought the needed medicines. He did not attend her wake nor burial because
of the threats his brother-in-law made. When asked if he knew why his wife burned herself,
he surmised that she was aburido21 from all their financial difficulties.22
In giving full credence to the testimony of eyewitness Paul Michael,23 the trial court
observed that:
As provided by Section 20, Rule 130 of the Rules of Court, a person who can perceive, and
perceiving, can make known his perception to others, may be a witness. A four-year old boy
can already speak clearly, can understand things happening around him, and ready to study,
to read and to write. For families who can afford, a four-year old child is already sent to the
nursery to begin his/her studies. An intelligent boy is undoubtedly the best observer to be
found. He is little influenced by the suggestion of others and describes objects and

occurrences as he has really seen them (Pp. vs. Bustos, 45 Phil. 9). Paul Michael was five
months over four years when the incident happened. He could perceive things happening
around him. This was the reason why when his grandfather and an uncle found him in the
house of a neighbor, he was in a state of shock, or at least dumbfounded (tulala). Because
he knew the implication of what had happened to his mother. He knew that the burning of
his mother might cause her death. If, indeed, he could not yet perceive things, such
happening would pass unnoticed and without impact on him. Unless a childs testimony is
punctured with serious inconsistencies as to lead one to believe that he was coached, if he
can perceive and make known his perception, he is considered a competent witness (Pp. vs.
Cidro, et al., 56 O.G. 3547).
The first time Paul Michael was presented as [a] witness, the only thing substantial he
testified on was that his father boxed his mother in the mouth and tied her. On further
questions, he refused to answer anymore. The Court noticed the reason for such adamant
attitude of the witness. His father, the accused, was directly in his sight and whenever their
eyes met, the child could speak no more. The second time the witness was presented, the
private prosecutor covered the child from the accused. The Court likewise directed the
accused to sit farther away thereby placing the accused out of the direct sight of the
witness. As a result, the child was able to testify freely and extensively without hesitation.24
The trial court rejected the version of the accused-appellant, stating that:
Accused Rolando Mendoza made the defense that his wife Maria Gina Avila-Mendoza burned
herself. He, however, lost courage when Gina died. After Ginas death, he left the hospital
and never returned. He failed to visit her during the wake and even during the burial. He was
forced to come out only when arrested in a house of a woman in Longos, Balagtas, Bulacan.
Against such behaviour of his may be applied an interpretation of flight in criminal law - that
flight of the accused is an evidence of guilt and a guilty conscience (U.S. vs. Alegado, 25
Phil. 310). Accused gave as a reason for his failure to attend the wake and burial of his wife
the threat of his brother-in-law to kill him if anything would happen to Gina. It is said that the
wicked flee even when no man pursueth, whereas the righteous are as brave as a lion (U.S.
vs. Sarikala, 37 Phil. 486). If, indeed, accused was not guilty and nothing bothered his
conscience, he would be brave as a lion to meet his brother-in-law and face any and all
consequences. In the same way that if his conscience is clear, no threat, real or imaginary,
in the whole world would prevent him from staying by the side of his wife during her last
moments on earth. The fact that he Went into hiding, ashamed or fearful of the death of his
wife is an indication of his guilt. Further, the burning in the dress and body of Gina gives
support to the claim of the prosecution that she was burned. Paul Michael testified that the
hands of his mother were tied at the back. Jhun Avila testified that the branches and leaves
of the atienza tree were burned. They tend to show that Gina was tied at the back, placed
near the trunk of a tree and burned. Being tied, only the front portion of her body would
naturally be burned. The tendency of one who burns himself is to burn his whole body and
not stay stationary in one position so that both his front and back portions of his body would
be burned. In this case, however, only the front portion of Ginas dress and body were burned
as well as the branches and leaves of the atienza tree. That indicates that while the victim
was burning, she remained stationary in the place where she was tied.25
Accordingly, the trial court convicted the accused-appellant as follows:
WHEREFORE, the Court finds the accused Rolando Mendoza guilty beyond reasonable doubt
of the crime of Parricide, defined and penalized under Article 246 of the Revised Penal Code
and hereby sentences him to a penalty of reclusion perpetua, and to indemnify the parents
of the victim Maria Gina Avila-Mendoza the sum of P88,000.00 representing the amount of
hospital bills of the victim. No cost.

SO ORDERED.

PEOPLE V MENDOZA
In this appeal, the accused-appellant prays for a reversal of the lower courts decision,
maintaining that if his evidence is considered in its entirety, it would show his innocence.
The accused-appellant underscores the fact that:
[A]fter November 22, 1989, the date of the incident, the child Paul Michael Mendoza had
been and remains under the custody and care of the parents and brothers and sisters of the
late Maria Gina Mendoza, who in full and unwavering anger, hatred, hostility, resentment,
revenge and spite against the accused, pursued the charge against the accused and the
ones who brought the child to the court to testify.27
He thus asks this Court to disregard the testimony of Paul Michael for being open to serious
question and consideration as it was often attended [by] unintelligible answers and
punctuated by contrary answers to previously given answers; [b]esides the childs tender
age, he suffer[s] from [a] lack or inadequacy of sense of duty to tell the truth. He further
claims that per the findings of the Medico-Legal Officer, the victim did not die of burns but of
hypostatic pneumonia.28
After a thorough examination of the records and scrutiny of the evidence, we find no merit in
this appeal. The accused-appellants seven-page Brief miserably fails to present convincing
grounds why the challenged decision should be overturned.
The lower court convicted the accused-appellant primarily on the basis of the testimony of
eyewitness Paul Michael Mendoza, and it is obvious that the pith of the present appeal is the
childs competency to testify and the credibility of his testimony.
Section 20, Rule 130 of the Rules of Court provides:
Except as provided in the next succeeding section, all persons who can perceive, and
perceiving, can make known their perception to others, may be witnesses. xxx

With respect to the disqualification of children to be witnesses, Section 21(b) of the

abovementioned rule reads:
The following persons cannot be witnesses:
xxx xxx xxx
(b) Children whose mental maturity is such as to render them incapable of perceiving the
facts respecting which they are examined and of relating them truthfully.
It is thus clear that any child, regardless of age, can be a competent witness if he can
perceive, and perceiving, can make known his perception to others and of relating truthfully
facts respecting which he is examined. In the 1913 decision in United States vs. Buncad,29
this Court stated:
Professor Wigmore, after referring to the common-law precedents upon this point, says: But
this much may be taken as settled, that no rule defines any particular age as conclusive of
incapacity; in each instance the capacity of the particular child is to be investigated.
(Wigmore on Evidence, vol. I, p. 638)30
While on the same subject, Underhill declares:
257. Children on the witness stand. - Under the common law, competency of a child under
the age of fourteen years to testify must be shown to the satisfaction of the court. He is
presumptively incompetent, but if he is shown to be competent it is immaterial how young
he may be when he testifies. He is competent if he possesses mental capacity and memory
sufficient to enable him to give a reasonable and intelligible account of the transaction he
has seen, if he understands and has a just appreciation of the difference between right and
wrong, and comprehends the character, meaning and obligation of an oath. If the witness
fulfills these requirements, it is immaterial as bearing upon his competency that he is unable
to define the oath or to define testimony. In the wise discretion of the court, a child four, five,
six and for such ages as seven, eight, nine, ten, eleven, twelve, thirteen or fifteen years of
age may be shown competent to testify. It may not be said that there is any particular age at
which as a matter of law all children are competent or incompetent. x x x31
The requirements then of a childs competency as a witness are the: (a) capacity of
observation, (b) capacity of recollection, and (c) capacity of communication.32 And in
ascertaining whether a child is of sufficient intelligence according to the foregoing
requirements, it is settled that the trial court is called upon to make such determination.33
As held in United States vs. Buncad,34 quoting from Wheeler vs. United States,35 and
reiterated in People vs. Raptus36 and People vs. Libungan:37
The decision of this question rests primarily with the trial judge, who sees the proposed
witness, notices his manner, his apparent possession or lack of intelligence, and may resort
to any examination which will tend to disclose his capacity and intelligence as well as his
understanding of the obligations of an oath. As many of these matters cannot be
photographed into the record, the decision of the trial judge will not be disturbed on review
unless from that which is preserved it is clear that it was erroneous.38
The trial court has adjudged Paul Michael competent to testify. We agree. A close and careful
examination of the testimony of Paul Michael shows that at the time he testified, he could be
deemed a child of above average intelligence, i.e., capable of giving responsive answers to
the questions asked of him by the trial judge, as well as recalling events and relating them

to such recollections. The initial hesitancy of Paul Michael to name his father as the author of
the crime was sufficiently explained by the trial court as follows:
The first time Paul Michael was presented as [a] witness, the only thing substantial he
testified on was that his father boxed his mother in the mouth and tied her. On further
questions, he refused to answer anymore. The Court noticed the reason for such adamant
attitude of the witness. His father, the accused, was directly in his sight and whenever their
eyes met, the child could speak no more. The second time the witness was presented, the
private prosecutor covered the child from the accused. The Court likewise directed the
accused to sit farther away thereby placing the accused out of the direct sight of the
witness. As a result, the child was able to testify freely and extensively without hesitation.39
We defer to such observation and explanation. Indeed, there are certain matters that aid the
trial court in assessing the credibility of a witness which are not available to the appellate
court, such as emphasis, gesture, and the inflection of the voice of the witness. The trial
court had the distinct opportunity to make such observations and to avail of such aids while
Paul Michael was on the witness stand,40 thusly, we find no reason to disregard the
assessment made by the trial court.
The accused-appellants contention that Paul Michaels testimony could have been influenced
by the relatives of Gina, who were full of unwavering anger, hatred, hostility, resentment,
revenge, more so since the child had been in their custody since after 22 November 1989, is
unacceptable. The charge is nothing but unmitigated speculation as not a shred of evidence
was offered in support thereof. Not even the rigorous cross-examination Paul Michael
underwent dented the probative force of his testimony; on the contrary, it merely added
strength thereto as it elicited nothing less than the boys adherence to truth.
We realize how extremely painful it was for Paul Michael to reveal that it was his father who
burned his mother. He knew that such a revelation could send his father to jail and thus
brand him a son of a killer or a convict. If he did, nevertheless, it was to expose the truth
and give justice to his mother who met an excruciatingly painful death. Verily, from the
mouths of children we get the truth.41
Neither are we persuaded by the accused-appellants claim that the cause of death of his
wife was hypostatic pneumonia and not due to the burns she sustained. Such a claim
borders on misrepresentation, for as earlier shown, both the Autopsy Report (Exhibit H-1)
and the Certificate of Post-Mortem Examination (Exhibit H) indicated the cause of death to
be hypostatic pneumonia; infected fourth degree burns. Moreover, as testified to by Dr.
Nieto Salvador, the proximate cause of the hypostatic pneumonia was Ginas recumbent
position due to the fourth degree burns she suffered. Thus:
COURT:
What could have caused hypostatic pneumonia?
A The victim was recumbent because of her intensive infections in front of her body and
therefore she was always lying down which could have caused the hypostatic pneumonia.
Q What you mean [is] it [was] because of the fourth degree burns the victim sustained in
front thats why she was always lying down and unable to change her position?
A Yes, Your Honor.
Q Do you mean that hypostatic pneumonia can be acquire[d] by merely always lying down?

A Yes, Your Honor.

Q Is that the only cause?
A Thats why it is called hypostatic because hypostatic means that the assumed position of
the patient is recumbent and the recumbent position of the patient would greatly affect the
fluids in the lungs as it cant flow down.
xxx xxx xxx
Q Would you say that hypostatic pneumonia may also be caused by fourth degree burns?
A Yes, Sir.42
It goes without saying that an accused is liable for all the consequences of his felonious
act.43
Finally, the accused-appellant was never seen after the death of his wife - neither during her
wake nor at her burial. His whereabouts were unknown. He did not even bother to visit his
children or inform them where to find him in case they needed him, knowing all too well that
he was the only parent left to them. In short, he was even afraid to see his children; he could
not trust them. In a manner of speaking, he was afraid of his own shadow. All his
protestations of innocence are thus belied by his flight as indicative of guilt on his part, or of
his guilty mind. It has been said that the wicked man flees though no man pursueth, but the
righteous are as bold as a lion.44 The explanation proffered for his flight is lame and feeble,
moreover, he offered no credible proof that indeed the family of his wife had threatened him
bodily harm.
The trial court correctly appreciated in favor of the accused-appellant the mitigating
circumstance of intoxication. The accused-appellant committed the felony in question in a
state of intoxication and there was no sufficient proof that it was habitual nor subsequent to
the plan to commit the felony.45 It failed, however, to award civil indemnity to the children
of the victim. Conformably with current case law, they should be awarded the sum of
P50.000.00.
WHEREFORE, the instant appeal is hereby DISMISSED. Being in accordance with the facts
and the law, the challenged decision of Branch 8 of the Regional Trial Court of Bulacan in
Criminal Case No. 1414-M-90 is AFFIRMED, subject to the above modification on the
additional award of P5 0,000.00, as civil indemnity, to the heirs of the victim, Gina Avila
Mendoza.
Costs against the accused-appellant.
AVELINO ORDOO, petitioner,
vs.
HON. ANGEL DAQUIGAN, presiding Judge of the Court of First Instance of La
Union, Branch I and CONRADO V. POSADAS, First Assistant Provincial Fiscal of La
Union and the PEOPLE OF THE PHILIPPINES, respondents.
Pedro G. Peralta for petitioner.
Conrado V. Posadas for and in behalf of other respondents.

AQUINO, J.:
Avelino Ordoo was charged in the municipal court of San Gabriel, La Union with having
raped his daughter, Leonora, on October 11, 1970. The verified complaint dated November
7, 1973 was signed by the twenty four year old victim (Criminal Case No. 104).
In support of that complaint, Catalina Balanon Ordoo, the mother of Leonora, executed a
sworn statement wherein she disclosed that on that same date, October 11th, Leonora had
apprised her of the outrage but no denunciation was filed because Avelino Ordoo
threatened to kill Leonora and Catalina (his daughter and wife, respectively) if they reported
the crime to the police.
Catalina Ordoo in her sworn statement further revealed that her husband had also raped
their other daughter, Rosa, on March 25 and April 7, 1973. He was charged in court with that
offense.
Catalina Ordoo said that the rape committed by Avelino Ordoo against Leonora was
mentioned during the investigation and trial of Avelino Ordoo for the rape committed
against Rosa Ordoo. Catalina's statement on this point is as follows:
Q Why did you not file the complaint against your husband concerning the incident
involving Leonora Ordoo?
A We Also narrated the incident during the investigation in the Fiscal's Office and also
when I testified in court in the case of my daughter Rosa Ordoo but then my daughter
Leonora Ordoo was still in Manila, sir.
During the preliminary investigation of the rape committed against Leonora, Catalina
manifested that she was no longer afraid to denounce Avelino Ordoo because he was
already in jail for having raped Rosa Ordoo.
The case against Avelino Ordoo, where Leonora Ordoo was the complainant, was elevated
to the Court of First Instance of La Union, San Fernando, Branch (Criminal Case No. 356). On
May 29, 1974 the Fiscal presented Catalina Ordoo as the second prosecution witness. After
she had stated her personal circumstances, the defense counsel objected to her
competency. He invoked the marital disqualification rule found in Rule 130 of the Rules of
Court which provides:
Sec. 20.
Disqualification by reason of interest or relationship. The following persons
cannot testify as to matters in which they are interested, directly or indirectly, as herein
enumerated:
xxx

xxx

xxx

(b)
A husband cannot be examined for or against his wife without her consent; nor a wife
for or against her husband without his consent, except in a civil case by one against the
other or in a criminal case for a crime committed by one against the other;
xxx

xxx

xxx

Counsel claimed that Avelino Ordoo had not consented expressly or impliedly to his wife's
testifying against him.

The trial court overruled the objection. After the denial of Avelino Ordoo's motion for the
reconsideration of the adverse ruling, he filed the instant action for certiorari and
prohibition. He was allowed to sue in forma pauperis.
The issue is whether the rape committed by the husband against his daughter is a crime
committed by him against his wife within the meaning of the exception found in the marital
disqualification rule.
Should the phrase "in a criminal case for a crime committed by one against the other" be
restricted to crimes committed by one spouse against the other, such as physical injuries,
bigamy, adultery or concubinage, or should it be given a latitudinarian interpretation as
referring to any offense causing marital discord?
There is a dictum that "where the marital and domestic relations are so strained that there is
no more harmony to be preserved nor peace and tranquility which may be disturbed, the
reason based upon such harmony and tranquility fails. In such a case identity of interests
disappears and the consequent danger of perjury based on that identity is non-existent.
Likewise, in such a situation, the security and confidences of private life which the law aims
at protecting will be nothing but ideals which, through their absence, merely leave a void in
the unhappy home" (People vs. Francisco, 78 Phil. 694, 704).
In the Francisco case, the wife, as a rebuttal witness, was allowed to testify against the
husband who was charged with having killed his son and who testified that it was the wife
who killed their son.
We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in
Cargill vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:
The rule that the injury must amount to a physical wrong upon the person is too narrow; and
the rule that any offense remotely or indirectly affecting domestic harmony comes within the
exception is too broad. The better rule is that, when an offense directly attack or directly and
vitally impairs, the conjugal relation, it comes within the exception to the statute that one
shall not be a witness against the other except in a criminal prosecution for a crime
committed (by) one against the other.
Using the criterion thus judiciously enunciated in the Cargill case, it can be concluded that in
the law of evidence the rape perpetrated by the father against his daughter is a crime
committed by him against his wife (the victim's mother). *
That conclusion is in harmony with the practices and traditions of the Filipino family where,
normally, the daughter is close to the mother who, having breast-fed and reared her
offspring, is always ready to render her counsel and assistance in time of need. Indeed,
when the daughter is in distress or suffers moral or physical pain, she usually utters the
word Inay (Mother) before she invokes the name of the Lord.
Thus, in this case, when Avelino Ordoo, after having raped his daughter Leonora in the
early morning of October 11, 1970, tried to repeat the beastly act in the evening of that
date, Leonora shouted "Mother" and, on hearing that word, Avelino desisted.
That the rape of the daughter by the father, an undeniably abominable and revolting crime
with incestuous implications, positively undermines the connubial relationship, is a
proposition too obvious to require much elucidation.
In Wilkinson vs. People, 282 Pac. 257, it was held that the wife was a competent witness
against the husband in a prosecution for rape committed by the husband against his

stepdaughter, who is the wife's natural daughter because the crime was "an outrage upon
nature in its dearest and tenderest relations as well as a crime against humanity itself". The
court adopted the interpretation that "a criminal action or proceeding for a crime committed
by one against the other" may refer to a crime where the wife is the individual particularly
and directly injured or affected by the crime for which the husband is being prosecuted (See
Dill vs. People, 19 Colo. 469, 475, 36 Pac. 229, 232).
In State vs. Chambers, 87 Iowa 1, 53 N.W. 1090, it was held under the statutory provision
that husband or wife shall in no case be a witness for or against the other, except in a
criminal proceeding for a crime committed by one against the other, that the wife was
competent to testify against the husband in a case where he was prosecuted for incest
committed against his stepdaughter.
In State vs. Shultz, 177 Iowa 321, 158 N.W. 539, it was held that the wife may testify against
the husband in a case where he was prosecuted for incest committed against their elevenyear old daughter because incest is a "crime committed against the wife". (See Owens vs.
State, 32 Neb. 167, 49 N.W. 226; Lord vs. State, 23 N.W. 507, 17 Neb. 526; People vs.
Segura, 60 Phil. 933).
The trial court did not err in holding that Catalina Ordoo could testify against her husband,
Avelino Ordoo, in the case where he is being tried for having raped their daughter, Leonora.
WHEREFORE, the petition for certiorari and prohibition is dismissed. No costs.

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. MARIANO C. CASTAEDA, JR., as Judge of the Court of First Instance of
Pampanga, Branch III, and BENJAMIN F. MANALOTO, respondents.
Fiscal Regidor Y Aglipay and Special Counsel Vicente Macalino for petitioner.
Moises Sevilla Ocampo for private petitioner.
Cicero J. Punzalan for respondent.

SANTOS, J.:
On the basis of the complaint 1 of his wife, Victoria M. Manaloto, herein private respondent
Benjamin Manaloto was charged before the Court of First Instance of Pampanga, presided by
respondent Judge, Hon. Mariano C. Castaneda Jr., with the crime of Falsification of Public
Document committed, according to the Information, as follows:
That on or about the 19th day of May, 1975, in the Municipality of San Fernando, province of
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named
a BENJAMIN F. MANALOTO, with deliberate intent to commit falsification, did then and there
willfully, unlawfully and feloniously counterfeit, imitate and forge the signature of his spouse
Victoria M. Manaloto in a deed of sale executed by said accused wherein he sold a house and
lot belonging to the conjugal partnership of said spouse in favor of Ponciano Lacsamana
under Doc. No. 1957, Page No. 72, Book No. LVII, Series of 1975, notarized by Notary Public
Abraham Pa. Gorospe, thereby making it appear that his spouse Victoria M. Manaloto gave
her marital consent to said sale when in fact and in truth she did not. 2
At the trial, the prosecution called the complaint-wife to the witness stand but the defense
moved to disqualify her as a witness, invoking Sec. 20, Rule 130 of the Revised Rules Of
Court which provides:
SEC. 20.
Disqualification by reason of interest or relationship The following persons
cannot testify as to matters in which they are interested, directly or indirectly as herein
enumerated.
xxx

xxx

xxx

(b)
A husband can not be examined for or at his wife without her consent; nor a wife for
or against her husband without his consent, except in a civil case by one against the other or
in a criminal case for a crime committed by one against the other.
The prosecution opposed said motion to disquality on the ground that the case falls under
the exception to the rule, contending that it is a "criminal case for a crime committed by one
against the other." Notwithstanding such opposition, respondent Judge granted the motion,
disqualifying Victoria Manaloto from testifying for or against her husband, in an order dated
March 31, 1977. A motion for reconsideration petition was filed but was denied by
respondent Judge in an order dated May 19, 1977.

Hence, this petition for certiorari file by the office of the Provincial Fiscal, on behalf of the
People of the Philippines, seeking set aside the aforesaid order of the respondent Judge and
praying that a preliminary injunction or a ternporary restraining order be issued by this Court
enjoining said judge from further proceeding with the trial of aforesaid Criminal Case No.
1011.
On June 20, 1977, this Court resolved (a) to issue a temporary restraining order, and (b) to
require the Solicitor General to appear as counsel for the petitioner. 3 The Office of the
Solicitor General filed its Notice of Appearance on June 27, 1977, 4 and its Memorandum in
support of the Petition on August 30, 1977. 5 The respondents filed their Memorandum on
September 5, 1977. 6 Whereupon, the case was considered submitted for decision. 7
From the foregoing factual and procedural antecedents emerges the sole issues
determinative of the instant petition, to wit: Whether or not the criminal case for Falsification
of Public Document filed against herein private respondent Benjamin F. Manaloto who
allegedly forged the signature of his wife, Victoria M. Manaloto, in a deed of sale, thereby
making it appear that the latter gave her marital consent to the sale of a house and lot
belonging to their conjugal partnership when in fact and in truth she did not may be
considered as a criminal case for a crime committed by a husband against his wife and,
therefore, an exception to the rule on marital disqualification.
We sustain petitioner's stand that the case is an exception to the marital disqualification
rule, as a criminal case for a crime committed by the accused-husband against the witnesswife.
1.
The act complained of as constituting the crime of Falsification of Public Document is
the forgery by the accused of his wife's signature in a deed of sale, thereby making it appear
therein that said wife consented to the sale of a house and lot belonging to their conjugal
partnership when in fact and in truth she did not. It must be noted that had the sale of the
said house and lot, and the signing of the wife's name by her husband in the deed of sale,
been made with the consent of the wife, no crime could have been charged against said
husband Clearly, therefore, it is the husband's breach of his wife's confidence which gave
rise to the offense charged. And it is this same breach of trust which prompted the wife to
make the necessary complaint with the Office of the Provincial Fiscal which, accordingly,
filed the aforesaid criminal case with the Court of First Instance of Pampanga. To rule,
therefore, that such criminal case is not one for a crime committed by one spouse against
the other is to advance a conclusion which completely disregards the factual antecedents of
the instant case.
2.
This is not the first time that the issue of whether a specific offense may be classified
as a crime committed by one spouse against the other is presented to this Court for
resolution. Thus, in the case of Ordoo v. Daquigan, 8 this Court, through Mr. Justice Ramon
C. Aquino, set up the criterion to be followed in resolving the issue, stating that:
We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in
Cargill v. State, 35 ALR, 133, 220, Pac 64,26 OkL 314, wherein the court said:
The rule that the injury must amount to a physical wrong upon the is too narrow; and the
rule that any offense remotely or indirectly affecting domestic within the exception is too
broad. The better rule is that, WHEN AN OFFENSE DIRECTLY ATTACKS, OR DIRECTLY AND
VITALLY IMPAIRS, THE CONJUGAL RELATION, IT COMES WITHIN THE EXCEPTION to the statute
that one shall not be a witness against the other except in a criminal prosecution for a crime
committed (by) one against the other.

Applying the foregoing criterion in said case of Ordoo v. Daquigan this Court held that the
rape committed by the husband of the witness-wife against their daughter was a crime
committed by the husband against his wife. Although the victim of the crime committed by
the accused in that can was not his wife but their daughter, this Court, nevertheless, applied
the exception for the reason that said criminal act "Positively undermine(d) the connubial
relationship. 9
With more reason must the exception apply to the instant case where the victim of the crime
and the person who stands to be directly prejudiced by the falsification is not a third person
but the wife herself. And it is undeniable that the act comp of had the effect of directly and
vitally impairing the conjugal relation. This is apparent not only in the act Of the wife in
personally lodging her complaint with the Office of the Provincial Fiscal, but also in her
insistent efforts 10 in connection with the instant petition, which seeks to set aside the order
disqualified her from testifying against her husband. Taken collectively, the actuations of the
witness-wife underacore the fact that the martial and domestic relations between her and
the accused-husband have become so strained that there is no more harmony to be
preserved said nor peace and tranquility which may be disturbed. In such a case, as We
have occasion to point out in previous decisions, "identity of interests disappears and the
consequent danger of perjury based on that Identity is nonexistent. Likewise, in such a
situation, the security and confidence of private life which the law aims at protecting will be
nothing but Ideals which, through their absence, merely leave a void in the unhappy home.
11 Thus, there is no reason to apply the martial disqualification rule.
3.
Finally, overriding considerations of public policy demand that the wife should not be
disqualified from testifying against her husband in the instant case. For, as aptly observed
by the Solicitor General," (t)o espouse the contrary view would spawn the dangerous
precedent of a husband committing as many falsifications against his wife as he could
conjure, seeking shelter in the anti-marital privilege as a license to injure and prejudice her
in secret all with unabashed and complete impunity.
IN VIEW OF ALL THE FOREGOING, the order of the lower court dated March 31, 1977,
disqualifying Victoria Manaloto from testifying for or against her husband, Benjamin
Manaloto, in Criminal Case No. 1011, as well as the order dated May 19, 1977, denying the
motion for reconsideration are hereby SET ASIDE. The temporary restraining order issued by
this Court is hereby lifted and the respondent Judge is hereby ordered to proceed with the
trial of the case, allowing Victoria Manaloto to testify against her husband.
SO ORDERED

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JUAN FRANCISCO, defendant-appellant.
Augusto Kalaw for appellant.
Assistant Solicitor General Roberto A. Gianzon and Acting Solicitor Isidro C. Borromeo for
appellee.
HILADO, J.:
Convicted of the crime of parricide by the Court of First Instance of Mindoro, Juan Francisco
appeals to this Court and asks us to reverse the decision of the trial court and to acquit him
of the crime charged.
On March 4, 1945, defendant, who had been previously arrested on charges of robbery, was
being held as detention prisoner in the municipal jail of Mansalay, Mindoro. On that date he
requested permission from the chief of police, and he was allowed to go with Sergeant
Pacifico Pimentel, who was detailed to guard him. Upon their reaching the house, the
sergeant allowed the prisoner to see his wife who was at the time in a room of said house,
while said sergeant remained at the foot of the stairs. After a few moments, Pimentel heard
the scream of a woman. Running upstairs, he met defendant's wife running out of the room
and holding her right breast which was bleeding. Still moments later, Pimentel saw
defendant lying down with his little son Romeo, aged one year and a half, on his breast.
Pimentel also found defendant to have a wound in his belly while his child had a wound in
the back. Pimentel found the child dead.
The prosecution, in recommending the imposition of the capital penalty upon the accused,
relies mainly on: (1) the affidavit, Exhibit C (translation, Exhibit C-1), which is a virtual
confession of the accused; (2) Exhibit D, which is the record made by the justice of the
peace of Mansalay of the arraignment of the defendant upon which the latter entered a plea
of guilty; and (3) the rebuttal testimony of Emilia Taladtad, wife of the appellant.
Exhibit C is an affidavit signed and sworn to by the appellant before the justice of the peace
of Mansalay on March 5, 1945,. Exhibit C-1 is its English translation. In said affidavit
appellant declares that: "I asked permission from the chief of police so that I may be able to

raise my bond and to indicate to me the house of one Guillermo Gervasio, a policeman, and I
was consented and the sergeant of police accompanied me to my house; that upon arriving
at the house, Sgt. Pacifico Pimentel allowed me to go up in order that I may be able to talk to
my wife and the sergeant of police awaited me in the stairs of the house; when I was in the
house, I remembered what my uncle told me to the effect that he would order someone to
kill me because I am a shame and a dishonor to our family and suddenly I lost my sense and
I thought to myself that if someone would kill me it would be more preferable for me to kill
myself; when I looked at the bed I saw a scissor near my wife and unconsciously I picked up
the said scissor and immediately stabbed my wife whereupon I looked for my child on the
bed and stabbed him; I killed my son Romeo Francisco whose age is more or less two years
and after that I stabbed myself; after stabbing myself, I heard a shot and the sergeant of
police asked me if I would surrender to him or not; I replied him "yes" then I lost my
consciousness."
Sergeant of Police Pimentel, whose veracity we find in the evidence no reason to doubt,
declared (p. 6, t.s.n., Lunar) that the accused confessed to him that because he was already
tired or disgusted with his life "on account of the accusation of his father-in-law" against him,
he wanted to wipe out his family by stabbing his wife, his son and himself, and killing the
three of them. The same witness also stated (p. 9, ibid.) that the accused confessed to him
that he stabbed his wife, his child and himself because he was ashamed, as his father-in-law
told him that he should rather die than live in shame for having dishonored the family of his
wife.
The voluntariness and spontaniety of the confession contained in Exhibit C was testified to
by the justice of the peace of Mansalay and police sergeant Pimentel, one Sebastian
Punzalan, and the chief of police Alfredo Iwahi; that said justice of the peace had previously
read the contents of the same affidavit to the accused and that the accused signed without
any intimidation having been exerted in the presence of said justice of the peace; that the
accused signed voluntarily in the session hall of the justice of the peace court in Barrio
Paclasan (pp. 26-27, ibid.) Pimentel testified, upon the same point, that no force was exerted
upon appellant to state what is contained in the affidavit; that he had not maltreated or
boxed the accused as pretended by the latter; that the contents of the exhibit were read to
the accused; that he did not threatened the accused to shoot the latter if he would not
swear to Exhibit C before the justice of the peace, as declared by said accused (pp. 25-26,
ibid.) In this connection we note from the testimony of the accused himself that on the way
to the house of the justice of the peace after the incident, he was being helped by the chief
of police Iwahi when, according to him, Sergeant Pimentel told him that he was going to
swear to the contents of Exhibit C and that if he would not do so Pimentel would shoot him
(p. 17, ibid.); that (the same accused assured the court) Iwahi treated him well (t.s.n., p. 20,
ibid.); and really from the entire testimony of this accused the good treatment accorded him
by Chief of Police Iwahi is clearly discernible. He was under preventive detention in the
house of Iwahi and it was Iwahi who suggested or told him, after he had killed and dressed
the former's pig, that he bring a kilo of the meat to his (appellant's) wife (p. 13, ibid.) It was
also Iwahi who allowed him to go to his house on the same occasion for the purposes of the
procurement of his bail (p. 13, ibid.).
Under these circumstances, besides the complete absence of proof of any reason or motive
why Pimentel should so threaten the accused, we find the accused's version incredible. On
page 16 of the same transcript, answering a question by the Court of First Instance, the
accused testified that he understands English and the translation Exhibit C-1 of the affidavit
Exhibit C is in that language.
Other indications of appellant's lack of trustworthiness are: While on page 14 of said
transcript he testified that he was the only one who went to the house of his wife because
Pimentel, according to him, remained in the house of Roberto Magramo, on page 13 he

declared that he was accompanied by the sergeant of police of Mansalay, Pacifico Pimentel
to the house of his wife and that the chief of police ordered Pimentel to so accompany him.
Contradicting the same pretension of his having gone alone to his wife's house is his own
testimony on page 17 of the transcript wherein he assured affirmatively the question of his
own counsel whether Pimentel was the policeman who was with him to guard him on the
occasion of his going to his wife's house; and really, while he imputed upon his wife the
wounding of their child, who died as a consequence thereof, he admitted that he did not tell
this to the justice of the peace of Mansalay (p. 18, ibid.), and the reason he assigned for this
passive conduct on his part to the effect that he was afraid of Pimentel (p. 19, ibid.) is
patently unacceptable, for no motive whatsoever has been established to make us believe
that the accused had reasons to be so afraid of Pimentel. Appellant's testimony to the effect
that Pacifico Pimentel was testifying against him because Pimentel "being my guard that
time he might be held responsible for allowing me to go alone" (p. 17, ibid.) is absolutely
without merit. This testimony clearly reveals a desire to show that because Pimentel allowed
the accused to go up the house while the former stayed at the foot of the stairs, said
Pimentel would be responsible for what had happened unless the accused was the one who
killed the child and wounded his wife rather than the wife having accidentally wounded the
child and killed him and been stabbed by the accused, who also stabbed himself. As we said
a moment ago, we do not give any merit to this purpose in testifying against the accused to
relieve himself of all responsibility for what had happened, it would have been more
conducive to this result if Pimentel had testified that it was not the accused, whom he had
allowed to go upstairs unguarded, who was guilty, but his wife, of the wounding of the child,
and that the accused wounded his wife only as the result of the obfuscation produced by the
child's death. And the fact that Pimentel gave the version which might place no small blame
on him for allowing the accused to go up the house alone, gives special weight to his
testimony.
This case, as developed by the evidence for the prosecution, which has not been destroyed
nor enervated by that of the defense, presents a truly strange happening. But the fact of the
commission of the crime of parricide appears to us to have been established beyond
reasonable doubt. As to the reasons impelling the commission of the act, the case is a
strange one and admittedly not common. But while it is not necessary even to prove motive
in case the commission of the crime is established as required by law (U.S. vs. Ricafor, 1
Phil., 173; U.S. vs. McMann, 4 Phil., 561; U.S. vs. Reyes, 18 Phil., 495; U.S. vs. Balmori and
Apostol, 18 Phil., 578), here we have a case of a crime proven beyond reasonable doubt, not
absolutely without a proven motive, but with proof of a motive testified to by the accused
himself in his confession, strange though it be. But at times "truth is stranger than fiction,"
and it so happens here. The law must be applied to the facts.
We have scanned and searched the evidence and the record diligently for facts and
circumstances which might sufficiently establish insanity or any allied defense, but we have
failed to find them.
As we construe the evidence, we believe that Exhibit C contains the truth, as narrated by the
accused himself who, at the time of making it, must have been moved only by the
determination of a repentant father and husband to acknowledge his guilt for facts which,
though perhaps done under circumstances productive of a diminution of the exercise of willpower, fell short of depriving the offender of consciousness of his acts. We will have occasion
to further consider this aspect of the case later.
Exhibit C was signed and sworn to by appellant the day following the fatal event.
Presumably, on making this confession appellant had not yet had time to reflect upon the
consequences of such a confession to himself egoism was not yet allowed to operate
against the promptings of his conscience. But when on February 23, 1946 almost one year
after this man testified in his own defense in the Court of First Instance, he already had

had ample opportunity to reflect upon those consequences. And what happened? As in
similar cases, he repudiated his confession, and alleged torture and violence to have been
exerted upon his person and his mind in order, so he now pretends, to extract it from him. As
we find the confession to have been given voluntarily, we feel justified in concluding that its
subsequent repudiation by the accused almost a year after must have been due to his fear
of its consequences to himself, which he not improbably thought might cost him his own life.
It was the struggle between the noble and the ignoble in the man, and the latter, aided by
instinct of self-preservation, won.
Defense counsel attacks the value of Exhibit C as evidence of guilt for the reason that the
statements contained therein were not, counsel contends, given spontaneously but through
use of violence and intimidation. He also questions the admissibility of Exhibit D on the
ground that it has not been properly identified; and, with more vigor and stronger emphasis,
he impugns the admissibility of the testimony of appellant's wife, invoking the provision of
section 26 (d) of Rule 123 prohibiting the wife and the husband from testifying for or against
each other.
As to Exhibit C, this document was sworn to and subscribed by said accused before the
justice of the peace of Mansalay. This official testified that he asked the prisoner before the
latter signed said exhibit whether he understood the contents thereof, and that said latter
answered in the affirmative. The witness further declared that appellant signed the exhibit
voluntarily and that said appellant said that the said affidavit was his (p. 10, ibid.). There is a
total absence of evidence, besides the testimony of appellant himself, to show that his
statements contained in said exhibit were extracted form him by the use of violence and
intimidation. While we are not unaware of the practice resorted to by some peace officers of
extracting admissions or confessions from persons accused of crime by the employment of
third-degree methods, in the present case we fail to find from the evidence sufficient proof
to destroy the categorical testimony of the justice of the peace that Exhibit C was signed by
appellant voluntarily and with a full understanding thereof. Furthermore, the statements of
appellant in said Exhibit C were corroborated by the testimony of his wife on rebuttal. This
leads us to the consideration of the admissibility of the wife's testimony.
The rule contained in section 265 (d) of Rule 123 is an old one. Courts and text-writers on
the subject have assigned as reasons therefor the following: First, identity of interest;
second, the consequent danger of perjury; third, the policy of the law which deems it
necessary to guard the security and confidences of private life even at the risk of an
occasional failure of justice, and which rejects such evidence because its admission would
lead to domestic disunion and unhappiness; and fourth, because where a want of domestic
tranquility exists, there is danger of punishing one spouse through the hostile testimony of
the other. This has been said in the case of Cargill vs. State (220 Pac., 64; 25 Okl. Cr., 314;
35 A.L.R., 133), thus:
The reasons given by law text-writers and courts why neither a husband nor wife shall in any
case be a witness against the other except in a criminal prosecution for a crime committed
by one against the other have been stated thus: First, identity of interests; second, the
consequent danger of perjury; third, the policy of the law which deems it necessary to guard
the security and confidences of private life even at the risk of an occasional failure of justice,
and which rejects such evidence because its admission would lead to domestic disunion and
unhappiness; and fourth, because, where a want of domestic tranquility exists, there is
danger of punishing one spouse through the hostile testimony of the other. (70 C.J., 119.)
However, as all other general rules, this one has its own exceptions, both in civil actions
between the spouses and in criminal cases for offenses committed by one against the other.
Like the rule itself, the exceptions are backed by sound reasons which, in the excepted
cases, outweigh those in support of the general rule. For instance, where the marital and

domestic relations are so strained that there is no more harmony to be preserved nor peace
and tranquility of interests disappears and the consequent danger of perjury based on that
identity is non-existent. Likewise, in such a situation, the security and confidences of private
life which the law aims at protecting will be nothing but ideals which, through their absence,
merely leave a void in the unhappy home.
At any rate, in the instant case the wife did not testify in the direct evidence for the
prosecution but under circumstances presently to be stated. It will be noted that the wife
only testified against her husband after the latter, testifying in his own defense, imputed
upon her the killing of their son. (p. 15, ibid.) By all rules of justice and reason this gave the
prosecution, which had theretofore refrained from presenting the wife as a witness against
her husband, the right to do so, as it did in rebuttal; and the the wife herself the right to so
testify, at least, in self-defense, not of course, against being subjected to punishment in that
case in which she was not a defendant but against any or all of various possible
consequences which might flow from her silence, namely: (1) a criminal prosecution against
her which might be instituted by the corresponding authorities upon the basis of her
husband's aforesaid testimony; (2) in the moral and social sense, her being believed by
those who heard the testimony orally given, as well as by those who may read the same,
once put in writing, to be the killer of her infant child. It has been aptly said that the law of
evidence is the law of common sense. Presuming the husband who so testified against his
wife to be endowed with common sense, he must be taken to have expected that the most
natural reaction which the said testimony would give rise to on the part of the prosecution,
as well as of his wife, was to deny upon rebuttal the new matter which was involved in the
same testimony, namely, the imputation that it was his wife who killed their little son. Upon
the part of the prosecution, because he not only limited himself to denying that he was the
killer, but went further and added what was really a new matter consisting in the imputation
of the crime upon his wife. And upon the part of the wife, because of the reasons already set
forth above. Hence, in giving such testimony, the husband must, in all fairness, be held to
have intended all its aforesaid natural and necessary consequences. By his said act, the
husband himself exercising the very right which he would deny to his wife upon the
ground of their marital relations must be taken to have waived all objection to the latter's
testimony upon rebuttal, even considering that such objection would have been available at
the outset.
At this point, it behooves us to emphasize the all-important role of the State in this case. The
State being interested in laying the truth before the courts so that the guilty may be
punished and the innocent exonerated, must have the right to offer the rebutting testimony
in question, even against the objection of the accused, because it was the latter himself who
gave rise to its necessity. It may be said that the accused husband thought that he would
have more chances of convincing the court of his pretended innocence if he pointed to his
wife as having caused the death of their child, instead of simply denying that he was the
author of the fatal act. To this we would counter by saying that if he was to be allowed, for
his convenience, to make his choice and thereby impute the act upon his spouse, justice
would be partial and one-sided if both the State and the wife were to be absolutely
precluded from introducing the latter's rebutting testimony.
As well-settled as this rule of marital incompetency itself is the other that it may be waived.
Waiver of incompetency.
Objections to the competency of a husband or wife to testify in a criminal prosecution
against the other may be waived as in the case of the other witnesses generally. Thus, the
accused waives his or her privilege by calling the other spouse as a witness for him or her,
thereby making the spouse subject to cross-examination in the usual manner. It is wellestablished that where an accused introduces his wife as a witness in his behalf, the state is

entitled to question her as to all matters germane and pertinent to her testimony on direct
examination. It is also true that objection to the spouse's competency must be made when
he or she is first offered as witness, and that the incompetency may be waived by the failure
of the accused to make timely objection to the admission of the spouse's testimony,
although knowing of such incompetency, and the testimony admitted, especially if the
accused has assented to the admission, either expressly or impliedly. Other courts have held
that the witness's testimony is not admissible even with the other spouse's consent. Clearly,
if the statute provides that a spouse shall in no case testify against the other except in a
prosecution for an offense against the other, the failure of the accused to object does not
enable the state to use the spouse as a witness. (3 Wharton's Criminal Evidence, 11th Ed.,
section 1205, pp. 2060-2061.)
Wharton, in note 10 at the foot of page 2060 of the cited volume refers us to section 1149
appearing on page 1988 of the same volume, dealing with waiver objection to incompetency
of witnesses in general. We transcribe this section for convenient reference:
Waiver of objection to incompetency.
A party may waive his objection to the competency of a witness and permit him to testify.
A party calling an incompetent witness as his own waives the incompetency. Also, if, after
such incompetency appears, there is failure to make timely objection, by a party having
knowledge of the incompetency, the objection will be deemed waived, whether it is on the
ground of want of mental capacity or for some other reason. If the objection could have been
taken during the trial, a new trial will be refused and the objection will not be available on
writ of error. If, however, the objection of a party is overruled and the ruling has been
excepted to, the party may thereafter examine the witness upon the matters as to which he
was allowed to testify to without waiving his objections to the witness's competency. (Ibid.,
section 1149, p. 1988.)
It will be noted, as was to be expected, that in the last above-quoted section, the author
mentions certain specific cases where the courts concerned hold that there was waiver, but
for obvious reasons neither the author nor said courts have attempted to make an
enumeration of all possible cases of waiver. In the very nature of things, it would be
impossible to make a priori such a complete enumeration and to say that it is exclusive. So
long as the Legislature itself does not make its own statutory and exclusive specification of
cases of such waiver and we doubt that it ever will no complete and exclusive
enumeration can, nor should, be attempted by the courts, for in the absence of such
legislation the cases of waiver will be as indefinite in number as indefinite are and always
will be the varying and unpredictable circumstances surrounding each particular case.
To illustrate, Mr. Wharton says above that the accused waives his or her privilege by calling
the other spouse as a witness for him or her, thereby making the spouse subject to crossexamination in the usual manner, the reason being that the State is entitled to question the
spouse so presented as to all matters germane and pertinent to the direct testimony. In the
same way, and for a similar reason, when the herein appellant gave his testimony in
question in his defense, the State had the right to rebut the new matter contained in that
testimony consisting in the imputation upon his wife of the death of the little boy. And that
rebuttal evidence, which was rendered necessary by appellant's own testimony, could be
furnished only by his wife who, as he fully knew, was alone with him and their son at the
precise place and time of the event. This right to rebut is secured to the State, no less than
to the accused, by Rule 115, section 3, paragraph (c), the provision further authorizing the
court, in furtherance of justice, to permit one or the other party to offer "new additional
evidence bearing upon the main issue in question." So that if the waiver that we here
declare to flow from the above-mentioned testimony of appellant does not happen to be

among those which were mentioned in the cases cited by Mr. Wharton, that is no reason
against the existence of said waiver.
When the husband testified that it was his wife who caused the death of their son, he could
not, let us repeat, justly expect the State to keep silent and refrain from rebutting such new
matter in his testimony, through the only witness available, namely, the wife; nor could he
legitimately seal his wife's lips and thus gravely expose her to the danger of criminal
proceedings against her being started by the authorities upon the strength and basis of said
testimony of her husband, or to bear the moral and social stigma of being thought, believed,
or even just suspected, to be the killer of her own offspring. A decent respect and
considerate regard for the feelings of an average mother will tell us that such a moral and
social stigma would be no less injurious to her than a criminal punishment. And if the wife
should, in such a case and at such a juncture, be allowed to testify upon rebuttal, the scope
of her testimony should at least be the same as that of her husband. This is only simple
justice and fairness dictated by common sense. Since the husband had testified that it was
his wife who caused the death of the little boy, she should be allowed to say that it was
really her husband who did it. We hold that it is not necessary, to justify such rebuttal
evidence, and to declare the existence of the waiver upon which it was based, that the wife
be in jeopardy of punishment in the same case by reason of such testimony of her accused
husband. The rule of waiver of objection to the competency of witnesses generally does not
require this prerequisite in the case between husband and wife. Rather the rule makes the
determination of the question hinge around the consequences which by common sense, in
justice and in fairness, should be deemed to have been expected by the spouse who first
testified naturally to flow from his act of giving that testimony. At any rate, the trial court not
only had the power to allow the State to utilize the wife as rebuttal witness, but also the
discretion to permit "new additional evidence bearing upon the main issue in question." But
even restricting the wife's testimony to merely contradicting her husband's version that she
was the one who killed their child, there is evidence beyond reasonable doubt that appellant
was the killer. With the testimony of both spouses upon the point, instead of that of the
accused alone, let justice take its course.
As to Exhibit D, this document was a part of the record of the case in the justice of the peace
of court which was expressly presented by the prosecution as evidence in the Court of First
Instance.
But after all has been said and done, in justice to the accused, we believe that, whether we
are dealing with a simpleton or an eccentric, or we have here one of those well-nigh
inexplicable phenomena in human conduct where the judge finds himself at a loss to
discover an adequate motivation for the proven acts of the accused, indulging all
reasonable intendments in favor of appellant, we are of opinion that when he committed the
crime charged against him he must have been suffering from some illness (of the body, the
mind, the nerves, or the moral faculty) as is contemplated in paragraph 9 of article 13 of the
Revised Penal Code as a mitigating circumstance, namely, "such illness of the offender as
would diminish the exercise of the will-power of the offender without however depriving him
of consciousness of his acts."
Article 246 of the Revised Penal Code punishes parricide by the penalty of reclusion
perpetua to death. Article 63, paragraph 3, of the same code, provides that when the
commission of the act is attended by some mitigating circumstance and there is no
aggravating circumstance, and the law prescribes a penalty composed of two indivisible
penalties, the lesser penalty shall be applied; in this case, in view of the above indicated
circumstance and there being no aggravating circumstance, the lesser penalty is reclusion
perpetua, which was the penalty correctly applied by the trial court, which penalty, of
course, carries with it the accessory penalties provided for in article 41 of the said Code. The

accused should also be sentenced to indemnify the heirs of the deceased Romeo Francisco
in the sum of P2,000, and to pay the costs.
As above modified, the appealed judgment is affirmed, with costs against appellant. So
ordered.
Moran, C.J., Paras, Perfecto, Bengzon, and Tuason, JJ., concur.
Briones J., concurs in the result.
PADILLA, J.:
I concur in the result. To my mind the evidence is sufficient to support the judgment of
conviction without taking into consideration the testimony of the appellant's wife in rebuttal.
I agree with Mr. Justice Feria in his dissent that she is incompetent to testify against the
appellant, her husband, there being an objection to her testifying against him.
Separate Opinions
PABLO, M., concurrente y disidente:
Concurro con la opinion de la mayoria en cuanto condena al acusado. En mi opinion aun sin
tener en cuenta la declaracion de la esposa del acusado en contra-pruebas, obra en autos
concluyente prueba que establece la culpabilidad del acusado.
En cuanto a la interpretacion de la Regla 123, articulo 26, seccion (d), concurro con la
disidencia del Magistrado Sr. Feria. La declaracion de la esposa debe ser excluida como
prueba contra el acusado, por inadmissible.
FERIA, J., dissenting:
Without necessity of discussing the merits of the case and deciding whether the appellant's
conviction by the Court of First Instance must be affirmed or reversed, for the majority has
decided to affirm it and it would be useless now for the undersigned to dissent from or
concur in the conviction of the appellant, we dissent from the new theory enunciated in the
majority opinion that the appellant's testimony to the effect that his wife was the one who
unintentionally inflicted the wound which caused the death of the child, capacitated his wife
to testify as a witness on rebuttal against her husband, and "constituted a waiver of all
objections to her testimony."
The pertinent portion of the majority decision reads as follows:
"The reasons given by law text-writers and courts why neither a husband nor wife shall in
any case be a witness against the other except in a criminal prosecution for a crime
committed by one against the other have been stated thus: First, identity of interests,
second, the consequent danger of perjury; third, the policy of the law which deems it
necessary to guard the security and confidences of private life even at the risk of an
occasional failure of justice, and which rejects such evidence because its admission would
lead to domestic disunion and unhappiness; and fourth, because, where a want of domestic
tranquility exists, there is danger of punishing one spouse through the hostile testimony of
the other. (70 C.J., 119)"
However, as all other general rules, this one has its own exceptions, both in civil actions
between the spouses and in criminal cases for offenses committed by one against the other.
Like the rule itself, the exceptions are backed by sound reasons which, in the excepted
cases, outweigh those in support of the general rule. For instance, where the marital and

domestic relations are so strained that there is no more harmony to be preserved nor peace
and tranquility which may be disturbed, the reason based upon such harmony and
tranquility fails. In such case identity of interests disappears and the consequent danger of
perjury based on that identity is non-existent. Likewise, in such a situation, the security and
confidences of private life which the law aims at protecting will be nothing but ideals which,
through their absence, merely leave a void in the unhappy home."
The new theory of the majority is evidently untenable for it is predicated upon the incorrect
premise or assumption that the abovementioned reasons or grounds of the incapacity of one
of the spouses to testify against the other in a proceeding in which the latter is a party, are
also applicable to testimony of one spouse against the other who is not a party to the cause
which it is offered or given, as in the present case. This premise or assumption is incorrect,
for said reasons do not apply to the latter case. Were it applicable, the law would have also
disqualified one spouse to give testimony which in any way disparages or disfavor the other
although the latter is not a party to the cause; but the law does not so. The prohibition
contained in section 26 (d) of Rule 123 only relates to cases in which the testimony of a
spouse is offered for or against the other in a proceeding to which the latter is a party (U.S.
vs. Concepcion, 31 Phil., 182; People vs. Natividad, 70 Phil., 315). And the reason is obvious.
Although the testimony of the husband against his wife who is not a party to the case is
admissible; yet, as said testimony can not be used as evidence against the wife in a civil
case or criminal prosecution against her, it would not effectively strain the marital and
domestic relations; lead to domestic disunion and unhappiness; disturb the peace, harmony,
and tranquility of the family, and destroy the identity of interest.
Such testimony, far from producing said results, might have a different effect. Where one of
the spouses testifies in his defense that the other spouse, who is not a party to the case, is
the one who committed the crime charged, his testimony, if believed by the court, would
result in the acquittal and release of the defendant spouse and enable the accused, if
confined in prison, to join again his spouse, without placing the latter in danger of being
prosecuted and convicted by his testimony. In the present case, the testimony of the
appellant does not require any rebuttal by his wife, because, according to the clear
provisions of law, the latter can not testify against her husband appellant, and the courts
should take into consideration in determining the probative force of such a testimony. And it
does not call for a denial by the wife in herself or own defense, because it can not be used or
admitted without her consent as evidence in a criminal case instituted against her for her
son's death.
Under the new theory of the majority, the prosecutor of one spouse who, in order to free
himself from liability as defendant in a criminal case would testify, as the appellant has
testified, that his other spouse who is not a party to the case is responsible for their child's
death, may take advantage of such testimony to induce that other spouse to testify in her
defense according to the prosecution, and the latter in so testifying would naturally accuse
the defendant to be the guilty party in order to save himself or herself from criminal liability.
Who may give the assurance that the defendant's wife in the present case did testify the
way she she testified against her husband, not because her husband is really guilty, but
because she wanted to defend and save herself, taking into consideration the way the
question were propounded to her by the prosecution and her answers thereto? The
prosecution asked her: "The accused testified here that you were the one who inflicted the
wound at the back of Romeo Francisco, is that right?" and she answered: "No sir he was the
one who inflicted the wound to my son Romeo Francisco." "P. Did you see him inflict the
wound to the child? R. Yes sir." (P. 23, st. notes.) Who may dispel from the mind the doubt
that the prosecution in the court below, believing erroneously, but in good faith, that the
testimony of the appellant in his defense is admissible against and tended to make his wife
criminally responsible, imparted such wrong belief to and induced her thereby to testify

imputing the commission of the crime to her husband although he is not guilty, just to save
herself.
It is plain that if the wife testified against her husband, it was because the fiscal erroneously
assumed in his interrogatory above quoted that the appellant later imputed to her the crime
charged, for the testimony of the appellant quoted below clearly belies the fiscal's
assumption:
P. Please tell the Court what happened when you sat beside your wife?
Sr. Fiscal: Objection, no basis.
Court: He may answer.
R. When I sat beside my wife and our son was lying face downward on the bed I was joking
my wife because at the time I was drunk.
P. What was the relative position of your son with respect to you and your wife? R. I am
going to demonstrate our relative positions, (the accused was facing his wife and the wife
was facing in the opposite direction and the son was between them lying face downward and
little bit behind on the bed). I used to touch her, so she swung her hand backward towards
me, then I stood up and evaded the blow. Later on I heard the boy cried.
P. What hand did your wife swing, left or right hand?-- R. Her right hand.
P. Is this the very scissors when she swung her arm? R. Yes, sir.
P. After she swung her arm what happened? R. The child cried.
P. Then what happened? R. When I stood up our child was already wounded so I became
obfuscated.
P. Then what happened? R. I got hold of the scissors that she was holding and stabbed her
and then stabbed myself."
Besides, it is to be borne in mind that the capacity or incapacity of one of the spouses to
testify against the other is governed by the statute in force and the Court should construe
the statute such as it is, and not as it should. It is for the law-making power to evolve new
theories and enact law in accordance therewith. The provisions of section 26 (c), Rule 123,
were copied from those of section 383 (3) of Act No. 190, as amended, and the latter were in
turn taken from similar provisions of law in force in the States of the Union, which are based
on the common-law. Under the common-law, husband and wife are absolutely incompetent
against each other except in a civil case instituted by one against the other, or in a criminal
case for a crime committed by one against the other; and the consent of a spouse can not
render the other spouse competent. But in many states, statutes were enacted granting
exceptions upon the common-law rule and enabling one of them to testify against the other
with the consent of the latter in civil case, or the consent of the other or both in criminal
cases. Under such statute, one spouse who calls the other as a witness thereby consents
that the latter shall testify; and if the adverse party offers one of the spouses against the
other and the latter does not object, then he or she is presumed to have consented to it.
In the case of Toskstein vs. Birmmerle (150 Mo., 491; 131 S.W., 126), it was held that
incompetency of a wife continues as at common-law where she is not rendered competent
under the provision of the enabling statute. In the case of Conley vs. State (176 Ark., 654; 3
S.W. [2d], 980), the Supreme Court of Arkansas ruled that statutes providing that no person

shall be excluded from testifying in prosecution for violation of Liquor Act do not change the
general rule that a wife cannot testify against her husband in a criminal prosecution. And in
another case entitled Connecticut Fire Ins. Co. vs. Chester P. & Ste. G.R. Co. (171 Mo. App.,
70; 153 S.W., 544), it was held that unless wife comes within exceptions of the enabling
statute granting exceptions upon the common-law rule excluding her testimony in an action
in which her husband is interested, the wife can not testify.
Therefore, inasmuch as our statute on the matter, or section 26 (d), Rule 123, provides that
a wife cannot be examined for or against her husband without his consent except in a
criminal case for crime committed by one against the other, and the appellant in the present
case objected strenuously to the testimony of her wife against him, her testimony is
inadmissible and can not be taken into consideration in the decision of the case. We can not,
by any process of reasoning or stretch of imagination, construe said provision so as to
capacitate a wife to be a witness against her husband if the latter, in testifying in his own
defense, says that his wife was the one who accidentally inflicted the fatal wound on their
small child. We can not evolve a new theory, however reasonable and plausible it may be,
and apply for the first time as if it were the law in the present case against the appellant. It
may be a good theory or a sufficient reason for amending the law in order to include it as
one of the exceptions of the rule incapacitating one spouse to testify against the other; but
we can not legally apply it as a law now against the appellant, a defendant in a criminal
case.
But the majority, not being sure of its stand on the admissibility of the testimony of the wife
against her husband, further states:
At any rate, in the instant case the wife did not testify in the direct evidence for the
prosecution but under circumstances presently to be stated. It will be noted that the wife
only testified against her husband after the latter, testifying in his own defense imputed
upon her the killing of their little son. (P. 15, ibid.) By all rules of justice and reason this gave
the prosecution, which had theretofore refrained from presenting the wife as a witness
against her husband, the right to do so, as it did in rebuttal; and to the wife herself the right
to so testify, at least, in self-defense,. . .. (P. 704, ante.)
To this we may reply that, in the first place, the testimony of the wife to the effect that her
husband was the one who inflicted and she saw him inflict the wound on Romeo Francisco
that caused the death of the latter (pp. 23, 24, st. notes), is not a rebutting but a new
additional evidence bearing upon the main issue whether or not the defendant is guilty of
the offense charged. For according to section 3 (c), Rule 115, the prosecution may, after the
defendant has presented evidence in support of his defense, "offer rebutting testimony, but
rebutting only, unless the court in furtherance of justice, permit them to offer new additional
evidence bearing upon the main issue in question." Her testimony would have been in
rebuttal only if she had limited herself to say that she did not inflict the wound on her son.
And in the second place, to make the testimony of the wife admissible in rebuttal against the
appellant, would be to amend the provision of said section 26 (d) of Rule 123 and establish
another exception, that has never been adopted by the statutes anywhere in the States of
the Union and in this jurisdiction.
And not being sure as to the scope of a rebuttal testimony, the majority opinion adds the
following:
When the husband testified that it was his wife who caused the death of their son, he could
not, let us repeat, justly expect the State to keep silent and refrain from rebutting such new
matter in his testimony, through the only witness available, namely, the wife; nor could he
legitimately seal his wife's lips and thus gravely expose her to the danger of criminal
proceedings against her being started by the authorities upon the strength and basis of said

testimony of her husband, or to bear the moral and social stigma of being thought, believed,
or even just suspected, to be the killer of her own offspring. . . . And if the wife should, in
such a case and at such a juncture, be allowed to testify upon rebuttal, the scope of her
testimony should at least be the same as that of her husband. This is only simple justice and
fairness dictated by common sense. Since the husband had testified that it was his wife who
caused the death of the little boy, she should be allowed to say that it was really her
husband who did it. . . . At any rate, the trial court not only had the power to allow the State
to utilize the wife as rebuttal witness, but also the discretion to permit "new additional
evidence bearing upon the main issue in question." But even restricting the wife's testimony
to merely contradicting her husband's version that she was the one who killed their child,
there is evidence beyond reasonable doubt that appellant was the killer.
It is elemental that the scope of a rebuttal is circumscribed to contradicting or destroying the
evidence of the adverse party tending to prove new matter in favor of the latter, and can not
extend to disproving directly the main issue in question, that is, the guilt of the appellant in
the present case. Evidently, the testimony of the husband that his wife was the one who
unintentionally inflicted the wound which caused the death of their child, can not gravely
expose her to the danger of criminal proceeding against her," and "to bear the moral and
social stigma of being thought, believed, or even just suspected to be the killer of her own
offspring;" because said testimony is not admissible against his wife in that or in any other
cases, and everybody is presumed to know the law that incapacitates the wife to testify
against her accused husband and contradict what the latter may testify against her however
false it may be.
The conclusion in the majority decision that, if not in rebuttal, the court had discretion to
permit the prosecution to present the testimony of the wife, as additional evidence bearing
upon the main issue in question, is absolutely untenable, since we have already shown that
such a testimony is inadmissible as evidence, and this court has already decided in the case
of People vs. Natividad (above cited), squarely applicable to the present case, that "a wife
can not testify against her husband in a criminal case in which the latter was charged with
having killed the child of the former."
The matter under discussion is the incompetency of the wife to testify, directly or in rebuttal,
in the present case against her husband, and not the guilt or innocence of the appellant.
Hence the last statement in the above quoted decision of the majority that "even restricting
the wife's testimony as merely contradicting the husband's version that she was the one
who killed their child, there is other evidence beyond reasonable doubt that the appellant is
the killer," is out of place for it has no bearing on the issue. The conclusion of fact on which a
sentence declaring a defendant guilty must be positive and not argumentative. And if the
appellant is to be convicted on the strength of other evidence, aside from the testimony of
the appellant's wife, the decision should express clearly and distinctly the facts and the law
on which the decision convicting the appellant is based, as required by section 12, Article IX
of the Constitution.
The majority's conclusion that the testimony of the appellant to the effect that the cause of
the death of their child was the wound unintentionally inflicted by his wife, constituted a
waiver of all objection to her testimony, is without any foundation in fact and in law; because
the defendant had strongly and persistently objected to his wife taking the witness stand (st.
t.s.n., p. 23), and no law, court or authority, from time immemorial up to the present, has
ever recognized such testimony as a waiver. The only cases in which the incapacity of one of
the spouses to testify against the other is considered waived according to law, are those
stated in section 1205, of Wharton on Criminal Evidence, Vol. 3, 11th ed., quoted in the very
opinion of the majority, which says the following:

SEC. 1205. Waiver of incompetency. Objections to the competency of a husband or wife to

testify in a criminal prosecution against the other may be waived as in the case of other
witnesses generally. Thus, the accused waives his or her privilege by calling the other
spouse as a witness for him or her, thereby making the spouse subject to cross-examination
in the usual manner. It is well-established that where an accused introduces his wife as a
witness in his behalf, the state is entitled to question her as to all matters germane and
pertinent to her testimony on direct examination. It is also true that objection to the
spouse's competency must be made when he or she is first offered as a witness, and that
the incompetency may be waived by the failure of the accused to make timely objection to
the admission of the spouse's testimony, although knowing of such incompetency, and the
testimony admitted, especially if the accused has assented to the admission, either
expressly or impliedly.
But the decision, after quoting subsequently section 1149 of the same work, which refers to
waiver of objection to competency of a witness in general, concludes by saying "It will be
noted, as was to be expected, that in the last-quoted section, the author mentions certain
specific cases where the courts concerned hold that there was waiver, but for obvious
reasons neither the author nor the said courts have attempted to make an enumeration of
all possible cases of waiver. In the very nature of things, it would be impossible to make a
priori such a complete enumeration and to say that it is exclusive." The last-quoted section
in the decision reads in its pertinent part as follows:
SEC. 1149. Waiver of objection to incompetency. A party may waive his objection to the
competency of a witness and permit him to testify. A party calling an incompetent witness as
his own waives the incompetency. Also, if, after such incompetency appears, there is a
failure to make timely objection, by a party having knowledge of the incompetency, the
objection will be deemed waived, whether it on the ground of want of mental capacity or for
some other reason. . .
The cases of waiver specified by Wharton in sections 1149 and 1205 of his work on criminal
evidence above-quoted, are the only cases of waiver of the objection to the competency of
one spouse to testify against the other, as well as of the objection to the competency of any
other witness to testify. Not only Wharton but all works on criminal evidence enumerate only
those cases, because there are no other cases provided for by the statutes or declared by
the courts in their decisions. Authors or writers on evidence do not generally evolve and
formulate new legal theories but only expound those based on positive laws as the latter
have been interpreted and construed up-to-date by the courts. It is to be presumed that
during several centuries in which the rule excluding the testimony of one spouse in a case in
which the other is interested has been in force, a case similar to the present must have been
arisen, and it would be too presumptuous to assume that this Court is the first to find
correctly that the case is one of the exceptions upon said rule. For the majority can not point
out a single decision in support of the exception which the majority intends to establish now
for the first time.
The above-mentioned cases of the objection to the competency of one of the spouses to
testify against the other are the only ones, and no writers on evidence nor courts did or
could enumerate or recognize other cases, since no legislative or law making power had so
provided; because what is called waiver is merely or nothing more than the consent of one
spouse that the other testify in a case in which he or she is interested or a party, consent
provided for as exception by law. As the consent may be either express or implied: express
when the spouse who is a party presents the other spouse to testify, and implied when the
adverse party or the prosecution presents the other spouse as a witness, and the spouse
against whom the other is to testify does not object; so the waiver may also be expressed
and implied. And, therefore, just as there can not be any other way of giving such consent
than those above-stated, so there is no other case of waiver under the laws now in force.

Therefore, this Court must, in the interest of justice, reject the testimony of the defendant's
wife, admitted as rebuttal evidence over the objection of the appellant, and considered by
the majority as corroborative of the defendant's extrajudicial confession Exhibit C, and
decide whether this confession alone is sufficient to support the appellant's conviction.

JOSE MANUEL LEZAMA and PAQUITA LEZAMA, petitioners,

vs.
HON. JESUS RODRIGUEZ, Judge of the Court of First Instance of Iloilo,
JOSE DINEROS, in his capacity as Receiver of the LA PAZ ICE PLANT and COLD
STORAGE CO., INC., and THE HON. COURT OF APPEALS, respondents.
Efrain B. Trenas and Sergio D. Mabunay for petitioners.
Ricardo J. Gerochi for respondents.
CASTRO, J.:
The issue tendered for resolution in this case is whether a wife, who is a co-defendant of her
husband in an action, may be examined as a hostile witness by the adverse party under
section 6 of Rule 132 of the Rules of Court, without infringing on her marital privilege not to
testify against her husband under section 20 (b) of Rule 130. The trial court, presided by the
respondent Judge Jesus Rodriguez, ruled in the affirmative and required the wife to appear
and testify. The petitioners sued for certiorari but the Court of Appeals dismissed their
petition1 and denied their motion for reconsideration.2 Hence this appeal.3
On July 18, 1960 Jose S. Dineros, acting as receiver of the La Paz Ice Plant & Cold Storage Co.
in Iloilo, together with C.N. Hodges and Ricardo Gurrea, filed an action in the Court of First
Instance of Iloilo for the annulment of a judgment rendered against the La Paz Ice Plant by
the Court of First Instance of Manila in civil case 39827. Named as defendants were Marciano
C. Roque, in whose favor judgment was rendered, and the spouses Jose Manuel and Paquita
Lezama. The complaint alleged that, because of mismanagement by the Lezamas, the La
Paz Ice Plant was placed under the receivership of Dineros; that during the pendency of the
receivership, Marciano C. Roque brought an action against the La Paz Ice Plant in the Court
of First Instance of Manila for the collection of P150,000, which sum he had supposedly lent
to it; that summons was served not on the receiver but on the spouses Jose Manuel and
Paquita Lezama; and that, through the collusion of the Lezamas, Roque was able to obtain
judgment by default against the company. It was claimed that, because the summons was
served on Jose Manuel Lezama instead of on the receiver, the Court of First Instance of
Manila acquired no jurisdiction over the La Paz Ice Plant and that, therefore, the decision of
that court was void.1vvphi1.nt

In their answer, the defendant spouses (the herein petitioners), while admitting that the
company was placed under receivership, maintained that Jose Manuel Lezama nevertheless
remained president of the La Paz Ice Plant and that as such he had authority to receive in
behalf of the company the court summons in civil case 39827. They denied entering into
collusion with Roque and averred that they did not contest Roque's claim because they knew
it to be a legitimate obligation which the La Paz Ice Plant had incurred pursuant to a
resolution of its board of directors.
Issues having been joined, the case was thereupon heard. At the hearing Dineros asked the
court to issue a subpoena to Paquita Lezama to testify as "a witness summoned by the
plaintiffs in accordance with the Rules of Court." The request was granted over the objection
of the petitioners who invoked the following provision of the Rules of Court:
A husband cannot be examined for or against his wife without her consent; nor a wife for or
against her husband without his consent, except in a civil case by one against the other, or
in a criminal case for a crime committed by one against the other, or in a criminal case for a
crime committed by one against the other.4
This provision deals with two different matters which rest on different grounds of policy: the
disqualification of husband and wife to testify in each other's behalf, as well as their
privilege not to testify against each other.5 The fundamental theory of the common law is
said to be that relationship of the spouses, not their pecuniary interest, is the basis of the
disqualification.6 Indeed section 20 of Rule 130 is entitled "Disqualification by reason of ...
relationship."
On the other hand, while a shelter of emotional reasons has been offered7 for the privilege,
the "true explanation [which] is after all the simplest"8 and which constitutes "the real and
sole strength of the opposition to abolishing the privilege," is the natural repugnance in
every fair-minded person to compelling a wife or husband to be the means of the other's
condemnation and to subjecting the culprit to the humiliation of being condemned by the
words of his intimate life partner.9
Here the request for subpoena indicated that Paquita Lezama was to do no more than testify
as an adverse party in the case and, indeed, in the light of the allegations both in the
complaint and in the answer, the request was apparently one that could reasonably be
expected to be made. Thus, the complaint charged
13. That in obtaining the judgment by default in Civil Case No. 39827 of the Court of First
Instance of Manila against the La Paz Ice Plant & Cold Storage Co., Inc. defendants, in gross
and evident bad faith, and in fraudulent conspiracy, made it appear that the La Paz Ice Plant
& Cold Storage Co., Inc. had obtained a loan of P150,000.00 from defendant Marciano C.
Roque thru defendant Jose Manuel Lezama allegedly upon an authority vested upon
defendant Jose Manuel Lezama by the alleged Board of Directors of the La Paz Ice Plant &
Cold Storage Co., Inc. allegedly evidenced by the minutes of the meetings of the Board of
Directors of the said corporation signed by defendant Jose Manuel Lezama and attested to
by Benjamin Luis Borja and Paquita B. Lezama and that defendants spouses Jose Manuel
Lezama and Paquita B. Lezama had manipulated the books of the corporation by making it
appear that such fictitious loan was then in existence.
On the other hand, the answer claimed
13. That the herein defendants specifically deny all the allegations contained in paragraph
13 of the complaint; the truth is, that the herein defendants have not conspired and acted in
bad faith with the plaintiff [Marciano C. Roque] in Civil Case No. 39827 of the Court of First
Instance of Manila for the rendition of the said judgment referred to therein; for the truth is,

that the herein defendants, in their capacities as President-Manager and Secretary of the La
Paz Ice Plant & Cold Storage Co., Inc., believing as they believe that the obligation sought to
be enforced by said civil action being legitimate and the allegations of the complaint in said
Civil Case No. 39827 of the Court of First Instance of Manila are true, they did not deem it
wise to contest the same; that the obligation of P150,000.00 of the La Paz Ice Plant & Cold
Storage Co., Inc., which the defendant Marciano C. Roque sought to be enforced in Civil Case
No. 39827 of the Court of First Instance of Manila was legitimately contracted in accordance
with law; that said obligation was duly entered in the books of the corporation and that the
said loan is not fictitious; that the amount realized therefrom was spent for the benefit of the
said corporation.
Thus, while the petitioners denied the charge that the loan was fictitious, they did not deny
the allegation that it was Paquita Lezama who, as secretary of the company, signed the
minutes of the meeting at which Jose Manuel Lezama was allegedly authorized to negotiate
the loan and that it was she who, likewise as secretary, made the entry in the books of the
corporation.
It was obviously to test the truth of the assertion that the loan transaction was above board
that Dineros, the company receiver, wanted Paquita Lezama on the witness stand, not as a
spouse witness "for or against her husband," but rather as an adverse party in the case.
It is postulated that a party can make, as it were, such forays into his opponent's position on
the strength of section 6 of Rule 132 which provides:
Direct examination of unwilling or hostile witnesses. A party may interrogate any unwilling
or hostile witness by leading questions. A party may call an adverse party or an officer,
director, or managing agent of a public or private corporation or of a partnership or
association which is an adverse party, and interrogate him by leading questions and
contradict and impeach him in all respects as if he had been called by the adverse party and
the witness thus called may be contradicted and impeached by or on behalf of the adverse
party also, and may be cross-examined by the adverse party only upon the subject-matter of
his examination in chief.
The basic issue may therefore be restated thus: In this case where the wife is a co-defendant
in a suit charging fraud against the spouses, can the wife be compelled to testify as an
adverse party witness concerning her participation in the alleged fraud without violating
section 20 (b) of Rule 130?
It is argued that the wife may be so compelled but her testimony would be receivable only
against her.10 It is even suggested that "each may testify in his or her own behalf, although
the testimony may inure to the benefit of the other spouse, or against his or her own
interest, although the testimony may also militate against the other spouse."11 Upon the
other hand, it is insisted that compelling Paquita Lezama to testify will transgress section
20(b) of Rule 130, especially if her testimony will support the plaintiff's charge.
The complaint charges "fraudulent conspiracy" on the part of the spouses and one Marciano
C. Roque to make it appear that the La Paz Ice Plant & Cold Storage Co., Inc. was indebted to
Roque. The wife, Paquita Lezama, is called upon to testify as an adverse party witness on the
basis of her following participation in the alleged fraudulent scheme: "that it was Paquita
Lezama who as Secretary of the company signed the minutes of the meeting during which
Manuel Lezama was allegedly authorized to negotiate the loan and that it was she who,
likewise as Secretary, made the entry in the books of the corporation."
Evidently, Paquita Lezama will be asked to testify on what actually transpired during the
meeting and will be asked questions on the matter of the veracity or falsity of the entry in

the books of the corporation. Whether her testimony will turn out to be adverse or beneficial
to her own interest, the inevitable result would be to pit her against her husband. The
interests of husband and wife in this case are necessarily interrelated. Testimony adverse to
the wife's own interests would tend to show the existence of collusive fraud between the
spouses and would then work havoc upon their common defense that the loan was not
fictitious. There is the possibility, too, that the wife, in order to soften her own guilt, if guilty
she is, may unwittingly testify in a manner entirely disparaging to the interests of the
husband.
Because of the unexpensive wording of the rule which provides merely that the wife cannot
be examined "for or against her husband without his consent," it is further argued that
"when husband and wife are parties to an action, there is no reason why either may not be
examined as a witness for or against himself or herself alone," and his or her testimony
could operate only against himself or herself.12
Even if such view were generally acceptable as an exception to the rule, or even as a
separate doctrine, it would be inapplicable in this case where the main charge is collusive
fraud between the spouses and a third person, and the evident purpose of examination of
the wife is to prove that charge.
Indeed, in those jurisdictions which allow one spouse to be subjected to examination by the
adverse party as a hostile witness when both spouses are parties to the action, either the
interests of the spouses are separate or separable, or the spouse offered as a witness is
merely a formal or nominal party.13
The final point urged upon us is that to prevent one spouse from testifying would encourage
alliance of husband and wife as an instrument of fraud; for then what better way would there
be to prevent discovery than to make a co-conspirator in fraud immune to the most
convenient mode of discovery available to the opposite party? This argument overlooks the
fact that section 6 of Rule 132 is a mere concession, for the sake of discovery, from the rule
which precludes the husband or the wife from becoming the means of the other's
condemnation. The said rule of discovery should therefore not be expanded in meaning or
scope as to allow examination of one's spouse in a situation where this natural repugnance
obtains.
It may not be amiss to state in passing that the respondent Dineros has not demonstrated
that there is no evidence available to him other than the Lezamas' testimony to prove the
charge recited in the complaint.1wph1.t
ACCORDINGLY, the resolutions appealed from are versed, and this case is ordered remanded
to the court of origin for further proceedings in accordance with law. No costs.
JOSE GUERRERO, MARIA GUERRERO, MAGDALENA GUERRERO ESPIRITU, assisted
by her husband CANDIDO ESPIRITU, GREGORIO GUERRERO, CLARA GUERRERO, Et
Al., Petitioner, v. ST. CLARES REALTY CO., LTD., GUILLERMO T. GUERRERO, CECILIA
GUERRERO, assisted by ANGELO CARDEO, PERLINDA GUERRERO, etc., Et Al.,
Respondents.
Romeo J. Callejo, for Petitioners.
Poblador, Nazareno, Azada, Tomacruz & Paredez Law Offices for respondent United Housing
Corp.
Neptali Gonzales & Associates for respondent Guerreros.

F.B. Santiago & Associates for respondent St. Clares Realty Co., Ltd.
SYLLABUS
1.
REMEDIAL LAW; EVIDENCE; WITNESSES; INCOMPETENCY UNDER SEC. 20(a), RULE
130, RULES OF COURT, CONSTRUED. The plain truth is that Laura Cervantes and Jose
Cervantes are not parties in the present case, and neither are they assignors of the parties
nor "persons in whose behalf a case is prosecuted." They are mere witnesses by whose
testimonies the plaintiffs aimed to establish that it was not Cristina Guerrero, but Andres
Guerrero, who owned the disputed land at the time of its alleged sale to Manuel Guerrero;
that Cristina Guerrero did not really sell but merely mortgaged the property to Manuel
Guerrero. It may be said that competency to testify established in Sec. 20(a), Rule 130,
Rules of Court, affects only the persons therein mentioned, and no others, that is, only
parties plaintiff or their assignors, persons in whose behalf a case is prosecuted. Mere
witnesses who are neither parties plaintiff, nor their assignors, nor persons in whose behalf a
case is prosecuted, are not included in the prohibition. (Moran, Comments on the Rules of
Court, 1970 ed., Vol. 5, p. 166) By excluding the testimonies of the two witnesses and by
barring them from further testifying, upon reasoning that unduly strained the meaning of the
provisions of the Rules of Court relied upon, the trial court deprived itself of the opportunity
of knowing the truth in this case.
2.
ID.; ID.; ID.; DEAD MANS RULE; INAPPLICABLE IN THE CASE AT BAR. The present
case is not a claim or demand against the estate of the deceased Manuel Guerrero. The
defendants Guerreros are not the executors or administrators or representatives of such
deceased. They are being sued as claimants of ownership in their individual capacities of the
disputed lot. The lot is not a part of the estate of Manuel Guerrero. Hence, the inapplicability
of dead mans rule. "It has been held that statutes providing that a party in interest is
incompetent to testify where the adverse party is dead or insane, must be applied strictly in
accordance with their express wording, irrespective of their spirit. The law uses the word
against an executor or administrator or other representative of a deceased person. It
should be noted that after the mention of an executor or administrator the words or other
representative follows, which means that the word representative includes only those who,
like the executor or administrator, are sued in their representative, not personal, capacity.
And that is emphasized by the law by using the words against the estate of such deceased
persons, which convey the idea of an estate actually owned by the deceased at the time the
case was brought and that, therefore, it is only his rights that are to be asserted and
defendant in the litigation by the person representing him, not the personal rights of such
representative." (Moran, ibid., pp. 169-171)
3.
ID.; ID.; IMPROVIDENT EXCLUSION AND PRECLUSION FROM PRESENTING FURTHER
PROOF; CASE AT BAR. Prior to the issuance of the courts order of June 14, 1974, by which
the plaintiffs were "deemed to have waived their right to further present or formally offer
their evidence," the following had testified as witnesses of the plaintiffs, namely: Alfredo
Zamora, Roman Mataverde, Moises Javillionar, Dominador Ramirez, Bonifacio Sumulong,
Frisco Cervantes, Laura Cervantes and Jose Cervantes. It was error to hold that the
testimonial evidence should have been formally offered, or that without such offer, such
evidence was waived. The offer of testimonial evidence is effected by calling the witness to
the stand and letting him testify before the court upon appropriate questions. (Moran,
Comments on the Revised Rules of Court, Vol. 6, 1970 ed., p. 122)
4.
ID.; JUDGMENT RENDERED SOLELY ON THE BASIS OF DEFENDANTS EVIDENCE
DISREGARDING THAT OF THE PLAINTIFFS; REMAND TO TRIAL COURT PROPER RECOURSE.
The trial court rendered its decision solely on the basis of the defendants evidence and

without regard to the proofs that the plaintiffs had presented on July 17, 1974 before the
Court of Appeals could finally resolve plaintiffs petition to disqualify the trial judge. As
modified by the Court of Appeals, the decision sentences the plaintiffs to pay damages and
attorneys feet, apart from the costs of suit, in the staggering amount of Two Million One
Hundred Eighty Three Thousand and Five Hundred (P12,183,500.00) Pesos, without plaintiffs
having been gives, the chance to complete their evidence, to cross-examine the witnesses
of the defense, and to present rebuttal evidence. The way the trial court and the Court of
Appeals proceeded in this case, litigation became more a game of technicalities than a
proceeding to search the truth and mete justice. No other fairer course of action is
demanded but for this Court to remand the case for further proceedings.
DECISION
VASQUEZ, J.:
In their petition for review by certiorari, petitioners are seeking a reversal of the decision of
the former Court of Appeals (now the Intermediate Appellate Court) dated April 30, 1981 in
CA-G.R No. 57597-R, and its resolution dated September 3, 1981 which denied the
petitioners motion for reconsideration thereof. Our resolution of May 25, 1981 gave due
course to the petition.
The action initiated by the petitioners in the Court of First Instance of Rizal prayed for a
judgment:jgc:chanrobles.com.ph
"1.
Declaring the in existence of the Deed of Sale of Lands, Annex A hereof, and Deeds
of Absolute Sale, Annexes B and C, as well as the Original Certificate of Title No. 4591 and
Transfer Certificates of Title Nos. 339629 and 340842 of the Registry of Deeds, null and void;
2.
Declaring the plaintiffs (now petitioners) the owners in fee simple of the
aforedescribed property, pro-indiviso;
3.
Ordering the private defendants (now private respondents) to reconvey to the
plaintiffs the aforedescribed lot;
4.
Declaring the Joint Venture Agreement executed by the defendant partnership and
the defendant corporation null and void and ineffective insofar as the plaintiffs are
concerned;
5.
Ordering the defendant Register of Deeds of Rizal to issue a new transfer certificate
of title in favor of the plaintiffs over the said lot;
6.
Condemning the defendants, except the defendant Register of Deeds, to pay the
plaintiffs, actual and exemplary damages, the amounts of which they will prove during the
hearing of the instant case on the merit;
7.
Condemning the defendants, except the defendant Register of Deeds, to pay to the
plaintiffs attorneys fees in the amount of P5,000.00; plus costs of suit." (Printed Record on
Appeal, pp. 116-118.)
Petitioners original and amended complaints alleged that during their lifetime the spouses
Isidoro Guerrero and Panay Ramos were the absolute owners of the disputed property, which
is a parcel of land located at San Dionisio, Paraaque, Rizal, with an area of 42,299 square

meters, more or less. The spouses had six children, named Andres, Juliana, Aurelio, Leona,
Jose and Cristina, and all surnamed Guerrero. Panay Ramos predeceased Isidoro Guerrero.
Before his demise, Isidoro Guerrero verbally willed and ordained that the questioned lot be
assigned and adjudicated to Andres Guerrero as his share in the inheritance, the other
children having been assigned other lots. Accordingly, upon the death of Isidoro Guerrero,
Andres Guerrero physically possessed the lot and cultivated it through his tenant Dominador
Ramirez, who earned a 50% share in the net produce, the other 50% being retained by
Andres Guerrero who defrayed the cultivation expenses and real estate taxes on the
property. Shortly after the beginning of the Japanese occupation, Andres Guerrero entrusted
the land to his sister, Cristina Guerrero, and allowed her to have the property cultivated and
to retain the owners share in the harvests. The arrangement between brother and sister
was that Cristina Guerrero could continue in the cultivation of the land and enjoyment of the
owners share in the produce for as long as she needed the property. Dominador Ramirez
continued his tenancy until shortly before the death of Andres Guerrero. Sometime in July
1943, Andres Guerrero died survived by his widow, Segunda Laquindanum, and their
children, who are the petitioners in this case. Cristina Guerrero continued as trustee of the
deceased Andres Guerrero.chanrobles virtual lawlibrary
The complaints further alleged that as early as December 10, 1957, the land was surveyed
by the Bureau of Lands for and in the name of Andres Guerrero as Lot No. 4752, Case No. 4,
Cadastre No. 229 of the Paraaque Cadastre. Sometime during the latter part of 1971
certain people who introduced themselves as agents or buyers of the land approached some
of the plaintiffs in order to secure their consent to the sale of the property. Said plaintiffs
were informed that the land was titled in the name of their cousin, Manuel Guerrero.
Plaintiffs made inquiries and discovered the following: that Manuel Guerrero was able to
have the lot titled in his name on the basis of a Deed of Sale of Land dated April 24, 1948
purportedly executed by Cristina Guerrero; that he caused the lot to be surveyed in his
name as Lot No. 4752 and he was issued advance Plan No. AP-10008 on February 28, 1962;
that in the advance plan issued to him, it was duly noted that Lot No. 4752 had been
previously surveyed for Andres Guerrero; that in 1963, Manuel Guerrero, assisted by
Felicisimo Guerrero, father of the defendants Guerreros, filed an application for registration
of land with the Court of First Instance of Rizal; that notwithstanding the opposition of the
heirs of Cristina Guerrero, the court ruled that Manuel Guerrero owned the lot; that despite
oppositors appeal to a higher court, the Register of Deeds issued Original Certificate of Title
No. 4591 to the applicant; that on September 14, 1971, there was filed with the Register of
Deeds of Rizal a "Deed of Absolute Sale" purportedly executed by Manuel Guerrero in favor
of the defendants Guerreros; that the Register of Deeds gave due course to the registration
of that deed, cancelled OCT No. 4591 and was issued Transfer Certificate No. 339629 in its
stead; that on the same day that the deed of sale was registered, the defendants Guerreros
caused to be notarized an "Articles of Partnership" of St. Clares Realty Company, Ltd.,
constituting themselves as partners; that on September 28, 1971, the defendants Guerreros
sold the disputed lot in a "Deed of Absolute Sale" to the St. Clares Realty Company, Ltd.;
that by virtue thereof, the Register of Deeds issued TCT No. 340842 in the name of said
realty company.
According to the original and amended complaints, the Deed of Sale in favor of Manuel
Guerrero was fraudulent, simulated and falsified for the reason, among others, that Cristina
Guerrero was not the owner of the land at the time she purportedly sold it; that Manuel
Guerrero obtained OCT No. 4591 in fraud of the plaintiffs; that the Deeds of Sale to the
defendants Guerreros and St. Clares Realty Company, Ltd. and the transfer certificates of
title in their favor are fraudulent and simulated, and ineffective against the plaintiffs for the
reason, among others, that at the time of execution of the Deeds of Sale, the defendants
Guerreros knew that the property belonged to Andres Guerrero; that long after the complaint
in the present case has been filed, the plaintiffs came to know that the St. Clares Realty
Company, Ltd. executed a "Joint Venture Agreement" with the United Housing Corporation

under which the latter bound itself to develop the property into a residential subdivision; and
that the said agreement was entered into in gross and evident bad faith.
Separate answers were filed by the defendants Guerreros, St. Clares Realty Company, Ltd.
and United Housing Corporation. The defendants Guerreros alleged that Cristina Guerrero
was the absolute owner of the property; that the action of the plaintiffs had prescribed and
they are guilty of laches. St. Clare s Realty Company, Ltd. averred that its contract with
United Housing Corporation was made in good faith. United Housing Corporation averred
that there is no privity of interest between plaintiffs and this defendant considering that the
plaintiffs are not parties to the Joint Venture Agreement.
Issues having been joined, the case proceeded to trial.
Frisco Cervantes, grandson of Cristina Guerrero, testified as a witness of the plaintiffs that
having had previous information that the disputed lot was borrowed from Andres Guerrero
and that Cristina Guerrero merely mortgaged it to Manuel Guerrero, he went to the house of
Manuel Guerrero in Barrio San Dionisio, Paraaque, Rizal, in 1968 at the behest of the
plaintiffs, to inquire about the mortgage; that in reply, Manuel Guerrero stated that the land
had been sold but it would be changed with another lot of the same area; that in 1970,
Sotero Cervantes and Laura Cervantes, children of Cristina Guerrero, and he went to see
Manuel Guerrero at the Sta. Rita Church in Paraaque; that Sotero and Laura asked if they
could get the land back, that Manuel Guerrero answered that it were better to change the
disputed lot with another parcel of the same area and value; that as he was not satisfied
with the answer, Frisco Cervantes went to the Office of the Register of Deeds in Pasig, Rizal,
where he obtained a copy of a Deed of Sale in favor of Manuel Guerrero which he delivered
to the children of Andres Guerrero.chanroblesvirtualawlibrary
Roman Mataverde, Chief Geodetic Engineer of the Bureau of Lands designated as Officer-InCharge of the Surveys Division, testified for the plaintiffs that in the Bureaus Lot Data
Computation Book showing the list of claimants for Lot 4752, Case 4, Cadastre 299,
Paraaque, Rizal, (Exhibit A), which was surveyed on December 10, 1957, Andres Guerrero is
listed as claimant. The records of the Bureau of Lands from 1957 (when Lot 4752 was
cadastrally surveyed for Andres Guerrero) until 1962 show no claimant to the property
except Andres Guerrero. In 1962, the Bureau of lands received a letter with an affidavit
attached to it from Manuel Guerrero requesting that an advance plan be made. Advance
Plan No. 10008 was made without Andres Guerrero being notified. But in the advance plan,
the Bureau of Lands listed Andres Guerrero as original claimant so that he would not be
prejudiced when a case comes to trial.
Dominador Ramirez testified that during the rainy season of 1936, Andres Guerrero asked
him to work on his land located at Barrio San Dionisio, Paraaque, Rizal, with an area of four
(4) hectares, more or less. As tenant, his agreement with Andres Guerrero was that he would
till the land in consideration of 50% of the harvests with Andres Guerrero shouldering the
cultivation expenses. From 1936 to about 1941 or 1942, he worked on the land and gave
50% of the produce to Andres Guerrero who went personally to the field to get the same. In
1941 or 1942, he stopped working on the land because war had broken out.
On October 19, 1973, Laura Cervantes testified that her mother, Cristina Guerrero, had been
sick for a long time before she died at the age of 80 years in 1948; and that her mother
could walk only inside their house in Paraaque; that the money spent for the illness of her
mother came from Manuel Guerrero; and that, through her children, Cristina Guerrero could
ask money from Manuel Guerrero because of the land that Andres Guerrero had lent to her.
After Laura Cervantes had thus testified, counsel for the defendants Guerreros objected to
the line of questioning on the ground that the said witness was testifying "on matters which

are prohibited under Sec. 20(a), Rule 130, of the Rules of Court." The trial court having ruled
that the witness "may answer", defendants counsel registered a continuing objection. The
court allowed the witness to continue her testimony subject to such objection. (TSN, pp. 920, October 19, 1973.)
Resuming her testimony, Laura Cervantes stated that the land was lent by Andres Guerrero
to Cristina Guerrero; that Manuel Guerrero loaned money to Cristina Guerrero for quite some
time; that shortly after the death of Cristina Guerrero, Manuel Guerrero went to their house,
accompanied by Felicisimo Guerrero, and summed up the loans he had extended to Cristina
Guerrero in the total amount of P1,900.00; and that Felicisimo Guerrero asked Laura
Cervantes to sign a piece of paper to attest to the fact that a certain amount of money had
been borrowed from Manuel Guerrero.cralawnad
On October 24, 1973, the defendants Guerreros filed a written motion to disqualify Laura
Cervantes as a witness on the basis of Section 20(a), Rule 130, of the New Rules of Court.
The motion was opposed by the plaintiffs. On November 16, 1973, the trial court granted the
motion and declared that Laura Cervantes, Jose Cervantes as well as other witnesses
similarly situated, are disqualified to testify in the case.
On February 12, 1974, plaintiffs filed a "Motion For The Honorable Presiding Judge Of This
Honorable Court To Inhibit Himself And/Or To Transfer Case To Another Branch." Oppositions
to the said motion were filed. On April 26, 1974, the trial court denied the motion.
At the continuation of the trial on June 14, 1974, plaintiffs and their counsel failed to appear
despite due notice and repeated previous warnings to their lawyer. Instead of appearing in
court, plaintiffs, thru counsel, filed an urgent motion to reset the hearing, which was
opposed by the defendants. On even date, the court issued an order as
follows:jgc:chanrobles.com.ph
"In view of the non-appearance of the plaintiffs as well as their counsel for todays hearing,
they are deemed to have waived their right to further present or formally offer their
evidence in court, and on motion of defendants counsels, the Clerk of Court, Atty. Juan A.
Carambas, is hereby authorized and commissioned to receive the evidence for the
defendants. After the defendants have closed their case, they are given 10 days within
which to file their respective memoranda and the case is deemed submitted for decision
after receipt of the complete transcript of stenographic notes." (Record on Appeal, p. 212.)
On June 22, 1974, plaintiffs filed a "Manifestation" to the effect that they did not waive their
rights to present further evidence, to cross-examine defendants witnesses, and to present
rebuttal evidence; and that they were reserving the exercise of those rights upon the finality
of the decision of the Court of Appeals in a petition for certiorari, prohibition and mandamus
against the Presiding Judge of the trial court, which they were then preparing to file.
Indeed, on June 25, 1974, plaintiffs instituted the said special civil action, which was
docketed in the Court of Appeals as its CA-G.R. No. SF-03120. The action sought the
disqualification of the trial judge from continuing with the hearing of the case. On June 27,
1974, the Court of Appeals denied the petition outright. Copy of the resolution was received
by the plaintiffs on July 2, 1974. They filed a motion for reconsideration on July 17, 1974.
On the same date, July 17, 1974, the trial court rendered its decision with the following
dispositive part:jgc:chanrobles.com.ph
"WHEREFORE, judgment is hereby rendered in favor of the defendants (and) against the
plaintiffs:chanrob1es virtual 1aw library

1.

Dismissing the complaint and Amended Complaint;

2.
Ordering the plaintiffs to pay the private defendant Guerreros the amount of
P20,000.00 for actual damages, P500,000.00 for moral damages and P10,000.00 as
attorneys fees;
3.
Ordering the plaintiffs to pay the defendant St. Clares Realty Co. Ltd., the amount of
P1,923,000.00 as actual damages, P50,000.00 as exemplary damages and P5,000.00 as
attorneys fees;
4.
Ordering the plaintiffs to pay the defendant United Housing Corporation the amount
of P90,500.00 as actual damages; P100,000.00 for loss of goodwill and business reputation,
P80,000.00 as exemplary damages, P15,000.00 as lawyers fees; and
5.

To pay the cost of suit.

The Register of Deeds of Rizal is hereby directed to cancel the Lis Pendens in Transfer
Certificate of Title No. 340842 in the name of the St. Clares Realty Co., Ltd., Book T-1971.
Meanwhile, the defendant United Housing Corporation is ordered to proceed and continue
with its commitments under the Memorandum Agreement dated October 12, 1971." (Record
on Appeal, pp. 259-261.)cralawnad
On July 20, 1974, or three (3) days before plaintiffs received the decision, they filed with the
trial court a "Motion Ex-Abundantia Cautela" praying that should the Court of Appeals render
an adverse resolution in CA-G.R. No. SF-03120, the lower court should set aside its order of
June 14, 1974 and allow plaintiffs to present other evidence, cross-examine witnesses of the
defendants, and present rebuttal evidence.
On August 21, 1974, plaintiffs filed a motion for reconsideration of the decision which they
received on July 23, 1974.
Early in 1975, Judge Arsenio Alcantara who rendered the decision was replaced by Judge
Floreliana Castro-Bartolome. In her order of February 13, 1975, Judge Castro-Bartolome
resolved that:jgc:chanrobles.com.ph
"1)
The plaintiffs Motion Ex-Abundantia Cautela dated July 18, 1974, having been
passed upon by Judge Arsenio B. Alcantara by the rendition of the Decision dated July 17,
1974, is deemed to have been clearly denied by the Honorable Judge who penned the said
decision;
2)
The plaintiffs Motion for Reconsideration dated August 21, 1974 and Supplemental
Motion for Reconsideration dated August 22, 1974, have to be as they are hereby, denied;
x

5)
The plaintiffs Motion for Reconsideration and Supplemental Motion for
Reconsideration are not pro-forma and have suspended the running of the period of
appeal."cralaw virtua1aw library
On February 21, 1975, plaintiffs perfected their appeal to the Court of Appeals where the
case was docketed as CA-G.R. No. 57597-R. On April 20, 1981, the Court of Appeals rendered
its decision as follows:jgc:chanrobles.com.ph

"WHEREFORE, all the foregoing considered, the decision appealed from is hereby affirmed,
with modification in regard to damages as follows: (a) for the defendants Guerreros,
P50,000.00 moral damages, and P10,000.00 exemplary damages; (b) for the defendant St.
Clares Realty Co., Ltd., P10,000.00 exemplary damages; (c) for the defendant United
Housing Corporation, P40,000.00 for loss of goodwill and business reputation and
P10,000.00 exemplary damages. The actual damages and attorneys fees are hereby
maintained."cralaw virtua1aw library
On May 27, 1981, the Court of Appeals denied plaintiffs motion for reconsideration.
Hence, the present petition for review by certiorari.
In their instant petition for review, petitioners have raised substantive and procedural points
on which the lower tribunals have allegedly erred. The substantive issues refer to the lack of
basis for the grant of actual, moral and exemplary damages in the huge amount of over two
million pesos; and the error of ruling that the action was barred by prescription and laches.
Petitioners underscore the procedural errors they attribute to the lower courts which resulted
in the deprivation of their full opportunity to ventilate their case and prove the validity of
their claim. They assail the ruling that their witnesses Laura Cervantes, Jose Cervantes "and
others similarly situated" are disqualified to testify; and that they waived the right to present
their evidence when they failed to appear at a hearing set by the trial judge during the
pendency of proceedings taken by the petitioners to disqualify him due to alleged hostility
manifested by the latter towards the petitioners.chanroblesvirtualawlibrary
At this instance, We consider it unnecessary to discuss the substantive merits of the
petitioners cause of action. The record reveals that they have not yet completed the
presentation of their evidence. Whatever evidence they had previously presented were
apparently not considered in the rendition of the questioned decisions for not having been
"formally offered." It does not strike Us as fair and just that the petitioners would be made
answerable for damages in such a huge amount for having filed an allegedly baseless and
unfounded action without affording them the full opportunity of establishing the merit of
their claim. On the face of the record, We are convinced that they had been denied that
chance due to some mistaken and capricious application of pertinent procedural rules.
The first question of importance that engages the attention of this Court is whether or not
the witnesses Laura Cervantes and Jose Cervantes were correctly disqualified from testifying
in the case and their testimonies excluded on the basis of Section 20(a), Rule 130, of the
Rules of Court, which provides as follows:jgc:chanrobles.com.ph
"Section 20. Disqualification by reason of interest or relationship. The following persons
cannot testify as to matters in which they are interested, directly or indirectly as herein
enumerated:chanrob1es virtual 1aw library
(a)
Parties or assignors of parties to a case, or persons in whose behalf a case is
prosecuted, against an executor or administrator or other representative of a deceased
person, or against a person of unsound mind, upon a claim or demand against the estate of
such deceased person or against such person of unsound mind, cannot testify as to any
matter of fact occurring before the death of such deceased person or before such became of
unsound mind."cralaw virtua1aw library
Upon the facts and under the law, this Court is fully persuaded that the affirmative rulings of
both the trial court and the Court of Appeals were made in error. The plain truth is that Laura
Cervantes and Jose Cervantes are not parties in the present case, and neither are they
assignors of the parties nor "persons in whose behalf a case is prosecuted." They are mere
witnesses by whose testimonies the plaintiffs aimed to establish that it was not Cristina

Guerrero, but Andres Guerrero, who owned the disputed land at the time of its alleged sale
to Manuel Guerrero; that Cristina Guerrero did not really sell but merely mortgaged the
property to Manuel Guerrero.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
"Following this rule of construction, it may be said that incompetency to testify established
in the provision above quoted, affects only the persons therein mentioned, and no others,
that is, only parties plaintiff or their assignors, persons in whose behalf a case is prosecuted.
Mere witnesses who are neither parties plaintiff, nor their assignors, nor persons in whose
behalf a case is prosecuted, are not included in the prohibition." (Moran, Comments on the
Rules of Court, 1970 ed., Vol. 5, p. 166.)
By excluding the testimonies of the two witnesses and by barring them from further
testifying, upon reasoning that unduly strained the meaning of the provisions of the Rules of
Court relied upon, the trial court deprived itself of the opportunity of knowing the truth in
this case.
Moreover, the present case is not a claim or demand against the estate of the deceased
Manuel Guerrero. The defendants Guerreros are not the executors or administrators or
representatives of such deceased. They are being sued as claimants of ownership in their
individual capacities of the disputed lot. The lot is not a part of the estate of Manuel
Guerrero. Hence, the inapplicability of the dead mans rule.
"It has been held that statutes providing that a party in interest is incompetent to testify
where the adverse party is dead or insane, must be applied strictly in accordance with their
express wording, irrespective of their spirit. The law uses the word against an executor or
administrator or other representative of a deceased person. It should be noted that after
the mention of an executor or administrator the words or other representative follows, which
means that the word representative includes only those who, like the executor or
administrator, are sued in their representative, not personal, capacity. And that is
emphasized by the law by using the words against the estate of such deceased persons,
which convey the idea of an estate actually owned by the deceased at the time the case was
brought and that, therefore, it is only his rights that are to be asserted and defendant in the
litigation by the person representing him, not the personal rights of such representative."
(Moran, ibid, pp. 169-171.)
The next question that requires attention is whether or not the exclusion of plaintiffs
evidence and their preclusion from presenting further proof was correctly sustained by the
respondent Court of appeals. Prior to the issuance of the courts order of June 14, 1974, by
which the plaintiffs were "deemed to have waived their right to further present or formally
offer their evidence", the following had testified as witnesses of the plaintiffs, namely:
Alfredo Zamora, Roman Mataverde, Moises Javillonar, Dominador Ramirez, Bonifacio
Sumulong, Frisco Cervantes, Laura Cervantes and Jose Cervantes. It was error to hold that
the testimonial evidence should have been formally offered, or that without such offer, such
evidence was waived. The offer of testimonial evidence is effected by calling the witness to
the stand and letting him testify before the court upon appropriate questions. (Moran,
Comments on the Revised Rules of Court, Vol. 6, 1970 ed., p. 122.)chanrobles virtual
lawlibrary
Notwithstanding rigid cross-examination conducted by the lawyers of the defendants, the
witnesses discovered the following facts: In the 1930s Andres Guerrero physically possessed
the disputed lot, paid the real estate taxes for it, had the same cultivated through a tenant,
defrayed the cultivation expenses, and exclusively enjoyed the owners share in the
harvests. Andres Guerrero loaned the lot to his sister, Cristina Guerrero, before he died.
Cristina Guerrero became ill prior to the year 1948. She could walk only inside her house in
Paraaque, Rizal. The money spent for her illness was borrowed from Manuel Guerrero. After

the death of Cristina Guerrero, Manuel Guerrero and Felicisimo Guerrero came to her house
and the money loaned to her was totalled in the amount of P1,900.00. On December 10,
1957, the questioned lot was cadastrally surveyed and denominated as Lot 4752 of the
Paraaque Cadastre. Andres Guerrero was the lone claimant. Until 1962, no other person
claimed the lot.
The foregoing proofs bear materially on the questions raised by the plaintiffs as to whether
or not: (1) Cristina Guerrero or Andres Guerrero owned the lot when the former purportedly
sold it to Manuel Guerrero in 1948; (2) Cristina Guerrero really sold or merely mortgaged the
land to Manuel Guerrero; (3) Manuel Guerrero and, after him, the defendants Guerreros were
buyers in good faith. Instead of insulating itself from evidence that could lead it to the truth,
the trial court should have addressed itself to the questions why: (1) if it is true that Cristina
Guerrero was the owner of the disputed lot in 1948, the cadastral surveyors who actually
repaired to the field listed Andres Guerrero as the sole claimant of the property, (2) until
1962, no other person except Andres Guerrero claimed the lot as his own; (3)
notwithstanding the purported deed of sale by Cristina Guerrero to Manuel Guerrero was
executed on April 24, 1948, it was presented for registration with the Register of Deeds
almost ten (10) years later only on February 27, 1958 (TSN, p. 15, January 9, 1974); (4) in
the deed of sale to Manuel Guerrero, it is stated that he appeared in Paraaque, Rizal, before
Atty. Jose D. Villena who was a notary public in Makati, Rizal; (5) the area of the land bought
by Manuel Guerrero was 33,090 square meters whereas the area of the land sold by him to
the defendants Guerreros was 42,299 square meters. The court also ought rather to have
noticed the fact that in the deed of sale in favor of Manuel Guerrero, it is stated that the
subject parcel of land "is surrounded by muddikes besides the stone monuments that visibly
marked all its "boundaries", which clearly indicate a previous survey and which may in turn
lead to the question if the deed of sale to Manuel Guerrero might have been made after the
cadastral survey in 1957 and not in 1948.
The trial court rendered its decision solely on the basis of the defendants evidence and
without regard to the proofs that the plaintiffs had presented on July 17, 1974 before the
Court of Appeals could finally resolve plaintiffs petition to disqualify the trial judge. As
modified by the Court of Appeals, the decision sentences the plaintiffs to pay damages and
attorneys fees, apart from the costs of suit, in the staggering amount of Two Million One
Hundred Eighty Three Thousand and Five Hundred (P2,183,500.00) Pesos, without plaintiffs
having been given the chance to complete their evidence, to cross-examine the witnesses of
the defense, and to present rebuttal evidence. The way the trial court and the Court of
Appeals proceeded in this case, litigation became more a game of technicalities than a
proceeding to search the truth and mete justice. No other fairer course of action is
demanded but for this Court to remand the case for further proceedings.chanrobles.com.ph :
virtual law library
WHEREFORE, the decision of the respondent Court of Appeals is hereby set aside. Let the
records of the case be remanded to the court of origin with instruction to the trial court to
allow the plaintiffs to complete their evidence, to cross-examine the defendants witnesses,
and to present rebuttal evidence if they so desire, and thereafter to decide the case anew.
SO ORDERED.

FLORENCIA Q. DE ABRAHAM, ALFONSO ABRAHAM, and JESUS ABRAHAM,

petitioners,
vs.
INTESTATE ESTATE OF JUAN C. YSMAEL, PRISCILLA RECTO-KASTEN, respondent.
Menandro Quiogue for petitioners.
Jose Ma. Recto and Paterno R. Canlas for respondent.
DE LEON, J.:
This is a petition to review on certiorari the decision of the Court of Appeals in CA-G.R. No.
21222-R.
The facts as shown by the record are as follows: On September 3, 1943, Juan C. Ysmael,
obtained a loan from Alfonso Abraham, Sr. in the amount of P12,500.00 in Japanese currency
notes, and executed a promissory note in favor of the latter promising to pay the loan within
90 days with interest at the rate of 10% per annum. The note was executed in the presence
of Florencia Q. Abraham, the creditor's wife, who affixed her signature at the bottom thereof
as a witness thereto. Upon the maturity of the note, a demand was made for its payment,
but the debtor failed to pay.
On February 9, 1945, Alfonso Abraham, Sr. died. On the other hand, Juan C. Ysmael died
intestate on April 23, 1952 leaving the note still unpaid.
On November 13, 1954, in Special Proceedings No. Q-285 for the settlement of the intestate
estate of Juan Ysmael, pending before the Court of First Instance of Quezon City, Florencia Q.
Vda. de Abraham, together with her sons, Alfonso and Jesus, all surnamed Abraham, filed a
pleading entitled "Reclamation" demanding payment of the amount represented by the
note. Because no regular administrator of the estate had yet been appointed by the court,
the "Reclamation" was not acted upon. However, as soon as Priscilla Recto-Kasten was
appointed administratrix, the claimants reproduced their "Reclamation" before the lower
court and the same was finally set for hearing. As agreed upon by the parties, the reception
of evidence was delegated to a commissioner. During the hearing before the commissioner,
the counsel for the administratrix interposed a general and continuing objection to the
testimony of Florencia Vda. de Abraham invoking the provisions of Section 26(c), Rule 123 of
the Rules of Court. However, after the claimant had testified, he lengthily cross-examined
her on the very matters against which he interposed a general objection.1wph1.t
On October 4, 1956, the lower court issued in Order-Decree allowing the claim against the
intestate estate of Juan C. Ysmael, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court rules that the claimants
established a just and valid claim against the estate of Juan C. Ysmael, and therefore the
"reclamation" under consideration is hereby APPROVED.
The administratrix is hereby ordered to pay the claimants herein the amount of P5,000.00
with interest thereon at 10% per annum, in accordance with the Ballantyne Scale of Value
for the year December, 1943, out of the funds of the estate in the course of her
administration.
SO ORDERED.
From the above Order-Decree, Priscilla Recto-Kasten, the administratrix, appealed to the
Court of Appeals. The appellate court concluding that "the lower court erred in finding that

the claimants have established a just and valid claim, and in allowing the claim supposing
it was a claim with consideration when the same had been barred by prescription,
estoppel and laches," reversed the Order-Decree appealed from. Hence, this petition for
review brought by the claimants.
The main issue in this petition is whether or not petitioners have established a just and valid
claim. And if the answer is in the affirmative, whether the same is already barred by
prescription and laches.
The record shows that petitioners have established the due execution and genuineness of
the promissory note and that respondents failed to present any evidence to destroy the
same. Thus in the Order-Decree appealed from, the lower court observed:.
It is interesting to note that the promissory note executed by the deceased was produced
before the Court and marked as Exhibit B-1, and the circumstances under which the same
was executed was extensively described by Florencia Q. de Abraham during the hearing,
who, strikingly is one of the witnesses to the said instrument. Much to the surprise of the
Court this description was more vividly given by the said witness not in answer to the
questions propounded by her lawyer but on cross-examination of counsel for the
administratrix, who feebly attempted to destroy the due execution and genuineness of the
said document. It is indeed unfortunate that counsel for the administratrix did not choose to
present evidence to destroy the alleged genuineness of the promissory note (Exhibit B-1) in
support of his theory, despite his insinuation during the course of the trial that he might try
to secure the services of an expert to determine the genuineness of the signature of the late
Juan C. Ysmael mentioned therein. (t.s.n., p. 83), Again counsel manifested that if Exhibit B-1
is a genuine document the same has been fully paid already, (t.s.n., p. 83), however,
counsel did not present any proof to support this contention.
It is true that Section 26(c), Rule 123 of the Rules of Court provides:.
(c) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted,
against an executor administrator or other representative of a deceased person, or against
such person of unsound mind, cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound mind;
However, there was a waiver of the prohibition when the counsel for the administratrix
extensively cross-examined the witness on the very matters subject of the prohibition.
(Wright v. Tinio, G.R. No. L-4004, May 29, 1952; see also Tongco v. Vianzon, 50 Phil. 698;
Macfarlane v. Green, 54 Phil. 551) It was for this reason that the trial judge eventually
overruled the counsel's previous general and continuing objection and admitted the
testimony of the witness. Furthermore, it is difficult to believe that the counsel's lengthy
cross-examination on the prohibited matter was merely for the purpose of establishing the
"motive, prejudices and predilection" of the witness. In this connection, it has been said: .
... . The reason for the rule apparently is that a litigant cannot be permitted to speculate as
to what his examination of a witness may bring forth. Having made his selection of one of
two courses which he may pursue, he has no right, after he discovers that the course
selected is not to his advantage, and after he has put the opposite party to the expense, and
has consumed the time of the courts in a trial of the case in accordance with the course
selected, to change his position and make another and different selection. Such course
would be unfair both to the opposite party and to the court and should not be countenanced
in any court of justice. (IV Francisco, RULES OF COURT, 876, 877, citing the case of
Comstock's Adm'r vs. Jacob, 89 VT. 133, 94 A. 497, Ann. Cas. 1918A, 465)

The next issue is whether or not the claim is already barred by prescription and laches.
Under the New Civil Code, an action upon a written contract must be brought within 10
years from the time the right of action accrues. (Art. 1144, par. 1). In the case at bar, the
cause of action accrued on December 3, 1943 (the date when the note became due and
demandable) and petitioners filed their "reclamation" only on November 13, 1954.
Apparently, the action has already prescribed, because more than ten years had elapsed
before any suit was filed. However, it must be remembered that the provisions on
moratorium had the effect of suspending the statute of limitations from November 18, 1944
when Executive Order No. 25 was issued, to May 18, 1953, the date of promulgation of the
decision in the case of Rutter v. Esteban (G.R. No. L-3708) holding such provisions no longer
applicable (Rio y Compania v. Sandoval, G. R. No. L-9391, November 28, 1956; Compania
Maritima vs. Court of Appeals, G.R. No. L-14949, May 30, 1960). Thus, from December 3,
1943 to November 13, 1954, eleven years, eleven months and ten days have elapsed.
Deducting from this period eight years and six months, the time during which the statute of
limitations was suspended, it is clear that petitioners' claim has not yet prescribed when it
was filed on November 13, 1954.
Respondents, however, contend that Republic Act No. 342, which took effect on July 26,
1948, lifted the moratorium on debts contracted during the Japanese occupation. The
contention is untenable. This court has already held that Republic Act No. 342 did not lift the
moratorium on debts contracted during the war (Uy v. Kalaw Katigbak. G.R. No. L-1830, Dec.
31, 1949) but modified Executive Order No. 32 is to pre-war debts, making the protection
available only to debtors who had war damage claims (Sison v. Mirason, G.R. No. L-4711,
Oct. 31, 1952).
In order that the defense of laches may prosper, the following elements must be present: (1)
conduct on the part of defendant, or one under whom he claims, giving rise to the situation
complained of, (2) delay in asserting complainant's right after knowledge or notice of
defendant's conduct and an opportunity to sue, (3) lack of knowledge or notice on the part
of the defendant that complainant would assert the right on which he bases suit, and (4)
injury or prejudice to defendant in the event relief is accorded. (Villoria v. Secretary of
Agriculture and Natural Resources, G.R. No. L-11754, April 29, 1960) Assuming that the first
three elements are present, we do not see how the last element may exist, for neither injury
or prejudice to respondent may occur by the allowance of the claim. It should be
emphasized here that mere lapse of time during which there was neglect to enforce the right
is not the sole basis of the rule on laches, but also the changes of conditions which arise
during the period there has been neglect. When there are no changes of conditions
detrimental to the defendant, the defense of laches may not prosper.
IN VIEW OF THE FOREGOING, the decision of the Court of Appeals in CA-G.R. No. 21222-R is
hereby reversed and the Order-Decree dated October 4, 1956 of the Court of First Instance
of Quezon City in Special Proceedings No. Q-285 is hereby affirmed in all respects. Without
cost.

GENARO GOI, RUFINA P. vda. DE VILLANUEVA, VIOLA P. VILLANUEVA, OSCAR P.

VILLANUEVA, MARINA P. VILLANUEVA, VERNA P. VILLANUEVA, PRAXEDES P.
VILLANUEVA, JR., JOSE P. VILLANUEVA, SAMUEL P. VILLANUEVA, LOURDES P.
VILLANUEVA, MILAGROS P. VILLANUEVA DE ARRIETA, petitioners-appellants,
vs.
THE COURT OF APPEALS and GASPAR VICENTE, respondents-appellees.
Ambrosio Padilla Law Office for petitioners-appellants.
San Juan, Africa, Gonzales & San Agustin Law Office for respondents-appellees.

FERNAN, J.:
This is an appeal by certiorari from the decision of the then Court of Appeals in CA-G.R. No.
27800-R entitled, "Gaspar Vicente, Plaintiff-Appellant, vs. Genaro Goni, et. al., DefendantsAppellants" as well as from the resolution denying petitioners' motion for reconsideration.
The factual backdrop is as follows:
The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de Maria situated
in the Municipality of Bais, Negros Oriental, were originally owned by the Compania General
de Tabacos de Filipinas [TABACALERA]. Sometime in 1949, the late Praxedes T. Villanueva,
predecessor-in-interest of petitioners, negotiated with TABACALERA for the purchase of said
haciendas. However, as he did not have sufficient funds to pay the price, Villanueva with the
consent of TABACALERA, offered to sell Hacienda Sarria to one Santiago Villegas, who was
later substituted by Joaquin Villegas. Allegedly because TABACALERA did not agree to the
transaction between Villanueva and Villegas, without a guaranty private respondent Gaspar
Vicente stood as guarantor, for Villegas in favor of TABACALERA. The guarantee was
embodied in a document denominated as "Escritura de Traspaso de Cuenta." 1
Either because the amount realized from the transaction between Villanueva and Villegas
still fell short of the purchase price of the three haciendas, or in consideration of the
guaranty undertaken by private respondent Vicente, Villanueva contracted or promised to

sell to the latter fields nos. 3, 4 and 13 of Hacienda Dulce Nombre de Maria for the sum of
P13,807.00. This agreement was reduced to writing and signed by petitioner Genaro Goni as
attorney-in-fact of Villanueva, thus:
En consideracion a la garantia que Don Gaspar Vicente assume con la Cia. Gral. de Tabacos
de Filipinas por el saldo de Don Santiago Villegas de P43,539.75 asumido por Don Joaquin
Villegas el que Subscribe Praxedes T. Villanueva se compromete ceder es venta a Don
Gaspar Vicente los campos nos. 3, 4 y 13 del plano de porcelario de la Hacienda Dulce
Nombre de Maria, en compra projectada de la Cia. Gral. de Tabacos de Filipinas. Estas
campos representan 6-90-35 hectares por valor de P13,807.00 que Don Gasper Vicente
pagara directamente a Praxedes T. Villanueva
Bais Central, Octubre 24, 1949.
Fdo. Praxedes T. Villanueva
Por: Fdo Genaro Goi Apoderado 2
Private respondent Vicente thereafter advised TABACALERA to debit from his account the
amount of P13,807.00 as payment for the balance of the purchase price. However, as only
the amount of P12,460.24 was actually needed to complete the purchase price, only the
latter amount was debited from private respondent's account. The difference was
supposedly paid by private respondent to Villanueva, but as no receipt evidencing such
payment was presented in court, this fact was disputed by petitioners.
It is alleged by petitioners that subsequent to the execution of the contract/promise to sell,
Villanueva was able to raise funds by selling a property in Ayungon, Negros Oriental. He thus
went to private respondent Vicente for the purpose of rescinding the contract/promise to sell
However, as the amount of P12,460.24 had already been debited from private respondent's
account, it was agreed that lots 4 and 13 of the Hacienda Dulce Nombre de Maria would
merely be leased to private respondent Vicente for a period of five (5) years starting with
crop-year 1950-51 at an annual rental of 15% of the gross income, said rent to be deducted
from the money advanced by private respondent and any balance owing to Villanueva would
be delivered by Vicente together with the lots at the end of the stipulated period of lease.
On December 10, 1949, TABACALERA executed a formal deed of sale covering the three
haciendas in favor of Villanueva. Fields Nos. 3, 4 and 13 of the Hacienda Dulce Nombre de
Maria were thereafter registered in the name of Villanueva under TCT No. T-4780 of the
Register of Deeds of Negros Oriental. The fields were likewise mortgaged by Villanueva to
the Rehabilitation Finance Corporation (RFC), later transferred to the Philippine National
Bank on December 16, 1955, for a total indebtedness of
P334,400.00. 3
Meanwhile, Fields nos. 4 and 13 were delivered to private respondent Vicente after the 19491950 milling season in January and February, 1950.
On June 17, 1950, Villanueva executed a "Documento de la Venta Definitive" in favor of
Joaquin Villegas, covering Lot No. 314 of the Cadastral Survey of Bais with an area of
468,627 square meters, more or less. (Hacienda Sarria). A supplemental instrument was
later executed by Villanueva in favor of Villegas to include in the sale of June 17, 1950 the
sugar quota of the land.
On November 12, 1951, Villanueva died. Intestate proceedings were instituted on November
24, 1951 before the then Court of First Instance of Negros Oriental, docketed as Special Case
No. 777. Among the properties included in the inventory submitted to the court were fields

nos. 3, 4 and 13 of Hacienda Dulce Nombre de Maria. Field no. 13 with an area of 1 hectare,
44 ares and 95 centares was listed as Lot no. 723 of the inventory while fields nos. 3 and 4,
with areas of 3 hectares, 75 ares and 60 centares, and 1 hectare, 69 ares and 80 centares,
respectively, were included in Lot no. 257 of the inventory.
On October 7, 1954, the day before the intestate proceedings were ordered closed and the
estate of the late Praxedes Villanueva delivered to his heirs, private respondent Vicente
instituted an action for recovery of property and damages before the then Court of First
Instance of Negros Oriental against petitioner Goi in his capacity as administrator of the
intestate estate of Praxedes Villanueva. In his complaint docketed as Civil Case No. 2990,
private respondent Vicente sought to recover field no. 3 of the Hacienda Dulce Nombre de
Maria, basing his entitlement thereto on the contract/promise to sell executed by the late
Praxedes Villanueva in his favor on October 24, 1949. He likewise prayed by way of
attorney's fees and other costs the sum of P2,000.00 and for such other further relief which
the court may deem just and equitable in the premises. 4
On October 25, 1954, petitioner Goni as defendant in Civil Case No. 2990, filed an answer
with counterclaim for accounting of the produce of fields nos. 4 and 13, as well as the
surrerder thereof on June 20, 1955, the end of the fifth crop-year, plus moral damages in the
sum of P30,000.00 and P3,000.00 as attorney's fees. After an answer to the counter-claim
had been filed, private respondent Vicente amended his complaint on September 1, 1955, to
include a prayer for damages representing the produce of field no. 3 from 1949-50 until
delivery thereof to him. An answer with counterclaim to the amended complaint was duly
filed, and on April 25, 1956, private respondent Vicente amended his complaint anew to
include as parties-defendants the heirs of the late Praxedes Villanueva.
On July 13, 1957, the parties entered into a stipulation of facts, agreeing, among others, on
the costs of production and produce of the three fields in question. The case thereafter
proceeded to trial. Plaintiff presented two (2) witnesses: then party-plaintiff Gaspar Vicente,
himself, who over the objection of therein defendants testified on facts occurring before the
death of Praxedes Villanueva, and Epifanio Equio a clerk of TABACALERA Agency in the Bais
Sugar Central. Defendants presented Genaro Goni, who testified on the alleged verbal lease
agreement.
On December 18, 1959, the trial court rendered a decision ordering therein defendants-heirs
to deliver to Gaspar Vicente field no 3, to execute a formal deed of sale covering fields nos.
3, 4 and 13 in favor of Vicente, to pay the latter actual or compensatory damages in the
amount of P 81,204.48, representing 15% of the total gross income of field no. 3 for cropyears 1950-51 to 1958-59, and such other amounts as may be due from said field for the
crop years subsequent to crop-year 1958-59, until the field is delivered to Vicente, and to
pay the sum of P2,000.00 as attorney's fees plus costs. Therein defendant Goi was relieved
of any civil liability for damages, either personally or as administrator of the estate. 5
Both parties appealed the decision to the then Court of Appeals; the plaintiff from the
portion awarding damages on a claim that he was entitled to more, and defendants, from
the entire decision.
On December 15, 1966, the Court of Appeals promulgated its decision, affirming that of the
lower court, with the modification that the amount of damages to be paid by defendant-heirs
to the plaintiff should be the total net income from field no. 3 from the crop year 1950-51
until said field is finally delivered to the plaintiff plus interest thereon at the legal rate per
annum. 6

Petitioners filed a motion for reconsideration, but were denied the relief sought in a
resolution dated February 9, 1967. Hence, the present appeal by certiorari whereby
petitioners raise the following questions of law:
MAY RESPONDENT GASPAR VICENTE TESTIFY ON MATTERS OF FACT OCCURRING BEFORE
THE DEATH OF PRAXEDES T. VILLANUEVA, WHICH CONSTITUTES A CLAIM OR DEMAND UPON
HIS ESTATE. IN VIOLATION OF RULE 123, SEC, 26, PAR. (C), NOW RULE 130, SEC. 20 PAR. (A)?
MAY NOT A WRITTEN PROMISE TO SELL DATED OCTOBER 24,1949 BE NOVATED INTO A
VERBAL AGREEMENT OF LEASE DURING THE LIFETIME OF THE PROMISSOR, WHOSE DEATH
OCCURRED ON NOVEMBER 12, 1951, BY FACTS AND CIRCUMSTANCES SUBSTANTIATED BY
COMPETENT ORAL EVIDENCE IN THIS CASE?
SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO PAID P12,460.24 WHICH WAS TO BE
ACCOUNTED AND TO BE CREDITED AS RENTALS AFTER FIVE (5) YEARS OF LEASE, WHO IN
HIS ORIGINAL COMPLAINT DID NOT ALLEGE NOR PROVE DAMAGES, EXCEPT THE SUM OF
P2,000.00 AS ATTORNEY'S FEES, RECEIVE A JUDGMENT FOR DAMAGES IN THE AMOUNT OF
P74,056.35 WHICH CONSISTS OF P37,121.26 PLUS LEGAL INTEREST FOR THE CROP YEARS
1950-51 TO 1958-59 AND FOR P3,624.18 TO P4,374.78 FOR EVERY CROP YEAR SUBSEQUENT
TO 1958-59 PLUS
INTEREST? 7
We find that neither the trial nor appellate court erred in ruling for the admissibility in
evidence of private respondent Vicente's testimony. Under ordinary circumstances, private
respondent Vicente 8 would be disqualified by reason of interest from testifying as to any
matter of fact occurring before the death of Praxedes T. Villanueva, such disqualification
being anchored on Section 20(a) of Rule 130, commonly known as the Survivorship
Disqualification Rule or Dead Man Statute, which provides as follows:
Section 20. Disqualification by reason of interest or relationship.-The following persons
cannot testify as to matters in which they are interested, directly or indirectly, as herein
enumerated:
(a)
Parties or assignors of parties to a case, or persons in whose behalf a case is
prosecuted, against an executor or administrator or other representative of a deceased
person, or against a person of unsound mind, upon a claim or demand against the estate of
such deceased person or against such person of unsound mind, cannot testify as to any
matter of fact occurring before the death of such deceased person or before such person
became of unsound mind.
The object and purpose of the rule is to guard against the temptation to give false testimony
in regard to the transaction in question on the part of the surviving party and further to put
the two parties to a suit upon terms of equality in regard to the opportunity of giving
testimony. 9 It is designed to close the lips of the party plaintiff when death has closed the
lips of the party defendant, in order to remove from the surviving party the temptation to
falsehood and the possibility of fictitious claims against the deceased. 10
The case at bar, although instituted against the heirs of Praxedes Villanueva after the estate
of the latter had been distributed to them, remains within the ambit of the protection. The
reason is that the defendants-heirs are properly the "representatives" of the deceased, not
only because they succeeded to the decedent's right by descent or operation of law, but
more importantly because they are so placed in litigation that they are called on to defend
which they have obtained from the deceased and make the defense which the deceased
might have made if living, or to establish a claim which deceased might have been
interested to establish, if living. 11

Such protection, however, was effectively waived when counsel for petitioners crossexamined private respondent Vicente. "A waiver occurs when plaintiff's deposition is taken
by the representative of the estate or when counsel for the representative cross-examined
the plaintiff as to matters occurring during deceased's lifetime. 12 It must further be
observed that petitioners presented a counterclaim against private respondent Vicente.
When Vicente thus took the witness stand, it was in a dual capacity as plaintiff in the action
for recovery of property and as defendant in the counterclaim for accounting and surrender
of fields nos. 4 and 13. Evidently, as defendant in the counterclaim, he was not disqualified
from testifying as to matters of fact occurring before the death of Praxedes Villanueva, said
action not having been brought against, but by the estate or representatives of the
estate/deceased person.
Likewise, under a great majority of statutes, the adverse party is competent to testify to
transactions or communications with the deceased or incompetent person which were made
with an agent of such person in cases in which the agent is still alive and competent to
testify. But the testimony of the adverse party must be confined to those transactions or
communications which were had with the agent. 13 The contract/promise to sell under
consideration was signed by petitioner Goi as attorney-in-fact (apoderado) of Praxedes
Villanueva. He was privy to the circumstances surrounding the execution of such contract
and therefore could either confirm or deny any allegations made by private respondent
Vicente with respect to said contract. The inequality or injustice sought to be avoided by
Section 20(a) of Rule 130, where one of the parties no longer has the opportunity to either
confirm or rebut the testimony of the other because death has permanently sealed the
former's lips, does not actually exist in the case at bar, for the reason that petitioner Goi
could and did not negate the binding effect of the contract/promise to sell. Thus, while
admitting the existence of the said contract/promise to sell, petitioner Goi testified that the
same was subsequently novated into a verbal contract of lease over fields nos. 4 and 13 of
the Hacienda Dulce Nombre de Maria.
Novation takes place when the object or principal condition of an obligation is changed or
altered. 14 In order, however, that an obligation may be extinguished by another which
substitutes the same, it is imperative that it be so declared in unequivocal terms, or that the
old and the new obligations be on every point incompatible with each other. 15 "Novation is
never presumed. It must be established that the old and the new contracts are incompatible
in all points, or that the will to novate appear by express agreement of the parties or in acts
of equivalent import. 16
The novation of the written contract/promise to sell into a verbal agreement of lease was
clearly and convincingly proven not only by the testimony of petitioner Goi, but likewise by
the acts and conduct of the parties subsequent to the execution of the contract/promise to
sell. Thus, after the milling season of crop year 1949-50, only fields nos. 4 and 13 were
delivered to private respondent Vicente. Fields nos. 3, 4 and 13 were subsequently
registered in Villanueva's name and mortgaged with the RFC. Villanueva likewise executed a
deed of sale covering Hacienda Sarria in favor of Joaquin Villegas. All these were known to
private respondent Vicente, yet he did not take any steps toward asserting and/or protecting
his claim over fields nos. 3, 4 and 13 either by demanding during the lifetime of Villanueva
that the latter execute a similar document in his favor, or causing notice of his adverse claim
to be annotated on the certificate of title of said lots. If it were true that he made demands
on Villanueva for the surrender of field no. 3 as well as the execution of the corresponding
deed of sale, he should have, upon refusal of the latter to do so, immediately or within a
reasonable time thereafter, instituted an action for recovery, or as previously observed,
caused his adverse claim to be annotated on the certificate of title. Considering that field no.
3, containing an area of three (3) hectares, 75 ares and 60 centares, is the biggest among
the three lots, an ordinary prudent man would have taken these steps if he honestly

believed he had any right thereto. Yet, private respondent Vicente did neither. In fact such
inaction persisted even during the pendency of the intestate proceedings wherein he could
have readily intervened to seek exclusion of fields nos. 3, 4 and 13 from the inventory of
properties of the late Praxedes Villanueva.
The reason given by private respondent Vicente that field no. 3 was not delivered to him
together with fields nos. 4 and 13 because there were small sugar cane growing on said field
at that time belonging to TABACALERA, might be taken as a plausible explanation why he
could not take immediate possession of lot no. 3, but it certainly could not explain why it
took him four years before instituting an action in court, and very conveniently, as
petitioners noted, after Villanueva had died and at the time when the verbal contract of
lease was about to expire.
Both the trial and appellate courts chose to believe in the contract/promise to sell rather
than the lease agreement, simply because the former had been reduced to writing, while the
latter was merely verbal. It must be observed, though, that the contract/promise to sell was
signed by petitioner Goi as attorney-in-fact of the late Praxedes Villanueva, an indication, to
our mind, that final arrangements were made by petitioner Goi in the absence of
Villanueva. It was therefore natural for private respondent Vicente to have demanded that
the agreement be in writing to erase any doubt of its binding effect upon Villanueva. On the
other hand, the verbal lease agreement was negotiated by and between Villanueva and
private respondent Vicente themselves. Being close friends and relatives 17 it can be safely
assumed that they did not find it necessary to reduce the same into writing.
In rejecting petitioners' contention respecting the verbal lease agreement, the appellate
court put much weight on the failure of petitioners to demand an accounting of the produce
of fields nos. 4 and 13 from 1950 to 1954, when the action for recovery of property was
filed. Such failure was satisfactorily explained by petitioners in their motion for
reconsideration filed before the then Court of Appeals, in this manner:
... Mr. Genaro Goni is also a farmer by profession and that there was no need for him to
demand a yearly accounting of the total production because the verbal lease agreement was
for a term of 5 years. The defendant Mr. Genaro Goni as a sugar planter has already full
knowledge as to the annual income of said lots nos. 4 and 13, and since there was the
amount of P12,460.25 to be liquidated, said defendant never deemed it wise to demand
such a yearly accounting. It was only after or before the expiration of the 5 year lease that
said defendant demanded the accounting from the herein plaintiff regarding the production
of the 2 lots that were then leased to him.
It is the custom among the sugar planters in this locality that the Lessee usually demands an
advance amount to cover the rental for the period of the lease, and the demand of an
accounting will be only made after the expiration of the lease period. It was adduced during
the trial that the amount of P12,460.75 was considered as an advance rental of the 2 lots
which was leased to the Plaintiff, lots nos. 4 and 13; so we humbly believe that there was no
necessity on the part of defendant Mr. Genaro Goi to make a yearly demand for an
accounting for the total production of 2 parcels leased to the plaintiff. 18
Petitioners, having clearly and sufficiently shown that the contract/promise to sell was
subsequently novated into a verbal lease agreement, it follows that they are entitled to a
favorable decision on their counterclaim. Discussion of the third issue raised therefore
becomes unnecessary.
WHEREFORE, the decision appealed from is hereby reversed. The judicial administrator of
the estate of private respondent Gaspar Vicente and/or his successors-in-interest are hereby
ordered to: a) surrender possession of fields nos. 4 and 13 of the Hacienda Dulce Nombre de

Maria to petitioners; b) render an accounting of the produce of said fields for the period
beginning crop-year 1950-51 until complete possession thereof shall have been delivered to
petitioners; and c) to pay the corresponding annual rent for the said fields in an amount
equivalent to 15% of the gross produce of said fields, for the periods beginning crop-year
1950-51 until said fields shall have been surrendered to petitioners, deducting from the
amount due petitioners the sum of P12,460.24 advanced by private respondent Gaspar
Vicente.
SO ORDERED.
Inestate estate of Marcelino Tongco,
administratrix, plaintiff-appellant,
vs.
ANASTACIA VIANZON, defendant-appellee.

represented

by

JOSEFA

TONGCO,

M. H. de Joya and Enrique Tiangco for appellant.

Vicente J. Francisco for appelle.
MALCOLM, J.:
The fundamental question which is being litigated in this case and its companion case, R. G.
No. 27499,1 is whether the property in dispute should be assigned to the estate of Marcelino
Tongco, or whether it should be set aside as belonging exclusively to the widow.
Marcelino Tongco and Anastacia Vianzon contracted marriage on July 5, 1894. The first
named died on July 8, 1925, leaving the second named as his widow. The niece of the
deceased, Josefa Tongco, was named administratrix of the estate. It appears that shortly
before the death of Marcelino Tongco, he had presented claims in a cadastral case in which
he had asked for titles to certain properties in the name of the conjugal partnership
consisting of himself and his wife, and that corresponding decrees for these lots were issued
in the name of the conjugal partnership not long after his death.
In the cadastral case, the widow began action on April 28, 1926, when she presented a
motion for a revision of certain decrees within the one-year period provided by the Land
Registration Law. Issue was joined by the administratrix of the estate. A decision was
rendered by Judge of First Instance Rovira concluding with this pronouncement of a
judgment: "Therefore, and by virtue of the provisions of section 38 of Act. No. 496, decrees
Nos. 191390, 191504, and 190925, relative to lots Nos. 1062, 1263, and 491 of this
cadastral record, as well as the original certificates of title Nos. 3247, 3298, and 3297 in
regard thereto, and hereby annulled and set aside, and it is ordered that in lieu thereof new
decrees and certificates of title be issued for lots Nos. 1062, 1263, and 491, as the exclusive
property of Anastacia Vianzon, of legal age, widow, and resident of Orani Bataan, free from
all encumbrances and liens. In regard to lot No. 460, the court sustains the decree already
issued in due time with respect to said lot." Sometime later, a motion for a new trial was
presented with accumulated affidavits by counsel for the losing party. This motion was
denied by the trial judge.
On July 19, 1926, the administratrix of the estate began action against Anastacia Vianzon for
the recovery of specified property and for damages. The issue was practically the same as in
the cadastral case Judgment was rendered by Judge Rovira couched in the following
language: "Therefore, the court renders judgment absolving the defendant from the
complaint in this case, and only declares that one- half of the value of the shares in the
Sociedad Cooperativa de Credito Rural de Orani, to the amount of ten pesos (P10), belonging
to the intestate estate of Marcelino Tongco, which one-half interest must appear in the

inventory of the property of the estate of the deceased Marcelino Tongco." The motion for a
new trial was denied by His Honor, the trial judge.
From both of the judgments hereinbefore mentioned, the administratrix of the estate of
Marcelino Tongco had appealed. The first action filed, which was in the cadastral case, has
now become the last in number and is 27399. The second action filed in the property case
has now become the first in number and is 27498. As pursuant to the agreement of the
parties the two cases were tried together, they can be best disposed of together on appeal.
The first, third, fourth, and fifth errors assigned in the property case and the second error
assigned in the cadastral case primarily concern findings of fact and relate to the
discretionary power of the trail judge. The second error assigned in the property case and
the first error assigned in the cadastral case attack the ruling of the trial judge to the effect
that the widow was competent to testify.
It is true that by reason of the provisions of article 1407 of the Civil Code the presumption is
that all the property of the spouses is partnership property in the absence of proof that it
belongs exclusively to the husband or to the wife. But even proceeding on this assumption,
we still think that the widow has proved in a decisive and conclusive manner that the
property in question belonged exclusively to her, that is, it would, unless we are forced to
disregard her testimony. No reversible error was committed in the denial of the motion for a
new trial for it is not at all certain that it rested on a legal foundation, or that if it had been
granted it would have changed the result.
Counsel for the appellant, however, asserts that if the testimony of the widow be discarded,
as it should be, then the presumption of the Civil Code, fortified by the unassailable
character of Torrens titles, arises, which means that the entire fabric of appellee's case is
punctured. Counsel relies on that portion of section 383 of the Code of Civil Procedure as
provides that "Parties or assignors of parties to an action or proceeding, or persons in whose
behalf an action or proceeding is prosecuted, against an executor or administrator or other
representative of a deceased person, . . ., upon a claim or demand against the estate of
such deceased person . . ., cannot testify as to any matter of fact occurring before the death
of such deceased person . . . ." Counsel is eminently correct in emphasizing that the object
and purpose of this statute is to guard against the temptation to give false testimony in
regard to the transaction is question on the part of the surviving party. He has, however,
neglected the equally important rule that the law was designed to aid in arriving at the truth
and was not designed to suppress the truth.
The law twice makes use of the word "against." The actions were not brought "against" the
administratrix of the estate, nor were they brought upon claims "against" the estate. In the
first case at bar, the action is one by the administratrix to enforce demand "by" the estate.
In the second case at bar, the same analogy holds true for the claim was presented in
cadastral proceedings where in one sense there is no plaintiff and there is no defendant.
Director of Lands vs. Roman Catholic Archibishop of Manila [1920], 41 Phil., 120 nature of
cadastral proceedings; Fortis vs. Gutierrez Hermanos [1906], 6 Phil., 100 in point by
analogy; Maxilom vs. Tabotabo [1907], 9 Phil., 390 and Kiel vs. Estate of P. S. Sabert [1924],
46 Phil., 193 both clearly distinguishable as can be noted by looking at page 197 of the
last cited case; Sedgwick vs. Sedgwick [1877], 52 Cal., 336, 337; Myers vs. Reinstein [1885],
67 Cal., 89; McGregor vs. Donelly [1885], 67 Cal., 149, 152; Booth vs. Pendola [1891], 88
Cal., 36; Bernardis vs. Allen [1902], 136 Cal., 7; Calmon vs. Sarraille [1904], 142 Cal., 638,
642; Bollinger vs. Wright [1904], 143 Cal., 292, 296; Whitney vs. Fox [1897], 166 U. S. 637,
648.) Moreover, a waiver was accomplished when the adverse party undertook to crossexamine the interested person with respect to the prohibited matters. (4 Jones on Evidence,
pp. 767 et seq.; Stair vs. McNulty [1916], 133 Minn., 136; Ann. Cas., 1918D 201.) We are of
the opinion that the witness was competent.

The result, therefore, must be to adhere to the findings and rulings of the trial judge. No
prejudicial error is noted in the proceedings.
Judgment affirmed, with the costs of this instance against the appellant.

Testate estate of RICHARD THOMAS FITZSIMMONS, deceased, MARCIAL

LICHAUCO, administrator-appellee,
vs.
ATLANTIC, GULF and PACIFIC COMPANY OF MANILA, claimant-appellant.

P.

Perkins, Ponce Enrile, Contreras and Gomez and Taada, Pelaez and Teehankee for appellant.
Roxas, Picazo and Mejia for appellee.
OZAETA, J.:
This is an appeal from a judgment of the Court of First Instance of Manila denying appellant's
claim of P63,868.67 against the estate of the deceased Richard T. Fitzsimmons, and granting
appellee's counterclaim of P90,000 against the appellant.
That appellant Atlantic, Gulf and Pacific Company of Manila is a foreign corporation duly
registered and licensed to do business in the Philippines, with its office and principal place of
business in the City of Manila.
Richard T. Fitzsimmons was the president and one of the largest stockholders of said
company when the Pacific war broke out on December 8, 1941. As such president he was
receiving a salary of P3,000 a month. He held 1,000 shares of stocks, of which 545 shares
had not been fully paid for, but for which he had executed promissory notes in favor of the
company aggregating P245,250, at the rate P450 a share. In 1941 the sum of P64,500 had
been credited in his favor on account of the purchase price of the said 545 share of stock out
of bonuses and dividends to which he was entitled from the company. Under his agreements
with the company dated April 4 and July 12, 1939, should he die without having fully paid for
the said 545 shares of stock, the company, at its option, may either reacquire the said 545
shares of stock by returning to his estate the amount applied thereon, or issue in favor of his
estate the corresponding number of the company's shares of stock equivalent to the amount
paid thereon at P450 a share.

Soon after the Japanese army occupied Manila in January, 1942, it seized and took
possession of the office and all the properties and assets of the appellant corporation and
interned all its officials, they being American citizens.
Richard T. Fitzsimmons died on June 27, 1944, in the Santos Tomas interment camp, and
special proceeding No. 70139 was subsequently instituted in the Court of First Instance of
Manila for he settlement of his estate.
The Atlantic, Gulf and Pacific Company of Manila resumed business operation in March,
1945.
In due course the said company filed a claim against the estate of Richard T. Fitzsimmons
which, as amended, consisted of the following items:
A. Personal overdraft of Richard T. Fitzsimmons with Atlantic, Gulf and Pacific Company of
Manila in current account ...................................................................
P63,000.00
B. Charges from San Francisco agent of the company not included in above figure A as of
November 30, 1945 (P1,002), less subsequent credit advice from San Francisco agent
(P133.33) .............................................................................
868.67
Total ....................................................................................
P63,868.67
In the same claim the company offered to require the 545 shares sold to the deceased
Fitzsimmons upon return to his estate of the amount of P64,500 paid thereon, and asked the
court to authorize the setoff of the amount of its claim of P63,868.67 from the amount of
P64,500 returnable to the estate.
In his answer to the amended claim the administrator denied the alleged indebtedness of
the deceased to the claimant, expressed his conformity to the refund of P64,500 by the
claimant to the estate and the retransfer by the latter to the former of the 545 shares of
stock, and set up a counterclaim of P90,000 for salaries allegedly due the deceased from the
claimant corresponding to the years 1942, 1943, and the first half of 1944, at P36,000 per
annum.
The issues raised by this appeal are:
1. Whether appellant's claims of P63,000 and P868.67 have been established by satisfactory
evidence; and
2. Whether the deceased Richard T. Fitzsimmons was entitled to his salary as president of
the Atlantic, Gulf & Pacific Company of Manila from January, 1942, to June 27, 1944, when he
died in the Santo Tomas internment camp.
I. Upon the claim of P63,000 (item A) the evidence for the claimant consisted of the
testimony of Santiago Inacay and Modesto Flores, chief accountant and assistant
accountant, respectively, of the Atlantic, Gulf & Pacific Company of Manila. (It is admitted

that all the prewar books and records of the company were completely destroyed or lost
during the war.)
Santiago Inacay testified in substance as follows: He was chief of the accounting department
of the Atlantic, Gulf & Pacific Company from June, 1930, to December, 1941, and from
March, 1945, to the present. The officers of the company had the privilege of maintaining
personal accounts with the company. The deceased Fitzsimmons maintained such an
account, which consisted of cash advances from the company and payments of bills from
outside for his account. On the credit side were entered the salaries of the official and the
payments made by him. "The personal account of Mr. Fitzsimmons, in the year 1941, was on
the debit balance; that is, he owed money that debit account of Mr. Fitzsimmons, basing on
your recollections? A. In my collections of the account, personal account of Mr.
Fitzsimmons, as of the last statement of account rendered in the year 1941, it was around
P63,000." At the end of each month the accounting department rendered to the deceased a
statement of his account showing the balance of his account, and at the bottom of that
correctness of the balance. The last statement of account rendered to the deceased was
that corresponding to the month of November, 1941, the office of the company having
closed on December 29, 1941. Asked how it was possible for him to remember the status of
the personal account of Mr. Fitzsimmons, he replied: "As Mr. Fitzsimmons was the president
and member of the board of directors, I have to remember it, because it is very shameful on
my part that when the said officer and other officers of the company come around and ask
me about their balance, I could not tell them the amount of their balance, although not in
exact figures, at least in round figures." This witness further testified on direct examination
as follows:
Q. You said that Mr. Fitzsimmons is one of those office whose personal account with the
Atlantic, Gulf & Pacific Co. used to be on the debit side in the years previous to 1941. Can
you tell the Honorable Court what would happen at the end of each year to the personal
account, and to the status of the personal account of Mr. Fitzsimmons? A. At the each
year, after the declaration of dividends on paid shares, bonuses and directors' fees, the
account will balance to a credit balance. In other words, at the start of the following years,
the account will be on the credit side.
Q. So that I gather from you, Mr. Inacay, that the personal account of Mr. Fitzsimmons, as
well as the other officers of the Atlantic, Gulf & Co., at the end of each year, and at the
beginning of the incoming year, generally, would be in the credit balance; because of the
application of dividends on paid shares, bonuses and the directors' fees? A. Yes, sir. (Page
80, t. s. n.)
On cross-examination the witness admitted that he could not recollect the amount of the
balance, either debit or credit, of each of the Americans and other employees who
maintained a current account with the company; and on redirect examination he explained
that he remembered the balance of the account of Mr. Fitzsimmons "because as account I
should be I should have knowledge more or less, of the status of the account of the
president, the treasurer, and the rest of the directors."
Modesto Flores testified in substance as follows: He was assistant accountant of the Atlantic,
Gulf & Pacific Company from October 1, 1935, to December, 1941, and from March 8, 1945,
to the present. In 1941, Mr. Fitzsimmons, president of the company, had a personal account
with the latter consisting of cash advances which he withdrew from the company and of
payments for his account of groceries, automobile, salary of his chauffeur, gasoline and oil,
and purchases of furniture for his house and other articles for his personal use. On the credit
side of his account were entered his monthly salaries, the dividends declared, if any, the
bonuses, and the director's fees. Witness was the one who as accountant made the entries
in the books of the company. When Mr. Fitzsimmons withdrew funds by way of cash

advances from the company, he signed receipts therefor which were delivered to the
cashier, who in turn delivered them to him. When creditors of Mr. Fitzsimmons presented
bills to the accounting department for payments, those bills were approved by Mr.
Fitzsimmons and the company paid them and charged them to his account. All the books,
receipts, papers, documents, and accounts referring to the personal account of Mr.
Fitzsimmons were lost during the war. Witness remembered that the personal account of Mr.
Fitzsimmons on December 29, 1941, was on the debit side, amounting to P63,000 more or
less, according to his best recollection. On cross-examination he testified that in the absence
of the records he could not state what part of the P63,000 represented cash advances and
what part represented payments made by the company to the creditors of Mr. Fitzsimmons.
Aside from Santiago Inacay and Modesto Flores, the claimant also called as witnesses Mr.
Henry J. Belden and Mr. Samuel Garmezy, vice-president-treasurer and president,
respectively, of the claimant company, to testify on the status of the personal account of the
deceased Fitzsimmons with the company as of December, 1941; but upon objection of the
administrator the trial court refused to admit their testimony on that point on the ground
that said witnesses were incompetent under section 26(c) of Rule 123, they being not only
large stockholders and members of the board of directors but also vice-president-treasurer
and president, respectively, of the claimant company.
In view of the ruling of the trial court, counsel for he claimant stated in the record that Mr.
Belden, if permitted to testify, would testify as follows: That the deceased Fitzsimmons,
being president of the Atlantic, Gulf and Pacific Company in the year 1941, had a current
account with said company which, upon the outbreak of the war in December, 1941, had a
debt balance against him of P63,000, and that said sum or any part thereof had not been
paid. At the suggestion of the court counsel asked his witness whether, if permitted, he
really would so testify, and the witness answered in the affirmative, whereupon the court
said: "Let Attorney Gomez's offer of testimony ratified by the witness Mr. Belden be made of
record."
With regard to the witness Mr. Garmezy, counsel for the claimant also made the following
offer of proof, to wit: That if said witness were allowed to testify, he would testify as follows:
That sometimes in Novembersometime during the last days of November, or the first days
of December, 1941he received a copy of the trial balance sheet, and in that trial balance
sheet, among other things, the personal accounts of each and every one of the officers of
the Atlantic, Gulf and Pacific Co., including himself, and also the deceased R. T. Fitzsimmons,
appear; and that this witness would also testify to the fact that on that occasion he checked
up his own personal record with the entries appearing in the said trial balance sheet, and he
then had occasion to find out that the account of the deceased Fitzsimmons with the
Atlantic, Gulf and Pacific Co. was a debit account in the amount of around sixty-three
thousand pesos, while the personal account of Mr. Garmezy, the witness now testifying,
showed a credit account in the sum of around sixty-three thousand pesos. This witness will
also testify that this account of sixty-three thousand pesos owed by Mr. Fitzsimmons
appeared in that trial balance, which he had occasion to read in the first days of December,
1941, was not paid by Mr. Fitzsimmons until the present date. (Pages 35-36, t. s. n.)
That offer of proof was likewise ratified by the witness Garmezy and made of record by the
trial court.
The evidence for the administrator against this claim of P63,000 consisted of Exhibit 1 and
the testimony of Mr. Marcial P. Lichauco explaining the circumstances under which said
document was prepared and signed by the deceased Fitzsimmons. It appears that on
December 15, 1942, Richard Thomas Fitzsimmons sued his wife Miguela Malayto for divorce
in the Court of First Instance of Manila. On August 9, 1943, after due trial, the court rendered

judgment granting plaintiff's petition for divorce and ordering the dissolution of the marriage
between the parties. Attorney Lichauco represented the plaintiff in that divorce case. After
the decree of divorce had become final the plaintiff Fitzsimmons, pursuant to the provisions
of the divorce law then in force, submitted to the court an inventory of the assets and
liabilities of the conjugal partnership, with a proposed adjudication or division of the net
assets among the ex-pouses and their children. A carbon copy of said inventory, which was
signed by Richard Thomas Fitzsimmons on November 9, 1943, and filed in the Court of First
Instance of Manila on the same date in civil case No. 296, was presented by the
administrator as Exhibit 1 in this case and admitted by the trial court over the objection of
the claimant. The administrator Mr. Lichauco testified herein that as attorney for Mr.
Fitzsimmons in the divorce case he prepared the said inventory from the data furnished him
by Mr. Fitzsimmons after he had conferred with and explained to the latter why it was
necessary to prepare said inventory, telling him that under the divorce law the conjugal
properties had to be liquidated; that since he (Fitzsimmons) was married to Miguela Malayto
in the year 1939, he had to include in said inventory all the properties acquired by him
between the date of his marriage and the date of his divorce, and that all the obligations
incurred by him and not yet paid during the same period should be included because they
had to be deducted from the assets in order to determine the net value of the conjugal
properties; that he made it very clear to Mr. Fitzsimmons that he should not forget the
obligations he had because they would diminish the amount his wife was going to receive,
and that any obligation not included in the inventory would be borne by him alone after his
wife had received her share.
According to Exhibit 1 the gross value of the assets of the conjugal partnership between the
deceased Fitzsimmons and his wife Miguela Malayto as of November, 1943, was P174,700,
and the total amount of the obligations was P30,082. These obligations consisted of only two
itemsone of P21,426 in favor of the Peoples Bank and Trust Company and another of
P8,656 in favor of the Philippine Bank of Commerce. In other words, no obligation
whatsoever in favor of the Atlantic, Gulf and Pacific Company of Manila was listed in said
inventory Exhibit 1. And upon that fact the administrator based his opposition to the claim in
question.
Before weighing the evidence hereinabove set forth to determine whether it is sufficient to
prove appellant's claim of P63,000, it necessary for us to pass upon appellant's first and
third assignments of error referring, respectively, to the trial court's rejection of the
testimony of the witnesses Belden and Garmezy and its admission of Exhibit 1.
The question raised by the first assignment of error is whether or not the officers of a
corporation which is a party to an action against an executor or administrator of a deceased
person are disqualified from testifying as to any matter of fact occurring before the death of
such deceased person, under Rule 123, section 26(c), of the Rules of Court, which provides:
Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted,
against an executor or administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand against the estate of such
deceased person or against such person of unsound mind, cannot testify as to any matter of
fact occurring before the death of such deceased person or before such person became of
unsound mind.
This provision was taken from section 383, paragraph 7, of our former Code of Civil
Procedure, which in turn was derived from section 1880 of the Code of Civil Procedure of
California.
In the case of City Savings Bank vs. Enos, 135 Cal., 167; 67 Pac., 52, 55, the Supreme Court
of California, interpreting said article 1880, said:

. . . The provision applies only to parties or assignors of parties, and Haslam was neither the
one nor the other. If he was a stockholder, which it is claimed he was, that fact would make
no difference, for interest no longer disqualifies under our law, Civ. Code Proc. sec. 1879.
Appellant cites section 14, Civ. Code, to the effect that the word "person" includes a
corporation; and claims that, as the corporation can only speak through its officers, the
section must be held to apply to all who are officially related to section must be held to
apply to all who are officially related to the corporation. A corporation may be conceded to
be a person, but the concession does not help appellant. To hold that the statute disqualifies
all persons from testifying who are officers or stockholders of a corporation would be
equivalent to materially amending the statute by judicial interpretation. Plainly the law
disqualifies only "parties or assignors of parties," and does not apply to persons who are
merely employed by such parties or assignors of parties.
In a later case, Merriman vs. Wickersman, 141 Cal., 567; 75 Pac., 180, 181-182, the same
tribunal, in passing upon the competency of a vice-president and principal stockholder of a
corporation to testify, reaffirmed its ruling in City Savings Bank vs. Enos, supra, after
examining decisions of other state supreme courts in relation to their respective statutes on
the same subject. The court said:
The Burnham and Marsh Company is a corporation. Mr. Marsh, vice-president and one of its
principal stockholders, was allowed to testify to matters and facts in issue. It is contended
that the evidence was improperly admitted, in violation of section 1880 of the Code of Civil
Procedure, which provides that "the following persons cannot be witnesses: . . . Parties or
assignors of parties to an action or proceeding, or persons in whose behalf an action or
proceeding is prosecuted, against an executor or administrator, upon a claim or demand
against the estate of a deceased person, as to any matter of fact occurring before the death
of such deceased person." At common law interest disqualified any person from being a
witness. That rule has been modified by statute. In this state interest is no longer a
disqualification, and the disqualifications are only such as the law imposes. Code Civ. Proc.,
sec. 1879. An examination of the authorities from other states will disclose that their
decisions rest upon the wordings of their statutes, but that generally, where interest in the
litigation or its outcome has ceased to disqualify, officers and directors of corporations are
not considered to be parties within the meaning of the law. In example, the statute of
Maryland (Pub. Gen. Laws, art. 35, sec. 2) limits the disability to the "party" to a cause of
action or contract, and it is held that a salesman of a corporation, who is also a director and
stockholder, is not a party, within the meaning of the law, so as to be incompetent to testify
in an action by the company agaisnt the other party, who is insane or dead. Flach vs.
Cottschalk Co., 88 Md., 368; 41 Atl., 908; 42 L. R. A., 745; 71 Am. St. Rep., 418 To the
contrary, the Michigan law expressly forbids "any officer or agent of a corporation" to testify
at all in relation to matters which, if true, must have been equally within the knowledge of
such deceased person. Howell's Ann. St. Mich. sec. 7545. The Supreme Court of Michigan, in
refusing to extend the rule to agents of partnership, said: "It is conceded that this testimony
does not come directly within the wording of the statute, but it is said there is the same
reason for holding the agent of a partnership disqualified from testifying that there is in
holding the agent of a corporation. This is an argument which should be directed to the
legislative rather than to the judicial department of government. . . . The inhibition has been
put upon agents of corporations, and has not been put upon agents of partnerships. We
cannot, by construction, put into the statute what the Legislature has not seen fit to put into
it." Demary vs. Burtenshaws" Estate (Mich.), 91 N. W., 649. In New York the statute provides
that against the executor, administrator, etc., "no party or person interested in the event, or
person from, through, or under whom such party or interested person derives his interest or
title shall be examined as a witness in his own behalf or interest." This is followed by the
exception that a person shall not be deemed interested by reason of being a stockholder or
officer of any banking corporation which is a party to the action or proceeding or interested

in the event thereof. Ann. Code Civ. Proc. N. Y., sec. 829. Here it is apparent that the interest
of the witness is made a disqualification, and it is of course held that stockholder and
officers of corporations other than banking corporations are under disqualification. Keller vs.
West Bradley Mfg. Co., 39 Hun, 348.
To like effect is the statute of Illinois, which declares that no party to any civil action, suit or
proceedings, or person directly interested in the event thereof shall be allowed to testify
under the given circumstances. Under this statute it is held that stockholders are interested,
within the meaning of the section, and are incompetent to testify against the
representatives of the deceased party. Albers Commission Co. vs. Sessel, 193 Ill., 153, 61 N.
E., 1075. The law of Missouri disqualifies "parties to the contract or cause of action," and it is
held that a stockholder, even though an officer of the bank, is not disqualified by reason of
his relation to the corporation when he is not actually one of the parties to the making of the
contract in the interest of the bank.
Our own statute, it will be observed, is broader than any of these. It neither disqualifies
parties to a contract nor persons in interest, but only parties to the action (Code Civil
Procedure, sections 1879, 1880); and thus it is that in City Savings Bank vs. Enos, 135 Cal.,
167, 67 Pac., 52, it has been held that one who is cashier and at the same time a
stockholder of a bank was not disqualified, it being said: "to hold that the statute disqualifies
all persons from testifying who are officers or stockholders of a corporation would be
equivalent to materially amending the statute by judicial interpretation." It is concluded,
therefore, that our statute does not exclude from testifying a stockholder of a corporation,
whether he be but a stockholder, or whether, in addition thereto, he be a director or officer
thereof.
The same view is sustained in Fletcher Cyclopedia Corporations, Vol. 9, pages 535-538; in
Jones on Evidence, 1938 Ed. Vol. 3, page 1448; and in Moran on the Law of Evidence in the
Philippines, 1939 Ed. pages 141-142.
The appellee admits in his brief in those states where the "dead man's statute" disqualifies
only parties to an action, officers and stockholders of the corporation, have been allowed to
testify in favor of the corporation, while in those states where "parties and persons
interested in the outcome of the litigation" are disqualified under the statute, officers and
stockholders of the corporation have been held to be incompetent to testify against the
estate of a deceased person.
The weight of authority sustains appellant's first assignment of error. Inasmuch as section
26(c) of Rule 123 disqualifies only parties or assignors of parties, we are constrained to hold
that the officers and/or stockholders of a corporation are not disqualified from testifying, for
or against the corporation which is a party to an action upon a claim or demand against the
estate of a deceased person, as to any matter of fact occurring before the death of such
deceased person.
It results that the trial court erred in not admitting the testimony of Messrs. Belden and
Garmezy. It is not necessary, however, to remand the case for the purpose of taking the
testimony of said witnesses because it would be merely corroborative, if at all, and in any
event what said witnesses would have testified, if permitted, already appears in the record
as hereinabove set forth, and we can consider it together with the testimony of the chief
accountant and the assistant accountant who, according to the appellant itself, were "the
only ones in the best of position to testify on the status of the personal account" of the
deceased Fitzsimmons.

The third assignment of error raises the question of the admissibility of Exhibit 1. Appellant
contends that it is a self-serving declaration, while appellee contends that it is a declaration
against interest.
A self-serving declaration is a statement favorable to the interest of the declarant. It is not
admissible in evidence as proof of the facts asserted. "The vital objection to the admission of
this kind of evidence is its hearsay character. Furthermore such declarations are
untrustworthy; to permit their introduction in evidence would open the door to frauds and
perjuries." (20 Am. Jur., Evidence, sec. 558, pages 470-471.).
On the other hand, a declaration against the interest of the person making it is admissible in
evidence, notwithstanding its hearsay character, if the declaration is relevant and the
declarant has died, become insane, or for some other reason is not available as a witness.
"The true test in reference to the reliability of the declaration is not whether it was made
ante litem motam, as is the case with reference to some classes of hearsay evidence,
whether the declaration was uttered under circumstances justifying the conclusion that
there was no probable motive to falsify." (Id., section 556, pp. 467-468.)
Insofar, at least, as the appellant was concerned, there was no probable motive on the part
of Fitzsimmons to falsify his inventory Exhibit 1 by not including therein appellant's present
claim of P63,000 among his obligations or liabilities to be deducted from the assets of the
conjugal partnership between him and his divorced wife. He did not know then that he would
die within one year and that the corporation of which he was the president and one of the
largest stockholders would present the claim in question against his estate. Neither did he
know that the books and records of that corporation would be destroyed or lost. Yet,
although he listed in said inventory his obligations in favor of the Peoples Bank and Trust
Company and the Philippine Bank of Commerce aggregating more than P30,000, he did not
mention at all any obligation in favor of the corporation of which he was the president and
one of the largest stockholders.
Assuming that he owed his corporation P63,000 for which he signed receipts and vouchers
and which appeared in the books of said corporation, there was no probable motive for him
not to include such obligation in the inventory Exhibit 1. It would have been to his interest to
include it so that his estranged and divorced wife might share in its payment. The net assets
appearing in Exhibit 1 amounted to P144,618, one-half of which was adjudicated to the
children and the other half was divided between the spouses, so that each of the latter
received only P36,154.50. By not including the obligation of P63,000 claimed by the
appellant (assuming that he owed it), Fitzsimmons' adjudicated share in the liquidation of
the conjugal partnership would be short by nearly P27,000 to meet said claim, whereas by
including said obligation he would have received a net share of more than P10,000 free from
any liability.
We find no merit, that Exhibit 1, insofar as the commission therefrom of the claim in
question was concerned, far from being self-serving to, was a declaration against the
interest of, the declarant Fitzsimmons. He having since died and therefore no longer
available as a witness, said document was correctly admitted by the trial court in evidence.
We have no reason whatsoever to doubt the good faith of Messrs. Samuel Garmezy and
Henry J. Belden, president and vice-president-treasurer, respectively, of the claimant
corporation, in presenting the claim of P63,000 against the estate of Fitzsimmons, nor the
good faith of the administrator Mr. Marcial P. Lichauco in opposing said claim. They are all
men of recognized integrity and of good standing in society. The officers of the claimant
corporation have shown commendable fairness in their dealings with the estate of
Fitzsimmons. They voluntarily informed the administrator that Fitzsimmons had paid P64,500
on account of the purchase price of 545 shares of stock of the company, and not P45,000

only, as the administrator believed. Likewise, they voluntarily informed him in connection
with his claim for Fitzsimmons' back salaries that Fitzsimmons' annual salary was P36,000
and not P30,000, as the administrator believed. We can therefore readily assume that
Messrs. Garmezy and Belden believed in good faith that the books of the corporation
showed a debit balance of around P63,000 as of the outbreak of the Pacific war on
December 8, 1941.
On the other hand, if Mr. Fitzsimmons, who was the president and one of the largest
stockholders of the claimant corporation, really owed the latter around P63,000 on
December 8, 1941, and had not paid it before he liquidated his conjugal partnership in
November, 1943, as a consequence of the decree of divorce he obtained against his wife, we
see no reason why did not include such obligation in said liquidation. Judging from the high
opinion which the officers and stockholders of the corporation entertained of Fitzsimmons as
shown by their resolution hereinafter quoted, they cannot impute bad faith to him in not
acknowledging the claim in question.
There is a possible explanation of this seemingly irreconcilable conflict, which in the absence
of other proofs we consider satisfactory but which both parties seem to have overlooked. We
find it in the testimony on direct examination of appellant's witness Santiago Inacay, page
80 of the transcript, hereinabove quoted. According to Inacay, at the end of each year, after
the declaration of dividends, bonuses, and director's fees, the account of Fitzsimmons was
brought up to a direct balance. "In other words," he said, "at the start of the following year
the account will be on the credit side." Not satisfied with that categorical statement, counsel
for the appellant asked his own witness the following question and the witness gave the
following answer:
Q. So that I gather from you, Mr. Inacay, that the personal account of Mr. Fitzsimmons, as
well as the officers of the Atlantic, Gulf and Pacific Co., at the end of each year, and at the
beginning of the incoming year, generally, would be in the credit balance; because of the
application of dividends on paid shares, bonuses, and director's fees? A. Yes, sir.
Q. In the year, 1941, therefore, no declaration of dividends for the last six months-there
were no declarations of director's fees . . . I withdraw the question, and that is all.
It is to be regretted that neither counsel for the appellant nor counsel for the appellee
pursued the examination of the witness to determine, if possible, the approximate amount of
the dividends, bonuses, and director's fees that would have been credited to Fitzsimmons as
of the end of the year 1941. But enough appears in the testimony to warrant the deduction
that had the war not forced the corporation to close office on December 29, 1941, dividends,
bonuses, and director's fees for the year 1941 would, as of the and of that year, have been
declared and credited to the account of Fitzsimmons, which as in previous years would or
might have brought that account on the credit side. President Garmezy reported to the
meeting of the stockholders that the volume of work performed by the company in 1941
"exceed that of 1940." (Exhibit 2.) We cannot assume that the company earned less profits
in 1941 than in 1940. Probably the reason why Fitzsimmons did not include or mention any
obligation in favor of his own corporation in his inventory Exhibit 1 was that he believed he
was entitled to be credited by said corporation with dividends, bonuses, and director's fees
corresponding to the year 1941, which as in previous years would bring his account on the
credit side. If that was the case, the company was technically correct in asserting that at the
outbreak of the Pacific war in December, 1941, its books showed a debit balance against
Fitzsimmonsno dividends, bonuses, and director's fees having been actually declared and
credited to Fitzsimmons at that time. But we think Fitzsimmons was justified in considering
his account was having to all intends and purposes been brought on the credit side; because
if such dividends, bonuses, and director's fees had been earned, the fact that they were not
actually declared and credited to him, should not prejudice him the subsequent loss of the

company's properties and assets as a result of the war should be borne by the company and
not by its officers.
Leaving the foregoing reflections aside, we are confronted only, on the one hand, by the oral
testimony of the witnesses for the claimant based entirely on their memory as to the status
of Fitzsimmons' account, and not on the other by Exhibit 1, which contradicts said testimony.
Realizing the frailty and unreability of human memory, especially with regard to figures,
after the lapse of more than five years, we find no sufficient basis upon which to reverse the
trial court's finding that this claim had not been satisfactorily proven.
With reference to the item of P868.67, we find it to have been sufficiently proven by the
testimony of Santiago Inacay and Modesto Flores, supported by the documents Exhibit A, B,
C, and D, which establish the fact that in November and December, 1941, the San Fracisco
agent of the company deposited in the Crocker First National Bank of San Francisco the total
sum of $500 to the account of Fitzsimmons, which said agent debited against the company.
Debit notices of the deposits were not received by the company until after the liberation.
The administrator admitted in his testimony that after the death of Fitzsimmons' account in
the sum of P1,788.75. Aside from that debit of P1,000, against also paid $1 or P2 for
Fitzsimmons' subscription to the San Fracisco Chronicle, making a total of P1,002. From this
was deducted a credit of P133.33, consisting of a payment made on June 30, 1946, by a
creditor of Fitzsimmons named J. H. Chew as testified to by Mr. Flores and supported by
Exhibit E, leaving a balance of P868.67.
The trial court therefore erred in not allowing said claim.
II. We shall now pass upon appellant's fourth assignment of error, which assails the trial
court's granting of appellee's counterclaim of P90,000 for salaries allegedly due to the
deceased Fitzsimmons as president of the appellant corporation for the years 1942, 1943,
and the first six months of 1944.
The undisputed facts are: Fitzsimmons was the president of the appellant corporation in
1941 with a salary of P36,000 a year. The corporation was forced to suspend its business
operations from December 29, 1941, to March 8, 1945, on account of the war, its office and
all its properties having been seized by the Japanese invader. Fitzsimmons, together with the
other officers of the corporation, was interned by the enemy in the Santo Tomas internment
camp, where he died on June 27, 1944.
At the annual meeting of the stockholders of the corporation held on January 21, 1946, the
president, S. Garmezy, reported among other things as follows:
While interned, the Company borrowed money on notes signed by Mr. Fitzsimmons and Mr.
Garmezy; money was also received for the same purpose without signing of notes. Mr.
Kihlstedt, who before the war was Superintendent of the Philippine Iron Mines, helped a
great deal in obtaining this money, bringing it to Camp and distributing it to families living
outside the Camp. Mr. Kihlstedt being a Swedish citizen, was able to live outside and he did
some very good work.
And in that meeting the following resolutions, among others, were approved:
RESOLVED, that all acts in 1941 through 1945 of the Directors in office since their election in
1941 and elected in the interim, as duly recorded in the minutes of the meetings of the
Board, are hereby approved, ratified and confirmed, and are to be accepted as acts of this
corporation.

RESOLVED, that in the death of R. T. Fitzsimmons, President of the Company from March,
1939, to the time of his death, which occurred in the Santo Tomas Internment Camp, Manila,
on June 27, 1944, the Company suffered a distinct loss and his country a loyal American;
FURTHER, that his passing is keenly felt and mourned by those of the Company with whim
he was associated for more than thirty years, not only for the kindness, consideration and
tolerance he showed to all at all times;
BE IT FURTHER RESOLVED, that the Company convey its sympathies to the family and other
immediate relatives of the late Mr. Fitzsimmons, transmitting to them a copy of this
resolution.
Based upon those facts, the trial court granted the "back pay" claimed by the appellee.
There was no resolution either of the stockholders of the board of directors of the company
authorizing the payment of the salaries of the president or any other officer or employee of
the corporation for the period of the war when the corporation was forced completely to
suspend its business operations and when its officers were interned or virtually held
prisoners by the enemy.
The theory of the appellee, which was sustained by the trial court, is that as long as a
corporation officer with a fixed salary retains the office he is entitled to that salary
notwithstanding his inability to perform his duties. The main case cited by the appellee in
support of his theory is Brown vs. Galvenston Wharf Co., 50 S. W., 126, 128; 92 Tex., 520. In
that case the president of the defendants corporation claimed his salary for a period of
almost eleven months, during which he was on an indefinite leave of absence, and the court
allowed it, holding that "so long as he remained the president of the company, the salary
was an incident to the office, and ran with it for the whole time, although he may have failed
to perform the duties of president for any given part of such time."
If such a sweeping pronouncement is to be applied regardless of whether or not the
corporation was in operation during the period covered by the claim for the salary, as seems
to be contended by the appellee, we must say that we cannot subscribe to it.
We know of no principle of law that would authorize the court to compel a corporation, which
for a long period was not in operation and did not receive any income, to pay the salaries of
its officers during such period, even though they were incapacitated and did not perform any
service. To do so would be tantamount to depriving the corporation or its stockholders of
their property without due process of law.
The resolutions of the stockholders hereinabove quoted are invoked by the appellee to
support the proposition that Fitzsimmons, during his internment, performed certain acts as
president of the corporation, which were ratified and confirmed by the stockholders in their
annual meeting on January 21, 1946. But those acts consisted merely of borrowing money
for himself and the other officers of the corporation and their respective families to enable
them to eke out an existence during their internment. The ratification of those acts by the
stockholders had for its purpose to relieve Fitzsimmons of personal liability for the
obligations thus contracted by him in the name of the company. To say that by thus ratifying
those acts of Fitzsimmons the corporation became obligated to pay his salaries during his
internment aggregating P90,000, would be the height of absurdity.
We are clearly of the opinion that the estate of Fitzsimmons is not entitled to its
counterclaim of P90,000 or any part thereof.
Let judgment be entered modifying that of the trial court to read as follows:

The appellant Atlantic, Gulf and Pacific Company of Manila is ordered to pay to the
administrator the sum of P64,500 upon the retransfer by the latter to the former of the 545
shares of stock purchased by the decedent in 1939.
The administrator is ordered to pay to the said company the sum of P868.67.
The claim of the company against the estate for P63,000 and the counterclaim of the estate
against the company for P90,000 are disapproved.
It is so ordered, without costs.

ENRIQUE RAZON, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and VICENTE B. CHUIDIAN, in his capacity as
Administrator of the Estate of the Deceased JUAN T. CHUIDIAN, respondents.
G.R. No. 74315

March 16, 1992

VICENTE B. CHUIDIAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, ENRIQUE RAZ0N, and E. RAZON, INC., respondents.

GUTIERREZ, JR., J.:

The main issue in these consolidated petitions centers on the ownership of 1,500 shares of
stock in E. Razon, Inc. covered by Stock Certificate No. 003 issued on April 23, 1966 and
registered under the name of Juan T. Chuidian in the books of the corporation. The then
Court of First Instance of Manila, now Regional Trial Court of Manila, declared that Enrique
Razon, the petitioner in G.R. No. 74306 is the owner of the said shares of stock. The then
Intermediate Appellate Court, now Court of Appeals, however, reversed the trial court's
decision and ruled that Juan T. Chuidian, the deceased father of petitioner Vicente B.
Chuidian in G.R. No. 74315 is the owner of the shares of stock. Both parties filed separate
motions for reconsideration. Enrique Razon wanted the appellate court's decision reversed
and the trial court's decision affirmed while Vicente Chuidian asked that all cash and stock
dividends and all the pre-emptive rights accruing to the 1,500 shares of stock be ordered
delivered to him. The appellate court denied both motions. Hence, these petitions.
The relevant Antecedent facts are as follows:
In his complaint filed on June 29, 1971, and amended on November 16, 1971, Vicente B.
Chuidian prayed that defendants Enrique B. Razon, E. Razon, Inc., Geronimo Velasco,
Francisco de Borja, Jose Francisco, Alfredo B. de Leon, Jr., Gabriel Llamas and Luis M. de
Razon be ordered to deliver certificates of stocks representing the shareholdings of the
deceased Juan T. Chuidian in the E. Razon, Inc. with a prayer for an order to restrain the
defendants from disposing of the said shares of stock, for a writ of preliminary attachment v.
properties of defendants having possession of shares of stock and for receivership of the
properties of defendant corporation . . .
xxx

xxx

xxx

In their answer filed on June 18, 1973, defendants alleged that all the shares of stock in the
name of stockholders of record of the corporation were fully paid for by defendant, Razon;
that said shares are subject to the agreement between defendants and incorporators; that
the shares of stock were actually owned and remained in the possession of Razon. Appellees
also alleged . . . that neither the late Juan T. Chuidian nor the appellant had paid any amount
whatsoever for the 1,500 shares of stock in question . . .
xxx

xxx

xxx

The evidence of the plaintiff shown that he is the administrator of the intestate estate of
Juan Telesforo Chuidian in Special Proceedings No. 71054, Court of First Instance of Manila.
Sometime in 1962, Enrique Razon organized the E. Razon, Inc. for the purpose of bidding for
the arrastre services in South Harbor, Manila. The incorporators consisted of Enrique Razon,
Enrique Valles, Luisa M. de Razon, Jose Tuason, Jr., Victor Lim, Jose F. Castro and Salvador
Perez de Tagle.
On April 23, 1966, stock certificate No. 003 for 1,500 shares of stock of defendant
corporation was issued in the name of Juan T. Chuidian.
On the basis of the 1,500 shares of stock, the late Juan T. Chuidian and after him, the
plaintiff-appellant, were elected as directors of E. Razon, Inc. Both of them actually served
and were paid compensation as directors of E. Razon, Inc.
From the time the certificate of stock was issued on April 1966 up to April 1971, Enrique
Razon had not questioned the ownership by Juan T. Chuidian of the shares of stock in
question and had not brought any action to have the certificate of stock over the said shares
cancelled.
The certificate of stock was in the possession of defendant Razon who refused to deliver said
shares to the plaintiff, until the same was surrendered by defendant Razon and deposited in
a safety box in Philippine Bank of Commerce.
Defendants allege that after organizing the E. Razon, Inc., Enrique Razon distributed shares
of stock previously placed in the names of the withdrawing nominal incorporators to some
friends including Juan T. Chuidian
Stock Certificate No. 003 covering 1,500 shares of stock upon instruction of the late
Chuidian on April 23, 1986 was personally delivered by Chuidian on July 1, 1966 to the
Corporate Secretary of Attorney Silverio B. de Leon who was himself an associate of the
Chuidian Law Office (Exhs. C & 11). Since then, Enrique Razon was in possession of said
stock certificate even during the lifetime of the late Chuidian, from the time the late
Chuidian delivered the said stock certificate to defendant Razon until the time (sic) of
defendant Razon. By agreement of the parties (sic) delivered it for deposit with the bank
under the joint custody of the parties as confirmed by the trial court in its order of August 7,
1971.
Thus, the 1,500 shares of stook under Stock Certificate No. 003 were delivered by the late
Chuidian to Enrique because it was the latter who paid for all the subscription on the shares
of stock in the defendant corporation and the understanding was that he (defendant Razon)
was the owner of the said shares of stock and was to have possession thereof until such
time as he was paid therefor by the other nominal incorporators/stockholders (TSN., pp. 4, 8,
10, 24-25, 25-26, 28-31, 31-32, 60, 66-68, July 22, 1980, Exhs. "C", "11", "13" "14"). (Ro11o
74306, pp. 66-68)
In G.R. No. 74306, petitioner Enrique Razon assails the appellate court's decision on its
alleged misapplication of the dead man's statute rule under Section 20(a) Rule 130 of the
Rules of Court. According to him, the "dead man's statute" rule is not applicable to the
instant case. Moreover, the private respondent, as plaintiff in the case did not object to his
oral testimony regarding the oral agreement between him and the deceased Juan T.
Chuidian that the ownership of the shares of stock was actually vested in the petitioner
unless the deceased opted to pay the same; and that the petitioner was subjected to a rigid
cross examination regarding such testimony.

Section 20(a) Rule 130 of the Rules of Court (Section 23 of the Revised Rules on Evidence)
States:
Sec. 20.
Disqualification by reason of interest or relationship The following persons
cannot testify as to matters in which they are interested directly or indirectly, as herein
enumerated.
(a)
Parties or assignors of parties to a case, or persons in whose behalf a case is
prosecuted, against an executor or administrator or other representative of a deceased
person, or against a person of unsound mind, upon a claim or demand against the estate of
such deceased person or against such person of unsound mind, cannot testify as to any
matter of fact accruing before the death of such deceased person or before such person
became of unsound mind." (Emphasis supplied)
xxx

xxx

xxx

The purpose of the rule has been explained by this Court in this wise:
The reason for the rule is that if persons having a claim against the estate of the deceased
or his properties were allowed to testify as to the supposed statements made by him
(deceased person), many would be tempted to falsely impute statements to deceased
persons as the latter can no longer deny or refute them, thus unjustly subjecting their
properties or rights to false or unscrupulous claims or demands. The purpose of the law is to
"guard against the temptation to give false testimony in regard to the transaction in
question on the part of the surviving party." (Tongco v. Vianzon, 50 Phil. 698; Go Chi Gun, et
al. v. Co Cho, et al., 622 [1955])
The rule, however, delimits the prohibition it contemplates in that it is applicable to a case
against the administrator or its representative of an estate upon a claim against the estate
of the deceased person. (See Tongco v. Vianzon, 50 Phil. 698 [1927])
In the instant case, the testimony excluded by the appellate court is that of the defendant
(petitioner herein) to the affect that the late Juan Chuidian, (the father of private respondent
Vicente Chuidian, the administrator of the estate of Juan Chuidian) and the defendant
agreed in the lifetime of Juan Chuidian that the 1,500 shares of stock in E. Razon, Inc. are
actually owned by the defendant unless the deceased Juan Chuidian opted to pay the same
which never happened. The case was filed by the administrator of the estate of the late Juan
Chuidian to recover shares of stock in E. Razon, Inc. allegedly owned by the late Juan T.
Chuidian.
It is clear, therefore, that the testimony of the petitioner is not within the prohibition of the
rule. The case was not filed against the administrator of the estate, nor was it filed upon
claims against the estate.
Furthermore, the records show that the private respondent never objected to the testimony
of the petitioner as regards the true nature of his transaction with the late elder Chuidian.
The petitioner's testimony was subject to cross-examination by the private respondent's
counsel. Hence, granting that the petitioner's testimony is within the prohibition of Section
20(a), Rule 130 of the Rules of Court, the private respondent is deemed to have waived the
rule. We ruled in the case of Cruz v. Court of Appeals (192 SCRA 209 [1990]):
It is also settled that the court cannot disregard evidence which would ordinarily be
incompetent under the rules but has been rendered admissible by the failure of a party to
object thereto. Thus:

. . . The acceptance of an incompetent witness to testify in a civil suit, as well as the

allowance of improper questions that may be put to him while on the stand is a matter
resting in the discretion of the litigant. He may assert his right by timely objection or he may
waive it, expressly or by silence. In any case the option rests with him. Once admitted, the
testimony is in the case for what it is worth and the judge has no power to disregard it for
the sole reason that it could have been excluded, if it had been objected to, nor to strike it
out on its own motion (Emphasis supplied). (Marella v. Reyes, 12 Phil. 1.)
The issue as to whether or not the petitioner's testimony is admissible having been settled,
we now proceed to discuss the fundamental issue on the ownership of the 1,500 shares of
stock in E. Razon, Inc.
E. Razon, Inc. was organized in 1962 by petitioner Enrique Razon for the purpose of
participating in the bidding for the arrastre services in South Harbor, Manila. The
incorporators were Enrique Razon, Enrique Valles, Luisa M. de Razon, Jose Tuazon, Jr., Victor
L. Lim, Jose F. Castro and Salvador Perez de Tagle. The business, however, did not start
operations until 1966. According to the petitioner, some of the incorporators withdrew from
the said corporation. The petitioner then distributed the stocks previously placed in the
names of the withdrawing nominal incorporators to some friends, among them the late Juan
T. Chuidian to whom he gave 1,500 shares of stock. The shares of stock were registered in
the name of Chuidian only as nominal stockholder and with the agreement that the said
shares of stock were owned and held by the petitioner but Chuidian was given the option to
buy the same. In view of this arrangement, Chuidian in 1966 delivered to the petitioner the
stock certificate covering the 1,500 shares of stock of E. Razon, Inc. Since then, the
Petitioner had in his possession the certificate of stock until the time, he delivered it for
deposit with the Philippine Bank of Commerce under the parties' joint custody pursuant to
their agreement as embodied in the trial court's order.
The petitioner maintains that his aforesaid oral testimony as regards the true nature of his
agreement with the late Juan Chuidian on the 1,500 shares of stock of E. Razon, Inc. is
sufficient to prove his ownership over the said 1,500 shares of stock.
The petitioner's contention is not correct.
In the case of Embassy Farms, Inc. v. Court of Appeals (188 SCRA 492 [1990]) we ruled:
. . . For an effective, transfer of shares of stock the mode and manner of transfer as
prescribed by law must be followed (Navea v. Peers Marketing Corp., 74 SCRA 65). As
provided under Section 3 of Batas Pambansa Bilang, 68 otherwise known as the Corporation
Code of the Philippines, shares of stock may be transferred by delivery to the transferee of
the certificate properly indorsed. Title may be vested in the transferee by the delivery of the
duly indorsed certificate of stock (18 C.J.S. 928, cited in Rivera v. Florendo, 144 SCRA 643).
However, no transfer shall be valid, except as between the parties until the transfer is
properly recorded in the books of the corporation (Sec. 63, Corporation Code of the
Philippines; Section 35 of the Corporation Law)
In the instant case, there is no dispute that the questioned 1,500 shares of stock of E. Razon,
Inc. are in the name of the late Juan Chuidian in the books of the corporation. Moreover, the
records show that during his lifetime Chuidian was ellected member of the Board of
Directors of the corporation which clearly shows that he was a stockholder of the
corporation. (See Section 30, Corporation Code) From the point of view of the corporation,
therefore, Chuidian was the owner of the 1,500 shares of stock. In such a case, the petitioner
who claims ownership over the questioned shares of stock must show that the same were
transferred to him by proving that all the requirements for the effective transfer of shares of

stock in accordance with the corporation's by laws, if any, were followed (See Nava v. Peers
Marketing Corporation, 74 SCRA 65 [1976]) or in accordance with the provisions of law.
The petitioner failed in both instances. The petitioner did not present any by-laws which
could show that the 1,500 shares of stock were effectively transferred to him. In the absence
of the corporation's by-laws or rules governing effective transfer of shares of stock, the
provisions of the Corporation Law are made applicable to the instant case.
The law is clear that in order for a transfer of stock certificate to be effective, the certificate
must be properly indorsed and that title to such certificate of stock is vested in the
transferee by the delivery of the duly indorsed certificate of stock. (Section 35, Corporation
Code) Since the certificate of stock covering the questioned 1,500 shares of stock registered
in the name of the late Juan Chuidian was never indorsed to the petitioner, the inevitable
conclusion is that the questioned shares of stock belong to Chuidian. The petitioner's
asseveration that he did not require an indorsement of the certificate of stock in view of his
intimate friendship with the late Juan Chuidian can not overcome the failure to follow the
procedure required by law or the proper conduct of business even among friends. To
reiterate, indorsement of the certificate of stock is a mandatory requirement of law for an
effective transfer of a certificate of stock.
Moreover, the preponderance of evidence supports the appellate court's factual findings that
the shares of stock were given to Juan T. Chuidian for value. Juan T. Chuidian was the legal
counsel who handled the legal affairs of the corporation. We give credence to the testimony
of the private respondent that the shares of stock were given to Juan T. Chuidian in payment
of his legal services to the corporation. Petitioner Razon failed to overcome this testimony.
In G.R. No. 74315, petitioner Vicente B. Chuidian insists that the appellate court's decision
declaring his deceased father Juan T. Chuidian as owner of the 1,500 shares of stock of E.
Razon, Inc. should have included all cash and stock dividends and all the pre-emptive rights
accruing to the said 1,500 shares of stock.
The petition is impressed with merit.
The cash and stock dividends and all the pre-emptive rights are all incidents of stock
ownership.
The rights of stockholders are generally enumerated as follows:
xxx

xxx

xxx

. . . [F]irst, to have a certificate or other evidence of his status as stockholder issued to him;
second, to vote at meetings of the corporation; third, to receive his proportionate share of
the profits of the corporation; and lastly, to participate proportionately in the distribution of
the corporate assets upon the dissolution or winding up. (Purdy's Beach on Private
Corporations, sec. 554) (Pascual v. Del Saz Orozco, 19 Phil. 82, 87)
WHEREFORE, judgment is rendered as follows:
a)
In G.R. No. 74306, the petition is DISMISSED. The questioned decision and resolution
of the then Intermediate Appellate Court, now the Court of Appeals, are AFFIRMED. Costs
against the petitioner.
b)
In G.R. No. 74315, the petition is GRANTED. The questioned Resolution insofar as it
denied the petitioner's motion to clarify the dispositive portion of the decision of the then
Intermediate Appellate Court, now Court of Appeals is REVERSED and SET ASIDE. The

decision of the appellate court is MODIFIED in that all cash and stock dividends as, well as all
pre-emptive rights that have accrued and attached to the 1,500 shares in E. Razon, Inc.,
since 1966 are declared to belong to the estate of Juan T. Chuidian.
SO ORDERED.

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FAUSTO V. CARLOS, defendant-appellant.
M.H. de Joya, Jose Padilla, Vicente Sotto and Monico Mercado for appellant.
Attorney-General Villa-Real and City Fiscal Guevara for appellee.
OSTRAND, J.:
This is an appeal from a decision of the Court of First Instance of the City of Manila finding
the defendant Fausto V. Carlos guilty of the crime of murder and sentencing him to suffer life
imprisonment, with the accessory penalties prescribed by law and with the costs.
It appears from the evidence that the victim of the alleged murder, Dr. Pablo G. Sityar, on
March 3, 1924, in Mary Chiles Hospital, performed a surgical operation upon the defendant's
wife for appendicitis and certain other ailments. She remained in the hospital until the 18th
of the same month, but after her release therefrom she was required to go several times to

the clinic of Doctor Sityar at No. 40 Escolta, for the purpose of dressing the wounds caused
by the operation. On these occasions she was accompanied by her husband, the defendant.
The defendant states that on one of the visits, that of March 20, 1924, Doctor Sityar sent
him out on an errand to buy some medicine, and that while defendant was absent on this
errand Doctor Sityar outraged the wife. The defendant further states that his wife informed
him of the outrage shortly after leaving the clinic. Notwithstanding this it nevertheless
appears that he again went there on March 28th to consult the deceased about some lung
trouble from which he, the defendant, was suffering.. He was given some medical treatment
and appears to have made at least one more visit to the clinic without revealing any special
resentment.
On May 12, 1924, the defendant, suffering from some stomach trouble, entered the
Philippine General Hospital where he remained until May 18, 1924, and where he was under
the care of two other physicians. While in the hospital her received a letter (Exhibit 5) from
Doctor Sityar asking the immediate settlement of the account for the professional services
rendered his wife. Shortly after his release from the hospital the defendant sought an
interview with Doctor Sityar and went to the latter's office several times without finding him
in. On one of these occasions he was asked by an employee of the office, the nurse
Cabaera, if he had come to settle his account, to which the defendant answered that he did
not believe he owed the doctor anything.
In the afternoon of May 26th the defendant again went to the office of the deceased and
found him there alone. According to the evidence of the prosecution, the defendant then,
without any preliminary quarrel between the two, attacked the deceased with a fan-knife
and stabbed him twice. The deceased made an effort to escape but the defendant pursued
him and overtaking him in the hall outside the office, inflicted another wound upon him and
as a consequence if the three wounds he died within a few minutes. The defendants made
his escape but surrendered himself to the Constabulary at Malolos, Bulacan, in the evening
of the following day.
The defendant admits that he killed the deceased but maintains that he did so in selfdefense. He explains that he went to Doctor Sityar's office to protest against the amount of
the fee charged by the doctor and, in any event, to ask for an extension of the time of
payment; that during the conversation upon that subject the deceased insulted him by
telling him that inasmuch as he could not pay the amount demanded he could send his wife
to the office as she was the one treated, and that she could then talk the matter over with
the decease; that this statement was made in such an insolent and contemptuous manner
that the defendant became greatly incensed and remembering the outrage committed upon
his wife, he assumed a threatening attitude and challenged the deceased to go downstairs
with him and there settle the matter; that the deceased thereupon took a pocket-knife from
the center drawer of his desk and attacked the defendant, endeavoring to force him out of
the office; that the defendant, making use of his knowledge of fencing, succeeded in taking
the knife away from the deceased and blinded by fury stabbed him first in the right side of
the breast and then in the epigastric region, and fearing that the deceased might secure
some other weapon or receive assistance from the people in the adjoining room, he again
stabbed him, this time in the back.
The defendant's testimony as to the struggle described is in conflict with the evidence
presented by the prosecution. But assuming that it is true, it is very evident that it fails to
establish a case of self-defense and that, in reality, the only question here to be determined
is whether the defendant is guilty of murder or of simple homicide.
The court below found that the crime was committed with premeditation and therefore
constituted murder. This finding can only be sustained by taking into consideration Exhibit L,
a letter written to the defendant by his wife and siezed by the police in searching his effects

on the day of his arrest. It is dated May 25, 1924, two days before the commission of the
crime and shows that the writer feared that the defendant contemplated resorting to
physical violence in dealing with the deceased.
Counsel for the defendant argues vigorously that the letter was a privileged communication
and therefore not admissible in evidence. The numerical weight of authority is, however, to
the effect that where a privileged communication from one spouse to another comes into
the hands of a third party, whether legally or not, without collusion and voluntary disclosure
on the part of either of the spouses, the privilege is thereby extinguished and the
communication, if otherwise competent, becomes admissible. (28 R.C.L., 530 and authorities
there cited.) Such is the view of the majority of this court.
Professor Wigmore states the rule as follows:
For documents of communication coming into the possession of a third person, a distinction
should obtain, analogous to that already indicated for a client's communications (ante, par.
2325, 2326); i. e., if they were obtained from the addressee by voluntary delivery, they
should still be privileged (for otherwise the privilege could by collusion be practically nullified
for written communications); but if they were obtained surreptitiously or otherwise without
the addressee's consent, the privilege should cease. (5 Wigmore on Evidence, 2nd ed., par.
2339.)
The letter in question was obtained through a search for which no warrant appears to have
been issued and counsel for the defendant cites the causes of Boyd and Boyd vs. United
States (116 U.S., 616) and Silverthorne Lumber Co. and Silverthorne vs. United States (251
U.S., 385) as authority for the proposition that documents obtained by illegal searches of the
defendant's effects are not admissible in evidence in a criminal case. In discussing this point
we can do not better than to quote Professor Wigmore:
The foregoing doctrine (i. e., that the admissibility of evidence is not affected by the
illegality of the means through which the party has been enabled to obtain the evidence)
was never doubted until the appearance of the ill-starred majority opinion of Boyd vs. United
States, in 1885, which has exercised unhealthy influence upon subsequent judicial opinion in
many States.
xxx

xxx

xxx

The progress of this doctrine of Boyd vs. United States was as follows: (a) The Boyd Case
remained unquestioned in its own Court for twenty years; meantime receiving frequent
disfavor in the State Courts (ante, par. 2183). (b) Then in Adams vs. New York, in 1904, it
was virtually repudiated in the Federal Supreme Court, and the orthodox precedents
recorded in the State courts (ante, par. 2183) were expressly approved. (c) Next, after
another twenty years, in 1914 moved this time, not by erroneous history, but by
misplaced sentimentality the Federal Supreme Court, in Weeks vs. United States, reverted
to the original doctrine of the Boyd Case, but with a condition, viz., that the illegality of the
search and seizure should first have been directly litigated and established by a motion,
made before trial, for the return of the things seized; so that, after such a motion, and then
only, the illegality would be noticed in the main trial and the evidence thus obtained would
be excluded. ... (4 Wigmore on Evidence, 2nd ed., par. 2184.)
In the Silverthorne Lumber Co. case the United States Supreme Court adhered to its decision
in the Weeks Case. The doctrine laid down in these cases has been followed by some of the
State courts but has been severely criticized and does not appear to have been generally
accepted. But assuming, without deciding, that it prevails in this jurisdiction it is,
nevertheless, under the decisions in the Weeks and Silverthorne cases, inapplicable to the

present case. Here the illegality of the search and seizure was not "directly litigated and
established by a motion, made before trial, for the return of the things seized."
The letter Exhibit L must, however, be excluded for reasons not discussed in the briefs. The
letter was written by the wife of the defendant and if she had testified at the trial the letter
might have been admissible to impeach her testimony, but she was not put on the witnessstand and the letter was therefore not offered for that purpose. If the defendant either by
answer or otherwise had indicated his assent to the statements contained in the letter it
might also have been admissible, but such is not the case here; the fact that he had the
letter in his possession is no indication of acquiescence or assent on his part. The letter is
therefore nothing but pure hearsay and its admission in evidence violates the constitutional
right of the defendant in a criminal case to be confronted with the witnesses for the
prosecution and have the opportunity to cross-examine them. In this respect there can be no
difference between an ordinary communication and one originally privileged.
The question is radically different from that of the admissibility of testimony of a third party
as to a conversation between a husband and wife overheard by the witness. Testimony of
that character is admissible on the ground that it relates to a conversation in which both
spouses took part and on the further ground that where the defendant has the opportunity
to answer a statement made to him by his spouse and fails to do so, his silence implies
assent. That cannot apply where the statement is contained in an unanswered letter.
The Attorney-General in support of the contrary view quotes Wigmore, as follows:
. . . Express communication is always a proper mode of evidencing knowledge or belief.
Communication to a husband or wife is always receivable to show probable knowledge by
the other (except where they are living apart or are not in good terms), because, while it is
not certain that the one will tell the other, and while the probability is less upon some
subjects than upon others, still there is always some probability, which is all that can be
fairly asked for admissibility. ... (1 Wigmore, id., par. 261.)
This may possibly be good law, though Wigmore cites no authority in support of his
assertion, but as far as we can see it has little or nothing to do with the present case.
As we have already intimated, if Exhibit L is excluded, there is in our opinion not sufficient
evidence in the record to show that the crime was premeditated.
The prosecution maintains that the crime was committed with alevosia. This contention is
based principally on the fact that one of the wounds received by the deceased showed a
downward direction indicating that the deceased was sitting down when the wound was
inflicted. We do not think this fact is sufficient proof. The direction of the wound would
depend largely upon the manner in which the knife was held.
For the reasons stated we find the defendant guilty of simple homicide, without aggravating
or extenuating circumstances.
The sentence appealed from is therefore modified by reducing the penalty to fourteen years,
eight months and one day of reclusion temporal, with the corresponding accessory penalties
and with the costs against the appellant. So ordered.
Johnson, Malcolm, Johns, and Romualdez, JJ., concur.
Separate Opinions
VILLAMOR, J., dissenting:

His Honor, the judge who tried this case, inserts in his decision the testimony of the witness
Lucio Javillonar as follows:
The witness, Lucio Javillonar, testified that he went to the office of the deceased some
minutes before six o'clock in that evening in order to take him, as had previously been
agreed upon between them, so that they might retire together to Pasig, Rizal, where they
resided then; that having noticed that the deceased was busy in his office, talking with a
man about accounts, instead of entering, he stayed at the waiting room, walking from one
end to another, while waiting for that man to go out; that in view of the pitch of the voice in
which the conversation was held between the deceased and his visitor, and what he had
heard, though little as it was, of said conversation, he believes that there was not, nor could
there have been, any change of hard words, dispute or discussion of any kind; that shortly
thereafter, he saw the screen of the door of the deceased's office suddenly open, and the
deceased rush out stained with blood, and followed closely by the accused who then
brandished a steel arm in the right hand; that upon seeing the deceased and overtaking
him, leaning upon one of the screens of the door of a tailor shop a few feet from his office,
slightly inclined to the right, with the arms lowered and about to fall to the floor, the accused
stabbed him on the right side of the chest, thereby inflicting a wound on the right nipple;
and that then the accused descended the staircase to escape away, at the same time that
the deceased was falling to the ground and was being taken by him with the assistance of
other persons from said place to a lancape (a sofa) where he died a few minutes later,
unable to say a word.
In deciding the question as to whether the act committed is murder, with the qualifying
circumstance of treachery, as claimed by the Attorney-General, the trial judge says that the
principal ground of the prosecution for holding that the commission of the crime was
attended by the qualifying circumstance of treachery is a mere inference from the testimony
of Lucio Javillonar, and that the nature of the wounds found on the epigastric region of the
deceased and his back do not mean anything, because they could have been inflicted while
the deceased was standing, seated or inclined.
A careful consideration of the testimony of Lucio Javillonar, as set out in the judgment
appealed from, will show that, according to said eyewitness, the deceased was with his arms
lowered and about to fall to the floor when the accused stabbed him on the right side of the
chest with the weapon he was carrying, thereby inflicting a wound on the right nipple, and
that, according to the doctor who examined the wounds, anyone of them could have caused
the death of the deceased. These being the facts proven, I am of opinion that application
must be made here of the doctrine laid down by this court in the case of United States vs.
Baluyot (40 Phil., 385), wherein it was held that "Even though a deadly attack may be begun
under conditions not exhibiting the feature of alevosia, yet if the assault is continued and
the crime consummated with alevosia, such circumstance may be taken into consideration
as a qualifying factor in the offense of murder." I admit that none of the witnesses who
testified in this case has seen the beginning of the aggression; but it positively appears from
the testimony of the said witness Lucio Javillonar that, notwithstanding that the deceased
was already wounded and about to fall to the floor, he struck him with another mortal blow
with the weapon he was carrying, which shows that the accused consummated the crime
with treachery.
For the foregoing, I am of opinion that the judgment appealed from must be affirmed,
considering the act committed as murder, with the qualifying circumstance of treachery, and
in this sense I dissent from the majority opinion.

UY CHICO, Plaintiff-Appellant, v. THE UNION LIFE ASSURANCE SOCIETY, LIMITED,

ET AL., Defendants-Appellees.
Beaumont & Tenney for Appellant.
Bruce, Lawrence, Ross & Block for Appellees.
SYLLABUS
1. WITNESSES; PRIVILEGED COMMUNICATIONS; ATTORNEY AND CLIENT. Communications
made by a client to his attorney for the purpose of being communicated to others are not
privileged after they have been so communicated, and may be proved by the testimony of
the attorney. This rule applies to a compromise agreement perfected by the attorney with
the authority and under the instructions of his client.
2. ID.; ID.; WAIVER. AS to whether a waiver of the clients privilege personally made in
open court can be withdrawn before acted upon, quaere.
DECISION
TRENT, J. :
An appeal from a judgment dismissing the complaint upon the merits, with costs.
The plaintiff seeks to recover the face value of two insurance policies upon a stock of dry
goods destroyed by fire. It appears that the father of the plaintiff died in 1897, at which time
he was conducting a business under his own name, Uy Layco. The plaintiff and his brother
took over the business and continued it under the same name, "Uy Layco." Sometime before
the date of the fire, the plaintiff purchased his brothers interest in the business and
continued to carry on the business under the fathers name. At the time of the fire "Uy
Layco" was heavily indebted and subsequent thereto the creditors petitioned for the
appointment of an administrator of the estate of the plaintiffs father. During the course of
these proceedings, the plaintiffs attorney surrendered the policies of insurance to the
administrator of the estate, who compromised with the insurance company for one-half their
face value, or P6,000. This money was paid into court and is now being held by the sheriff.
The plaintiff now brings this action, maintaining that the policies and goods insured belong
to him and not to the estate of his deceased father and alleges that he is not bound by the
compromise effected by the administrator of his fathers estate.

The defendant insurance company sought to show that the plaintiff had agreed to the
compromise settlement of the policies, and for that purpose introduced evidence showing
that the plaintiffs attorney had surrendered the policies to the administrator with the
understanding that such a compromise was to be effected. The plaintiff was asked, while on
the witness stand, if he had any objection to his attorneys testifying concerning the
surrender of the policies, to which he replied in the negative. The attorney was then called
for that purpose. Whereupon, counsel for the plaintiff formally withdrew the waiver
previously given by the plaintiff and objected to the testimony of the attorney on the ground
that it was privileged. Counsel, on this appeal, base their argument on the proposition that a
waiver of the clients privilege may be withdrawn at any time before acted upon, and cite in
support thereof Ross v. Great Northern Ry. Co. (101 Minn., 122; 111 N. W., 951). The case of
Natlee Draft Horse Co. v. Cripe & Co. (142 Ky., 810), also appears to sustain their contention.
But a preliminary question suggests itself, Was the testimony in question privileged?
Our practice Act provides: "A lawyer must strictly maintain inviolate the confidence and
preserve the secrets of his client. He shall not be permitted in any court, without the consent
of his client, given in open court, to testify to any facts imparted to him by his client in
professional consultation, or for the purpose of obtaining advice upon legal matters." (Sec.
31, Act No. 190.)
A similar provision is inserted in section 383, No. 4. of the same Act. It will be noted that the
evidence in question concerned the dealings of the plaintiffs attorney with a third person. Of
the very essence of the veil of secrecy which surrounds communications made between
attorney and client, is that such communications are not intended for the information of
third persons or to be acted upon by them, but for the purpose of advising the client as to
his rights. It is evident that a communication made by a client to his attorney for the express
purpose of its being communicated to a third person is essentially inconsistent with the
confidential relation. When the attorney has faithfully carried out his instructions by
delivering the communication to the third person for whom it was intended and the latter
acts upon it, it cannot, by any reasoning whatever, be classified in a legal sense as a
privileged communication between the attorney and his client. It is plain that such a
communication, after reaching the party for whom it was intended at least, is a
communication between the client and a third person, and that the attorney simply occupies
the role of intermediary or agent. We quote from but one case among the many which may
be found upon the point:jgc:chanrobles.com.ph
"The proposition advanced by the respondent and adopted by the trial court, that one, after
fully authorizing his attorney, as his agent, to enter into contract with a third party, and after
such authority has been executed and relied on, may effectively nullify his own and his duly
authorized agents act by closing the attorneys mouth as to the giving of such authority, is
most startling. A perilous facility of fraud and wrong, both upon the attorney and the third
party, would result. The attorney who, on his clients authority, contracts in his behalf,
pledges his reputation and integrity that he binds his client. The third party may well rely on
the assurance of a reputable lawyer that he has authority in fact, though such assurance be
given only by implication from the doing of the act itself. It is with gratification, therefore,
that we find overwhelming weight of authority, against the position assumed by the court
below, both in states where the privilege protecting communications with attorneys is still
regulated by the common law and in those where it is controlled by statute, as in
Wisconsin." (Koeber v. Sommers, 108 Wis., 497; 52 L. R. A., 512.)
Other cases wherein the objection to such evidence on the ground of privilege has been
overruled are: Henderson v. Terry (62 Tex., 281); Shove v. Martin (85 Minn., 29); In re Elliott
(73 Kan., 151); Collins v. Hoffman (62 Wash., 278); Gerhardt v. Tucker (187 Mo., 46). These
cases cover a variety of communications made by an attorney in behalf of his client to third
persons. And cases wherein evidence of the attorney as to compromises entered into by him

on behalf of his client were allowed to be proved by the attorneys testimony are not
wanting. (Williams v. Blumenthal, 27 Wash., 24; Koeber v. Sommers, supra.)
It is manifest that the objection to the testimony of the plaintiffs attorney as to his authority
to compromise was properly overruled. The testimony was to the effect that when the
attorney delivered the policies to the administrator, he understood that there was a
compromise to be effected, and that when he informed the plaintiff of the surrender of the
policies for that purpose the plaintiff made no objection whatever. The evidence is sufficient
to show that the plaintiff acquiesced in the compromise settlement of the policies. Having
agreed to the compromise, he cannot now disavow it and maintain an action for the
recovery of their face value.
For the foregoing reasons the judgment appealed from is affirmed, with costs. So ordered.

TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ, JOSE C.

CONCEPCION, ROGELIO A. VINLUAN, VICTOR P. LAZATIN, and EDUARDO U.
ESCUETA, petitioners, vs. THE HONORABLE SANDIGANBAYAN, First Division,
REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE PRESIDENTIAL
COMMISSION ON GOOD GOVERNMENT, and RAUL S. ROCO, respondents.
[G.R. No. 108113. September 20, 1996]
PARAJA G. HAYUDINI, petitioner, vs. THE SANDIGANBAYAN and THE REPUBLIC OF THE
PHILIPPINES, respondents.
DECISION
KAPUNAN, J.:
These cases touch the very cornerstone of every State's judicial system, upon which the
workings of the contentious and adversarial system in the Philippine legal process are based
- the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary duty of a
counsel and advocate is also what makes the law profession a unique position of trust and
confidence, which distinguishes it from any other calling. In this instance, we have no
recourse but to uphold and strengthen the mantle of protection accorded to the
confidentiality that proceeds from the performance of the lawyer's duty to his client.
The facts of the case are undisputed.
The matters raised herein are an offshoot of the institution of the Complaint on July 31, 1987
before the Sandiganbayan by the Republic of the Philippines, through the Presidential
Commission on Good Government against Eduardo M. Cojuangco, Jr., as one of the principal
defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in
the named corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled "Republic of the
Philippines versus Eduardo Cojuangco, et al."[1]

Among the defendants named in the case are herein petitioners Teodoro Regala, Edgardo J.
Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U.
Escueta and Paraja G. Hayudini, and herein private respondent Raul S. Roco, who all were
then partners of the law firm Angara, Abello, Concepcion, Regala and Cruz Law Offices
(hereinafter referred to as the ACCRA Law Firm). ACCRA Law Firm performed legal services
for its clients, which included, among others, the organization and acquisition of business
associations and/or organizations, with the correlative and incidental services where its
members acted as incorporators, or simply, as stockholders. More specifically, in the
performance of these services, the members of the law firm delivered to its client
documents which substantiate the client's equity holdings, i.e., stock certificates endorsed in
blank representing the shares registered in the client's name, and a blank deed of trust or
assignment covering said shares. In the course of their dealings with their clients, the
members of the law firm acquire information relative to the assets of clients as well as their
personal and business circumstances. As members of the ACCRA Law Firm, petitioners and
private respondent Raul Roco admit that they assisted in the organization and acquisition of
the companies included in Civil Case No. 0033, and in keeping with the office practice,
ACCRA lawyers acted as nominees-stockholders of the said corporations involved in
sequestration proceedings.[2]
On August 20, 1991, respondent Presidential Commission on Good Government (hereinafter
referred to as respondent PCGG) filed a "Motion to Admit Third Amended Complaint" and
"Third Amended Complaint" which excluded private respondent Raul S. Roco from the
complaint in PCGG Case No. 33 as party-defendant.[3] Respondent PCGG based its exclusion
of private respondent Roco as party-defendant on his undertaking that he will reveal the
identity of the principal/s for whom he acted as nominee/stockholder in the companies
involved in PCGG Case No. 33.[4]
Petitioners were included in the Third Amended Complaint on the strength of the following
allegations:
14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion, Teodoro
Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U. Escueta, Paraja G. Hayudini and Raul
Roco of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA) plotted, devised,
schemed. conspired and confederated with each other in setting up, through the use of the
coconut levy funds, the financial and corporate framework and structures that led to the
establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other
coconut levy funded corporations, including the acquisition of San Miguel Corporation shares
and its institutionalization through presidential directives of the coconut monopoly. Through
insidious means and machinations, ACCRA, being the wholly-owned investment arm, ACCRA
Investments Corporation, became the holder of approximately fifteen million shares
representing roughly 3.3% of the total outstanding capital stock of UCPB as of 31 March
1987. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest
stockholders of UCPB which has approximately 1,400,000 shareholders. On the other hand,
corporate books show the name Edgardo J. Angara as holding approximately 3,744 shares as
of February, 1984.[5]
In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers alleged
that:
4.4. Defendants-ACCRA lawyers participation in the acts with which their co-defendants are
charged, was in furtherance of legitimate lawyering.
4.4.1. In the course of rendering professional and legal services to clients, defendantsACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala, Rogelio A. Vinluan and Eduardo U.

Escueta, became holders of shares of stock in the corporations listed under their respective
names in Annex A of the expanded Amended Complaint as incorporating or acquiring
stockholders only and, as such, they do not claim any proprietary interest in the said shares
of stock.
4.5. Defendant ACCRA-lawyer Avelino V. Cruz was one of the incorporators in 1976 of
Mermaid Marketing Corporation, which was organized for legitimate business purposes not
related to the allegations of the expanded Amended Complaint. However, he has long ago
transferred any material interest therein and therefore denies that the shares appearing in
his name in Annex A of the expanded Amended Complaint are his assets.[6]
Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a separate answer
denying the allegations in the complaint implicating him in the alleged ill-gotten wealth.[7]
Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated
October 8, 1991 with Counter-Motion that respondent PCGG similarly grant the same
treatment to them (exclusion as parties-defendants) as accorded private respondent Roco.
[8] The Counter-Motion for dropping petitioners from the complaint was duly set for hearing
on October 18, 1991 in accordance with the requirements of Rule 15 of the Rules of Court.
In its "Comment," respondent PCGG set the following conditions precedent for the exclusion
of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of
documents substantiating the lawyer-client relationship; and (c) the submission of the deeds
of assignments petitioners executed in favor of its clients covering their respective
shareholdings.[9]
Consequently, respondent PCGG presented supposed proof to substantiate compliance by
private respondent Roco of the conditions precedent to warrant the latter's exclusion as
party-defendant in PCGG Case No. 33, to wit: (a) Letter to respondent PCGG of the counsel of
respondent Roco dated May 24, 1989 reiterating a previous request for reinvestigation by
the PCGG in PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed by private
respondent Roco as Attachment to the letter aforestated in (a); and (c) Letter of the Roco,
Bunag, and Kapunan Law Offices dated September 21, 1988 to the respondent PCGG in
behalf of private respondent Roco originally requesting the reinvestigation and/or reexamination of the evidence of the PCGG against Roco in its Complaint in PCGG Case No. 33.
[10]
It is noteworthy that during said proceedings, private respondent Roco did not refute
petitioners' contention that he did actually not reveal the identity of the client involved in
PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for whom he
acted as nominee-stockholder.[11]
On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein
questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to
comply with the conditions required by respondent PCGG. It held:
x x x.
ACCRA lawyers may take the heroic stance of not revealing the identity of the client for
whom they have acted, i.e. their principal, and that will be their choice. But until they do
identify their clients, considerations of whether or not the privilege claimed by the ACCRA
lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse
themselves from the consequences of their acts until they have begun to establish the basis
for recognizing the privilege; the existence and identity of the client.

This is what appears to be the cause for which they have been impleaded by the PCGG as
defendants herein.
5. The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco
has apparently identified his principal, which revelation could show the lack of cause against
him. This in turn has allowed the PCGG to exercise its power both under the rules of Agency
and under Section 5 of E.O. No. 14-A in relation to the Supreme Court's ruling in Republic v.
Sandiganbayan (173 SCRA 72).
The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by
Roco; full disclosure in exchange for exclusion from these proceedings (par. 7, PCGG's
COMMENT dated November 4, 1991). The ACCRA lawyers have preferred not to make the
disclosures required by the PCGG.
The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as party
defendants. In the same vein, they cannot compel the PCGG to be accorded the same
treatment accorded to Roco.
Neither can this Court.
WHEREFORE, the Counter Motion dated October 8, 1991 filed by the ACCRA lawyers and
joined in by Atty. Paraja G. Hayudini for the same treatment by the PCGG as accorded to
Raul S. Roco is DENIED for lack of merit.[12]
ACCRA lawyers moved for a reconsideration of the above resolution but the same was
denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for
certiorari, docketed as G.R. No. 105938, invoking the following grounds:
I
The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners ACCRA
lawyers who undisputably acted as lawyers in serving as nominee-stockholders, to the strict
application of the law of agency.
II
The Honorable Sandiganbayan committed grave abuse of discretion in not considering
petitioners ACCRA lawyers and Mr. Roco as similarly situated and, therefore, deserving of
equal treatment.
1. There is absolutely no evidence that Mr. Roco had revealed, or had undertaken to reveal,
the identities of the client(s) for whom he acted as nominee-stockholder.
2. Even assuming that Mr. Roco had revealed, or had undertaken to reveal, the identities of
the client(s), the disclosure does not constitute a substantial distinction as would make the
classification reasonable under the equal protection clause.
3. Respondent Sandiganbayan sanctioned favoritism and undue preference in favor of Mr.
Roco in violation of the equal protection clause.
III
The Honorable Sandiganbayan committed grave abuse of discretion in not holding that,
under the facts of this case, the attorney-client privilege prohibits petitioners ACCRA lawyers

from revealing the identity of their client(s) and the other information requested by the
PCGG.
1. Under the peculiar facts of this case, the attorney-client privilege includes the identity of
the client(s).
2. The factual disclosures required by the PCGG are not limited to the identity of petitioners
ACCRA lawyers' alleged client(s) but extend to other privileged matters.
IV
The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that the
dropping of party-defendants by the PCGG must be based on reasonable and just grounds
and with due consideration to the constitutional right of petitioners ACCRA lawyers to the
equal protection of the law.
Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of the March
18, 1991 resolution which was denied by respondent Sandiganbayan. Thus, he filed a
separate petition for certiorari, docketed as G.R. No. 108113, assailing respondent
Sandiganbayan's resolution on essentially the same grounds averred by petitioners in G.R.
No. 105938.
Petitioners contend that the exclusion of respondent Roco as party-defendant in PCGG Case
No. 33 grants him a favorable treatment, on the pretext of his alleged undertaking to divulge
the identity of his client, giving him an advantage over them who are in the same footing as
partners in the ACCRA law firm. Petitioners further argue that even granting that such an
undertaking has been assumed by private respondent Roco, they are prohibited from
revealing the identity of their principal under their sworn mandate and fiduciary duty as
lawyers to uphold at all times the confidentiality of information obtained during such lawyerclient relationship.
Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that the
revelation of the identity of the client is not within the ambit of the lawyer-client
confidentiality privilege, nor are the documents it required (deeds of assignment) protected,
because they are evidence of nominee status.[13]
In his comment, respondent Roco asseverates that respondent PCGG acted correctly in
excluding him as party-defendant because he "(Roco) has not filed an Answer. PCGG had
therefore the right to dismiss Civil Case No. 0033 as to Roco `without an order of court by
filing a notice of dismissal,'"[14] and he has undertaken to identify his principal.[15]
Petitioners' contentions are impressed with merit.
I
It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force
them to disclose the identity of their clients. Clearly, respondent PCGG is not after
petitioners but the bigger fish as they say in street parlance. This ploy is quite clear from the
PCGGs willingness to cut a deal with petitioners -- the names of their clients in exchange for
exclusion from the complaint. The statement of the Sandiganbayan in its questioned
resolution dated March 18, 1992 is explicit:
ACCRA lawyers may take the heroic stance of not revealing the identity of the client for
whom they have acted, i.e., their principal, and that will be their choice. But until they do
identify their clients, considerations of whether or not the privilege claimed by the ACCRA

lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse
themselves from the consequences of their acts until they have begun to establish the basis
for recognizing the privilege; the existence and identity of the client.
This is what appears to be the cause for which they have been impleaded by the PCGG as
defendants herein. (Underscoring ours)
In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division, entitled
Primavera Farms, Inc., et al. vs. Presidential Commission on Good Government respondent
PCGG, through counsel Mario Ongkiko, manifested at the hearing on December 5, 1991 that
the PCGG wanted to establish through the ACCRA that their so called client is Mr. Eduardo
Cojuangco; that it was Mr. Eduardo Cojuangco who furnished all the monies to those
subscription payments in corporations included in Annex A of the Third Amended Complaint;
that the ACCRA lawyers executed deeds of trust and deeds of assignment, some in the name
of particular persons, some in blank.
We quote Atty. Ongkiko:
ATTY. ONGKIKO:
With the permission of this Hon. Court. I propose to establish through these ACCRA lawyers
that, one, their so-called client is Mr. Eduardo Cojuangco. Second, it was Mr. Eduardo
Cojuangco who furnished all the monies to these subscription payments of these
corporations who are now the petitioners in this case. Third, that these lawyers executed
deeds of trust, some in the name of a particular person, some in blank. Now, these blank
deeds are important to our claim that some of the shares are actually being held by the
nominees for the late President Marcos. Fourth, they also executed deeds of assignment and
some of these assignments have also blank assignees. Again, this is important to our claim
that some of the shares are for Mr. Cojuangco and some are for Mr. Marcos. Fifth, that most
of these corporations are really just paper corporations. Why do we say that? One: There are
no really fixed sets of officers, no fixed sets of directors at the time of incorporation and
even up to 1986, which is the crucial year. And not only that, they have no permits from the
municipal authorities in Makati. Next, actually all their addresses now are care of Villareal
Law Office. They really have no address on records. These are some of the principal things
that we would ask of these nominees stockholders, as they called themselves.[16]
It would seem that petitioners are merely standing in for their clients as defendants in the
complaint. Petitioners are being prosecuted solely on the basis of activities and services
performed in the course of their duties as lawyers. Quite obviously, petitioners inclusion as
co-defendants in the complaint is merely being used as leverage to compel them to name
their clients and consequently to enable the PCGG to nail these clients. Such being the case,
respondent PCGG has no valid cause of action as against petitioners and should exclude
them from the Third Amended Complaint.
II
The nature of lawyer-client relationship is premised on the Roman Law concepts of locatio
conductio operarum (contract of lease of services) where one person lets his services and
another hires them without reference to the object of which the services are to be
performed, wherein lawyers' services may be compensated by honorarium or for hire,[17]
and mandato (contract of agency) wherein a friend on whom reliance could be placed makes
a contract in his name, but gives up all that he gained by the contract to the person who
requested him.[18] But the lawyer-client relationship is more than that of the principal-agent
and lessor-lessee.

In modern day perception of the lawyer-client relationship, an attorney is more than a mere
agent or servant, because he possesses special powers of trust and confidence reposed on
him by his client.[19] A lawyer is also as independent as the judge of the court, thus his
powers are entirely different from and superior to those of an ordinary agent.[20] Moreover,
an attorney also occupies what may be considered as a "quasi-judicial office" since he is in
fact an officer of the Court[21] and exercises his judgment in the choice of courses of action
to be taken favorable to his client.
Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties
that breathe life into it, among those, the fiduciary duty to his client which is of a very
delicate, exacting and confidential character, requiring a very high degree of fidelity and
good faith,[22] that is required by reason of necessity and public interest[23] based on the
hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal
to the administration of justice.[24]
It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any
other professional in society. This conception is entrenched and embodies centuries of
established and stable tradition.[25] In Stockton v. Ford,[26] the U.S. Supreme Court held:
There are few of the business relations of life involving a higher trust and confidence than
that of attorney and client, or generally speaking, one more honorably and faithfully
discharged; few more anxiously guarded by the law, or governed by the sterner principles of
morality and justice; and it is the duty of the court to administer them in a corresponding
spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be
used to the detriment or prejudice of the rights of the party bestowing it.[27]
In our jurisdiction, this privilege takes off from the old Code of Civil Procedure enacted by the
Philippine Commission on August 7, 1901. Section 383 of the Code specifically forbids
counsel, without authority of his client to reveal any communication made by the client to
him or his advice given thereon in the course of professional employment.[28] Passed on
into various provisions of the Rules of Court, the attorney-client privilege, as currently
worded provides:
Sec. 24. Disqualification by reason of privileged communication. - The following persons
cannot testify as to matters learned in confidence in the following cases:
xxx
An attorney cannot, without the consent of his client, be examined as to any communication
made by the client to him, or his advice given thereon in the course of, or with a view to,
professional employment, can an attorneys secretary, stenographer, or clerk be examined,
without the consent of the client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity.[29]
Further, Rule 138 of the Rules of Court states:
Sec. 20. It is the duty of an attorney:
(e) to maintain inviolate the confidence, and at every peril to himself, to preserve the
secrets of his client, and to accept no compensation in connection with his clients business
except from him or with his knowledge and approval.
This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which
provides that:

Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the
trust and confidence reposed in him.
Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client:
The lawyer owes "entire devotion to the interest of the client, warm zeal in the maintenance
and defense of his rights and the exertion of his utmost learning and ability," to the end that
nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear
of judicial disfavor or public popularity should restrain him from the full discharge of his duty.
In the judicial forum the client is entitled to the benefit of any and every remedy and
defense that is authorized by the law of the land, and he may expect his lawyer to assert
every such remedy or defense. But it is steadfastly to be borne in mind that the great trust
of the lawyer is to be performed within and not without the bounds of the law. The office of
attorney does not permit, much less does it demand of him for any client, violation of law or
any manner of fraud or chicanery. He must obey his own conscience and not that of his
client.
Considerations favoring confidentiality in lawyer-client relationships are many and serve
several constitutional and policy concerns. In the constitutional sphere, the privilege gives
flesh to one of the most sacrosanct rights available to the accused, the right to counsel. If a
client were made to choose between legal representation without effective communication
and disclosure and legal representation with all his secrets revealed then he might be
compelled, in some instances, to either opt to stay away from the judicial system or to lose
the right to counsel. If the price of disclosure is too high, or if it amounts to self
incrimination, then the flow of information would be curtailed thereby rendering the right
practically nugatory. The threat this represents against another sacrosanct individual right,
the right to be presumed innocent is at once self-evident.
Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a
whole spectrum of legal options which would otherwise be circumscribed by limited
information engendered by a fear of disclosure. An effective lawyer-client relationship is
largely dependent upon the degree of confidence which exists between lawyer and client
which in turn requires a situation which encourages a dynamic and fruitful exchange and
flow of information. It necessarily follows that in order to attain effective representation, the
lawyer must invoke the privilege not as a matter of option but as a matter of duty and
professional responsibility.
The question now arises whether or not this duty may be asserted in refusing to disclose the
name of petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining
in the instant case, the answer must be in the affirmative.
As a matter of public policy, a clients identity should not be shrouded in mystery.[30] Under
this premise, the general rule in our jurisdiction as well as in the United States is that a
lawyer may not invoke the privilege and refuse to divulge the name or identity of his client.
[31]
The reasons advanced for the general rule are well established.
First, the court has a right to know that the client whose privileged information is sought to
be protected is flesh and blood.
Second, the privilege begins to exist only after the attorney-client relationship has been
established. The attorney-client privilege does not attach until there is a client.
Third, the privilege generally pertains to the subject matter of the relationship.

Finally, due process considerations require that the opposing party should, as a general rule,
know his adversary. A party suing or sued is entitled to know who his opponent is.[32] He
cannot be obliged to grope in the dark against unknown forces.[33]
Notwithstanding these considerations, the general rule is however qualified by some
important exceptions.
1) Client identity is privileged where a strong probability exists that revealing the clients
name would implicate that client in the very activity for which he sought the lawyers advice.
In Ex-Parte Enzor,[34] a state supreme court reversed a lower court order requiring a lawyer
to divulge the name of her client on the ground that the subject matter of the relationship
was so closely related to the issue of the clients identity that the privilege actually attached
to both. In Enzor, the unidentified client, an election official, informed his attorney in
confidence that he had been offered a bribe to violate election laws or that he had accepted
a bribe to that end. In her testimony, the attorney revealed that she had advised her client
to count the votes correctly, but averred that she could not remember whether her client
had been, in fact, bribed. The lawyer was cited for contempt for her refusal to reveal his
clients identity before a grand jury. Reversing the lower courts contempt orders, the state
supreme court held that under the circumstances of the case, and under the exceptions
described above, even the name of the client was privileged.
U.S. v. Hodge and Zweig,[35] involved the same exception, i.e. that client identity is
privileged in those instances where a strong probability exists that the disclosure of the
client's identity would implicate the client in the very criminal activity for which the lawyers
legal advice was obtained.
The Hodge case involved federal grand jury proceedings inquiring into the activities of the
Sandino Gang, a gang involved in the illegal importation of drugs in the United States. The
respondents, law partners, represented key witnesses and suspects including the leader of
the gang, Joe Sandino.
In connection with a tax investigation in November of 1973, the IRS issued summons to
Hodge and Zweig, requiring them to produce documents and information regarding payment
received by Sandino on behalf of any other person, and vice versa. The lawyers refused to
divulge the names. The Ninth Circuit of the United States Court of Appeals, upholding nondisclosure under the facts and circumstances of the case, held:
A clients identity and the nature of that clients fee arrangements may be privileged where
the person invoking the privilege can show that a strong probability exists that disclosure of
such information would implicate that client in the very criminal activity for which legal
advice was sought Baird v. Koerner, 279 F.2d at 680. While in Baird Owe enunciated this rule
as a matter of California law, the rule also reflects federal law. Appellants contend that the
Baird exception applies to this case.
The Baird exception is entirely consonant with the principal policy behind the attorney-client
privilege. In order to promote freedom of consultation of legal advisors by clients, the
apprehension of compelled disclosure from the legal advisors must be removed; hence, the
law must prohibit such disclosure except on the clients consent. 8 J. Wigmore, supra sec.
2291, at 545. In furtherance of this policy, the clients identity and the nature of his fee
arrangements are, in exceptional cases, protected as confidential communications.[36]
2) Where disclosure would open the client to civil liability, his identity is privileged. For
instance, the peculiar facts and circumstances of Neugass v. Terminal Cab Corporation,[37]

prompted the New York Supreme Court to allow a lawyers claim to the effect that he could
not reveal the name of his client because this would expose the latter to civil litigation.
In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was riding,
owned by respondent corporation, collided with a second taxicab, whose owner was
unknown. Plaintiff brought action both against defendant corporation and the owner of the
second cab, identified in the information only as John Doe. It turned out that when the
attorney of defendant corporation appeared on preliminary examination, the fact was
somehow revealed that the lawyer came to know the name of the owner of the second cab
when a man, a client of the insurance company, prior to the institution of legal action, came
to him and reported that he was involved in a car accident. It was apparent under the
circumstances that the man was the owner of the second cab. The state supreme court held
that the reports were clearly made to the lawyer in his professional capacity. The court said:
That his employment came about through the fact that the insurance company had hired
him to defend its policyholders seems immaterial. The attorney in such cases is clearly the
attorney for the policyholder when the policyholder goes to him to report an occurrence
contemplating that it would be used in an action or claim against him.[38]
x x x xxx xxx.
All communications made by a client to his counsel, for the purpose of professional advice or
assistance, are privileged, whether they relate to a suit pending or contemplated, or to any
other matter proper for such advice or aid; x x x And whenever the communication made,
relates to a matter so connected with the employment as attorney or counsel as to afford
presumption that it was the ground of the address by the client, then it is privileged from
disclosure. xxx.
It appears... that the name and address of the owner of the second cab came to the attorney
in this case as a confidential communication. His client is not seeking to use the courts, and
his address cannot be disclosed on that theory, nor is the present action pending against
him as service of the summons on him has not been effected. The objections on which the
court reserved decision are sustained.[39]
In the case of Matter of Shawmut Mining Company,[40] the lawyer involved was required by
a lower court to disclose whether he represented certain clients in a certain transaction. The
purpose of the courts request was to determine whether the unnamed persons as interested
parties were connected with the purchase of properties involved in the action. The lawyer
refused and brought the question to the State Supreme Court. Upholding the lawyers refusal
to divulge the names of his clients the court held:
If it can compel the witness to state, as directed by the order appealed from, that he
represented certain persons in the purchase or sale of these mines, it has made progress in
establishing by such evidence their version of the litigation. As already suggested, such
testimony by the witness would compel him to disclose not only that he was attorney for
certain people, but that, as the result of communications made to him in the course of such
employment as such attorney, he knew that they were interested in certain transactions. We
feel sure that under such conditions no case has ever gone to the length of compelling an
attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature
of the transactions to which it related, when such information could be made the basis of a
suit against his client.[41]
3) Where the governments lawyers have no case against an attorneys client unless, by
revealing the clients name, the said name would furnish the only link that would form the

chain of testimony necessary to convict an individual of a crime, the clients name is

privileged.
In Baird vs Korner,[42] a lawyer was consulted by the accountants and the lawyer of certain
undisclosed taxpayers regarding steps to be taken to place the undisclosed taxpayers in a
favorable position in case criminal charges were brought against them by the U.S. Internal
Revenue Service (IRS).
It appeared that the taxpayers returns of previous years were probably incorrect and the
taxes understated. The clients themselves were unsure about whether or not they violated
tax laws and sought advice from Baird on the hypothetical possibility that they had. No
investigation was then being undertaken by the IRS of the taxpayers. Subsequently, the
attorney of the taxpayers delivered to Baird the sum of $12,706.85, which had been
previously assessed as the tax due, and another amount of money representing his fee for
the advice given. Baird then sent a check for $12,706.85 to the IRS in Baltimore, Maryland,
with a note explaining the payment, but without naming his clients. The IRS demanded that
Baird identify the lawyers, accountants, and other clients involved. Baird refused on the
ground that he did not know their names, and declined to name the attorney and
accountants because this constituted privileged communication. A petition was filed for the
enforcement of the IRS summons. For Bairds repeated refusal to name his clients he was
found guilty of civil contempt. The Ninth Circuit Court of Appeals held that, a lawyer could
not be forced to reveal the names of clients who employed him to pay sums of money to the
government voluntarily in settlement of undetermined income taxes, unsued on, and with no
government audit or investigation into that clients income tax liability pending. The court
emphasized the exception that a clients name is privileged when so much has been revealed
concerning the legal services rendered that the disclosure of the clients identity exposes him
to possible investigation and sanction by government agencies. The Court held:
The facts of the instant case bring it squarely within that exception to the general rule. Here
money was received by the government, paid by persons who thereby admitted they had
not paid a sufficient amount in income taxes some one or more years in the past. The names
of the clients are useful to the government for but one purpose - to ascertain which
taxpayers think they were delinquent, so that it may check the records for that one year or
several years. The voluntary nature of the payment indicates a belief by the taxpayers that
more taxes or interest or penalties are due than the sum previously paid, if any. It indicates a
feeling of guilt for nonpayment of taxes, though whether it is criminal guilt is undisclosed.
But it may well be the link that could form the chain of testimony necessary to convict an
individual of a federal crime. Certainly the payment and the feeling of guilt are the reasons
the attorney here involved was employed - to advise his clients what, under the
circumstances, should be done.[43]
Apart from these principal exceptions, there exist other situations which could qualify as
exceptions to the general rule.
For example, the content of any client communication to a lawyer lies within the privilege if
it is relevant to the subject matter of the legal problem on which the client seeks legal
assistance.[44] Moreover, where the nature of the attorney-client relationship has been
previously disclosed and it is the identity which is intended to be confidential, the identity of
the client has been held to be privileged, since such revelation would otherwise result in
disclosure of the entire transaction.[45]
Summarizing these exceptions, information relating to the identity of a client may fall within
the ambit of the privilege when the clients name itself has an independent significance, such
that disclosure would then reveal client confidences.[46]

The circumstances involving the engagement of lawyers in the case at bench, therefore,
clearly reveal that the instant case falls under at least two exceptions to the general rule.
First, disclosure of the alleged client's name would lead to establish said client's connection
with the very fact in issue of the case, which is privileged information, because the privilege,
as stated earlier, protects the subject matter or the substance (without which there would be
no attorney-client relationship).
The link between the alleged criminal offense and the legal advice or legal service sought
was duly established in the case at bar, by no less than the PCGG itself. The key lies in the
three specific conditions laid down by the PCGG which constitutes petitioners ticket to nonprosecution should they accede thereto:
(a) the disclosure of the identity of its clients;
(b) submission of documents substantiating the lawyer-client relationship; and
(c) the submission of the deeds of assignment petitioners executed in favor of their clients
covering their respective shareholdings.
From these conditions, particularly the third, we can readily deduce that the clients indeed
consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate
structure, framework and set-up of the corporations in question. In turn, petitioners gave
their professional advice in the form of, among others, the aforementioned deeds of
assignment covering their clients shareholdings.
There is no question that the preparation of the aforestated documents was part and parcel
of petitioners legal service to their clients. More important, it constituted an integral part of
their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their
clients would implicate them in the very activity for which legal advice had been sought, i.e.,
the alleged accumulation of ill-gotten wealth in the aforementioned corporations.
Furthermore, under the third main exception, revelation of the client's name would obviously
provide the necessary link for the prosecution to build its case, where none otherwise exists.
It is the link, in the words of Baird, that would inevitably form the chain of testimony
necessary to convict the (client) of a... crime."[47]
An important distinction must be made between a case where a client takes on the services
of an attorney for illicit purposes, seeking advice about how to go around the law for the
purpose of committing illegal activities and a case where a client thinks he might have
previously committed something illegal and consults his attorney about it. The first case
clearly does not fall within the privilege because the same cannot be invoked for purposes
illegal. The second case falls within the exception because whether or not the act for which
the advice turns out to be illegal, his name cannot be used or disclosed if the disclosure
leads to evidence, not yet in the hands of the prosecution, which might lead to possible
action against him.
These cases may be readily distinguished, because the privilege cannot be invoked or used
as a shield for an illegal act, as in the first example; while the prosecution may not have a
case against the client in the second example and cannot use the attorney client
relationship to build up a case against the latter. The reason for the first rule is that it is not
within the professional character of a lawyer to give advice on the commission of a crime.
[48] The reason for the second has been stated in the cases above discussed and are
founded on the same policy grounds for which the attorney-client privilege, in general,
exists.

In Matter of Shawmut Mining Co., supra, the appellate court therein stated that "under such
conditions no case has ever yet gone to the length of compelling an attorney, at the
instance of a hostile litigant, to disclose not only his retainer, but the nature of the
transactions to which it related, when such information could be made the basis of a suit
against his client.[49] "Communications made to an attorney in the course of any personal
employment, relating to the subject thereof, and which may be supposed to be drawn out in
consequence of the relation in which the parties stand to each other, are under the seal of
confidence and entitled to protection as privileged communications."[50] Where the
communicated information, which clearly falls within the privilege, would suggest possible
criminal activity but there would be not much in the information known to the prosecution
which would sustain a charge except that revealing the name of the client would open up
other privileged information which would substantiate the prosecutions suspicions, then the
clients identity is so inextricably linked to the subject matter itself that it falls within the
protection. The Baird exception, applicable to the instant case, is consonant with the
principal policy behind the privilege, i.e., that for the purpose of promoting freedom of
consultation of legal advisors by clients, apprehension of compelled disclosure from
attorneys must be eliminated. This exception has likewise been sustained in In re Grand Jury
Proceedings[51] and Tillotson v. Boughner.[52] What these cases unanimously seek to avoid
is the exploitation of the general rule in what may amount to a fishing expedition by the
prosecution.
There are, after all, alternative sources of information available to the prosecutor which do
not depend on utilizing a defendant's counsel as a convenient and readily available source of
information in the building of a case against the latter. Compelling disclosure of the client's
name in circumstances such as the one which exists in the case at bench amounts to
sanctioning fishing expeditions by lazy prosecutors and litigants which we cannot and will
not countenance. When the nature of the transaction would be revealed by disclosure of an
attorney's retainer, such retainer is obviously protected by the privilege.[53] It follows that
petitioner attorneys in the instant case owe their client(s) a duty and an obligation not to
disclose the latter's identity which in turn requires them to invoke the privilege.
In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the
prosecution has a case against their clients, the latter's case should be built upon evidence
painstakingly gathered by them from their own sources and not from compelled testimony
requiring them to reveal the name of their clients, information which unavoidably reveals
much about the nature of the transaction which may or may not be illegal. The logical nexus
between name and nature of transaction is so intimate in this case that it would be difficult
to simply dissociate one from the other. In this sense, the name is as much "communication"
as information revealed directly about the transaction in question itself, a communication
which is clearly and distinctly privileged. A lawyer cannot reveal such communication
without exposing himself to charges of violating a principle which forms the bulwark of the
entire attorney-client relationship.
The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict
liability for negligence on the former. The ethical duties owing to the client, including
confidentiality, loyalty, competence, diligence as well as the responsibility to keep clients
informed and protect their rights to make decisions have been zealously sustained. In
Milbank, Tweed, Hadley and McCloy v. Boon,[54] the US Second District Court rejected the
plea of the petitioner law firm that it breached its fiduciary duty to its client by helping the
latter's former agent in closing a deal for the agent's benefit only after its client hesitated in
proceeding with the transaction, thus causing no harm to its client. The Court instead ruled
that breaches of a fiduciary relationship in any context comprise a special breed of cases
that often loosen normally stringent requirements of causation and damages, and found in
favor of the client.

To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley P.A. v.
Scheller[55] requiring strict obligation of lawyers vis-a-vis clients. In this case, a contingent
fee lawyer was fired shortly before the end of completion of his work, and sought payment
quantum meruit of work done. The court, however, found that the lawyer was fired for cause
after he sought to pressure his client into signing a new fee agreement while settlement
negotiations were at a critical stage. While the client found a new lawyer during the
interregnum, events forced the client to settle for less than what was originally offered.
Reiterating the principle of fiduciary duty of lawyers to clients in Meinhard v. Salmon[56]
famously attributed to Justice Benjamin Cardozo that "Not honesty alone, but the punctilio of
an honor the most sensitive, is then the standard of behavior," the US Court found that the
lawyer involved was fired for cause, thus deserved no attorney's fees at all.
The utmost zeal given by Courts to the protection of the lawyer-client confidentiality
privilege and lawyer's loyalty to his client is evident in the duration of the protection, which
exists not only during the relationship, but extends even after the termination of the
relationship.[57]
Such are the unrelenting duties required of lawyers vis-a-vis their clients because the law,
which the lawyers are sworn to uphold, in the words of Oliver Wendell Holmes,[58] "xxx is an
exacting goddess, demanding of her votaries in intellectual and moral discipline." The Court,
no less, is not prepared to accept respondents position without denigrating the noble
profession that is lawyering, so extolled by Justice Holmes in this wise:
Every calling is great when greatly pursued. But what other gives such scope to realize the
spontaneous energy of one's soul? In what other does one plunge so deep in the stream of
life - so share its passions its battles, its despair, its triumphs, both as witness and actor? x x
x But that is not all. What a subject is this in which we are united - this abstraction called the
Law, wherein as in a magic mirror, we see reflected, not only in our lives, but the lives of all
men that have been. When I think on this majestic theme my eyes dazzle. If we are to speak
of the law as our mistress, we who are here know that she is a mistress only to be won with
sustained and lonely passion - only to be won by straining all the faculties by which man is
likened to God.
We have no choice but to uphold petitioners' right not to reveal the identity of their clients
under pain of the breach of fiduciary duty owing to their clients, because the facts of the
instant case clearly fall within recognized exceptions to the rule that the clients name is not
privileged information.
If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the
circumstances obtaining here does not cover the identity of the client, then it would expose
the lawyers themselves to possible litigation by their clients in view of the strict fiduciary
responsibility imposed on them in the exercise of their duties.
The complaint in Civil Case No. 0033 alleged that the defendants therein, including herein
petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up through the
use of coconut levy funds the financial and corporate framework and structures that led to
the establishment of UCPB, UNICOM and others and that through insidious means and
machinations, ACCRA, using its wholly-owned investment arm, ACCRA Investments
Corporation, became the holder of approximately fifteen million shares representing roughly
3.3% of the total capital stock of UCPB as of 31 March 1987. The PCGG wanted to establish
through the ACCRA lawyers that Mr. Cojuangco is their client and it was Cojuangco who
furnished all the monies to the subscription payment; hence, petitioners acted as dummies,
nominees and/or agents by allowing themselves, among others, to be used as instrument in
accumulating ill-gotten wealth through government concessions, etc., which acts constitute

gross abuse of official position and authority, flagrant breach of public trust, unjust
enrichment, violation of the Constitution and laws of the Republic of the Philippines.
By compelling petitioners, not only to reveal the identity of their clients, but worse, to
submit to the PCGG documents substantiating the client-lawyer relationship, as well as
deeds of assignment petitioners executed in favor of its clients covering their respective
shareholdings, the PCGG would exact from petitioners a link that would inevitably form the
chain of testimony necessary to convict the (client) of a crime.
III
In response to petitioners' last assignment of error, respondents allege that the private
respondent was dropped as party defendant not only because of his admission that he acted
merely as a nominee but also because of his undertaking to testify to such facts and
circumstances "as the interest of truth may require, which includes... the identity of the
principal."[59]
First, as to the bare statement that private respondent merely acted as a lawyer and
nominee, a statement made in his out-of-court settlement with the PCGG, it is sufficient to
state that petitioners have likewise made the same claim not merely out-of- court but also in
their Answer to plaintiff's Expanded Amended Complaint, signed by counsel, claiming that
their acts were made in furtherance of "legitimate lawyering.[60] Being "similarly situated"
in this regard, public respondents must show that there exist other conditions and
circumstances which would warrant their treating the private respondent differently from
petitioners in the case at bench in order to evade a violation of the equal protection clause
of the Constitution.
To this end, public respondents contend that the primary consideration behind their decision
to sustain the PCGG's dropping of private respondent as a defendant was his promise to
disclose the identities of the clients in question. However, respondents failed to show - and
absolutely nothing exists in the records of the case at bar - that private respondent actually
revealed the identity of his client(s) to the PCGG. Since the undertaking happens to be the
leitmotif of the entire arrangement between Mr. Roco and the PCGG, an undertaking which is
so material as to have justified PCGG's special treatment exempting the private respondent
from prosecution, respondent Sandiganbayan should have required proof of the undertaking
more substantial than a "bare assertion" that private respondent did indeed comply with the
undertaking. Instead, as manifested by the PCGG, only three documents were submitted for
the purpose, two of which were mere requests for re-investigation and one simply disclosed
certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal. These
were clients to whom both petitioners and private respondent rendered legal services while
all of them were partners at ACCRA, and were not the clients which the PCGG wanted
disclosed for the alleged questioned transactions.[61]
To justify the dropping of the private respondent from the case or the filing of the suit in the
respondent court without him, therefore, the PCGG should conclusively show that Mr. Roco
was treated as a species apart from the rest of the ACCRA lawyers on the basis of a
classification which made substantial distinctions based on real differences. No such
substantial distinctions exist from the records of the case at bench, in violation of the equal
protection clause.
The equal protection clause is a guarantee which provides a wall of protection against
uneven application of statutes and regulations. In the broader sense, the guarantee
operates against uneven application of legal norms so that all persons under similar
circumstances would be accorded the same treatment.[62] Those who fall within a particular

class ought to be treated alike not only as to privileges granted but also as to the liabilities
imposed.
x x x. What is required under this constitutional guarantee is the uniform operation of legal
norms so that all persons under similar circumstances would be accorded the same
treatment both in the privileges conferred and the liabilities imposed. As was noted in a
recent decision: Favoritism and undue preference cannot be allowed. For the principle is that
equal protection and security shall be given to every person under circumstances, which if
not identical are analogous. If law be looked upon in terms of burden or charges, those that
fall within a class should be treated in the same fashion, whatever restrictions cast on some
in the group equally binding the rest.[63]
We find that the condition precedent required by the respondent PCGG of the petitioners for
their exclusion as parties-defendants in PCGG Case No. 33 violates the lawyer-client
confidentiality privilege. The condition also constitutes a transgression by respondents
Sandiganbayan and PCGG of the equal protection clause of the Constitution.[64] It is grossly
unfair to exempt one similarly situated litigant from prosecution without allowing the same
exemption to the others. Moreover, the PCGGs demand not only touches upon the question
of the identity of their clients but also on documents related to the suspected transactions,
not only in violation of the attorney-client privilege but also of the constitutional right
against self-incrimination. Whichever way one looks at it, this is a fishing expedition, a free
ride at the expense of such rights.
An argument is advanced that the invocation by petitioners of the privilege of attorney-client
confidentiality at this stage of the proceedings is premature and that they should wait until
they are called to testify and examine as witnesses as to matters learned in confidence
before they can raise their objections. But petitioners are not mere witnesses. They are coprincipals in the case for recovery of alleged ill-gotten wealth. They have made their position
clear from the very beginning that they are not willing to testify and they cannot be
compelled to testify in view of their constitutional right against self-incrimination and of their
fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality.
It is clear then that the case against petitioners should never be allowed to take its full
course in the Sandiganbayan. Petitioners should not be made to suffer the effects of further
litigation when it is obvious that their inclusion in the complaint arose from a privileged
attorney-client relationship and as a means of coercing them to disclose the identities of
their clients. To allow the case to continue with respect to them when this Court could nip
the problem in the bud at this early opportunity would be to sanction an unjust situation
which we should not here countenance. The case hangs as a real and palpable threat, a
proverbial Sword of Damocles over petitioners' heads. It should not be allowed to continue a
day longer.
While we are aware of respondent PCGGs legal mandate to recover ill-gotten wealth, we will
not sanction acts which violate the equal protection guarantee and the right against selfincrimination and subvert the lawyer-client confidentiality privilege.
WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent Sandiganbayan
(First Division) promulgated on March 18, 1992 and May 21, 1992 are hereby ANNULLED and
SET ASIDE. Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D.
Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, *Rogelio A. Vinluan, Victor P.
Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni as parties-defendants in SB Civil Case
No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al.".
SO ORDERED.

JAMES D. BARTON, plaintiff-appellee,

vs.
LEYTE ASPHALT & MINERAL OIL CO., LTD., defendant-appellant.
Block, Johnston & Greenbaum and Ross, Lawrence & Selph for appellant.
Frank B. Ingersoll for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of the City of Manila by James D.
Barton, to recover of the Leyte Asphalt & Mineral Oil Co., Ltd., as damages for breach of
contract, the sum of $318,563.30, United States currency, and further to secure a judicial
pronouncement to the effect that the plaintiff is entitled to an extension of the terms of the
sales agencies specified in the contract Exhibit A. The defendant answered with a general
denial, and the cause was heard upon the proof, both documentary and oral, after which the
trial judge entered a judgment absolving the defendant corporation from four of the six
causes of action set forth in the complaint and giving judgment for the plaintiff to recover of
said defendant, upon the first and fourth causes of action, the sum of $202,500, United
States currency, equivalent to $405,000, Philippine currency, with legal interest from June 2,
1921, and with costs. From this judgment the defendant company appealed.

The plaintiff is a citizen of the United States, resident in the City of Manila, while the
defendant is a corporation organized under the law of the Philippine Islands with its principal
office in the City of Cebu, Province of Cebu, Philippine Islands. Said company appears to be
the owner by a valuable deposit of bituminous limestone and other asphalt products, located
on the Island of Leyte and known as the Lucio mine. On April 21, 1920, one William
Anderson, as president and general manager of the defendant company, addressed a letter
Exhibit B, to the plaintiff Barton, authorizing the latter to sell the products of the Lucio mine
in the Commonwealth of Australia and New Zealand upon a scale of prices indicated in said
letter.
In the third cause of action stated in the complaint the plaintiff alleges that during the life of
the agency indicated in Exhibit B, he rendered services to the defendant company in the
way of advertising and demonstrating the products of the defendant and expended large
sums of money in visiting various parts of the world for the purpose of carrying on said
advertising and demonstrations, in shipping to various parts of the world samples of the
products of the defendant, and in otherwise carrying on advertising work. For these services
and expenditures the plaintiff sought, in said third cause of action, to recover the sum of
$16,563.80, United States currency. The court, however, absolved the defendant from all
liability on this cause of action and the plaintiff did not appeal, with the result that we are
not now concerned with this phase of the case. Besides, the authority contained in said
Exhibit B was admittedly superseded by the authority expressed in a later letter, Exhibit A,
dated October 1, 1920. This document bears the approval of the board of directors of the
defendant company and was formally accepted by the plaintiff. As it supplies the principal
basis of the action, it will be quoted in its entirety.
(Exhibit A)
CEBU, CEBU, P. I.
October 1, 1920.
JAMES D. BARTON, Esq.,
Cebu Hotel City.
DEAR SIR: You are hereby given the sole and exclusive sales agency for our bituminous
limestone and other asphalt products of the Leyte Asphalt and Mineral Oil Company, Ltd.,
May first, 1922, in the following territory:
Australia
New Zealand
Tasmania
Siam and the

Saigon Java
India China
Sumatra
Hongkong
Straits Settlements, also in the United States of America until May 1, 1921.

As regard bituminous limestone mined from the Lucio property. No orders for less than one
thousand (1,000) tons will be accepted except under special agreement with us. All orders
for said products are to be billed to you as follows:
Per ton
In 1,000 ton lots ...........................................
P15
In 2,000 ton lots ...........................................
14
In 5,000 ton lots ...........................................
12
In 10,000 ton lots ..........................................
10
with the understanding, however that, should the sales in the above territory equal or
exceed ten thousand (10,000) tons in the year ending October 1, 1921, then in that event
the price of all shipments made during the above period shall be ten pesos (P10) per ton,
and any sum charged to any of your customers or buyers in the aforesaid territory in excess

of ten pesos (P10) per ton, shall be rebated to you. Said rebate to be due and payable when
the gross sales have equalled or exceeded ten thousand (10,000) tons in the twelve months
period as hereinbefore described. Rebates on lesser sales to apply as per above price list.
You are to have full authority to sell said product of the Lucio mine for any sum see fit in
excess of the prices quoted above and such excess in price shall be your extra and
additional profit and commission. Should we make any collection in excess of the prices
quoted, we agree to remit same to your within ten (10) days of the date of such collections
or payments.
All contracts taken with municipal governments will be subject to inspector before shipping,
by any authorized representative of such governments at whatever price may be contracted
for by you and we agree to accept such contracts subject to draft attached to bill of lading in
full payment of such shipment.
It is understood that the purchasers of the products of the Lucio mine are to pay freight from
the mine carriers to destination and are to be responsible for all freight, insurance and other
charges, providing said shipment has been accepted by their inspectors.
All contracts taken with responsible firms are to be under the same conditions as with
municipal governments.
All contracts will be subject to delays caused by the acts of God, over which the parties
hereto have no control.
It is understood and agreed that we agree to load all ships, steamers, boats or other carriers
prompty and without delay and load not less than 1,000 tons each twenty-four hours after
March 1, 1921, unless we so notify you specifically prior to that date we are prepared to load
at that rate, and it is also stipulated that we shall not be required to ship orders of 5,000
tons except on 30 days notice and 10,000 tons except on 60 days notice.
If your sales in the United States reach five thousand tons on or before May 1, 1921, you are
to have sole rights for this territory also for one year additional and should your sales in the
second year reach or exceed ten thousand tons you are to have the option to renew the
agreement for this territory on the same terms for an additional two years.
Should your sales equal exceed ten thousand (10,000) tons in the year ending October 1,
1921, or twenty thousand (20,000) tons by May 1, 1922, then this contract is to be
continued automatically for an additional three years ending April 30, 1925, under the same
terms and conditions as above stipulated.
The products of the other mines can be sold by you in the aforesaid territories under the
same terms and conditions as the products of the Lucio mine; scale of prices to be mutually
agreed upon between us.
LEYTE ASPHALT & MINERAL OIL CO., LTD.
By (Sgd.) WM. ANDERSON
President
(Sgd.) W. C. A. PALMER
Secretary
Approved by Board of Directors,
October 1, 1920.
(Sgd.) WM. ANDERSON

President
Accepted.
(Sgd.) JAMES D. BARTON
Witness D. G. MCVEAN
Upon careful perusal of the fourth paragraph from the end of this letter it is apparent that
some negative word has been inadvertently omitted before "prepared," so that the full
expression should be "unless we should notify you specifically prior to that date that we are
unprepared to load at that rate," or "not prepared to load at that rate."
Very soon after the aforesaid contract became effective, the plaintiff requested the
defendant company to give him a similar selling agency for Japan. To this request the
defendant company, through its president, Wm. Anderson, replied, under date of November
27, 1920, as follows:
In re your request for Japanese agency, will say, that we are willing to give you, the same
commission on all sales made by you in Japan, on the same basis as your Australian sales,
but we do not feel like giving you a regular agency for Japan until you can make some large
sized sales there, because some other people have given us assurances that they can
handle our Japanese sales, therefore we have decided to leave this agency open for a time.
Meanwhile the plaintiff had embarked for San Francisco and upon arriving at that port he
entered into an agreement with Ludvigsen & McCurdy, of that city, whereby said firm was
constituted a subagent and given the sole selling rights for the bituminous limestone
products of the defendant company for the period of one year from November 11, 1920, on
terms stated in the letter Exhibit K. The territory assigned to Ludvigsen & McCurdy included
San Francisco and all territory in California north of said city. Upon an earlier voyage during
the same year to Australia, the plaintiff had already made an agreement with Frank B.
Smith, of Sydney, whereby the latter was to act as the plaintiff's sales agent for bituminous
limestone mined at the defendant's quarry in Leyte, until February 12, 1921. Later the same
agreement was extended for the period of one year from January 1, 1921. (Exhibit Q.)
On February 5, 1921, Ludvigsen & McCurdy, of San Francisco, addressed a letter to the
plaintiff, then in San Francisco, advising hi that he might enter an order for six thousand tons
of bituminous limestone to be loaded at Leyte not later than May 5, 1921, upon terms stated
in the letter Exhibit G. Upon this letter the plaintiff immediately indorsed his acceptance.
The plaintiff then returned to Manila; and on March 2, 1921, Anderson wrote to him from
Cebu, to the effect that the company was behind with construction and was not then able to
handle big contracts. (Exhibit FF.) On March 12, Anderson was in Manila and the two had an
interview in the Manila Hotel, in the course of which the plaintiff informed Anderson of the
San Francisco order. Anderson thereupon said that, owing to lack of capital, adequate
facilities had not been provided by the company for filling large orders and suggested that
the plaintiff had better hold up in the matter of taking orders. The plaintiff expressed
surprise at this and told Anderson that he had not only the San Francisco order (which he
says he exhibited to Anderson) but other orders for large quantities of bituminous limestone
to be shipped to Australia and Shanghai. In another interview on the same Anderson
definitely informed the plaintiff that the contracts which be claimed to have procured would
not be filled.
Three days later the plaintiff addressed a letter (Exhibit Y) to the defendant company in
Cebu, in which he notified the company to be prepared to ship five thousand tons of
bituminous limestone to John Chapman Co., San Francisco, loading to commence on May 1,

and to proceed at the rate of one thousand tons per day of each twenty-four hours, weather
permitting.
On March 5, 1921, Frank B. Smith, of Sydney, had cabled the plaintiff an order for five
thousand tons of bituminous limestone; and in his letter of March 15 to the defendant, the
plaintiff advised the defendant company to be prepared to ship another five thousand tons
of bituminous limestone, on or about May 6, 1921, in addition to the intended consignment
for San Francisco. The name Henry E. White was indicated as the name of the person
through whom this contract had been made, and it was stated that the consignee would be
named later, no destination for the shipment being given. The plaintiff explains that the
name White, as used in this letter, was based on an inference which he had erroneously
drawn from the cable sent by Frank B. Smith, and his intention was to have the second
shipment consigned to Australia in response to Smith's order.
It will be noted in connection with this letter of the plaintiff, of March 15, 1921, that no
mention was made of the names of the person, or firm, for whom the shipments were really
intended. The obvious explanation that occurs in connection with this is that the plaintiff did
not then care to reveal the fact that the two orders had originated from his own subagents in
San Francisco and Sydney.
To the plaintiff's letter of March 15, the assistant manager of the defendant company replied
on March, 25, 1921, acknowledging the receipt of an order for five thousand tons of
bituminous limestone to be consigned to John Chapman Co., of San Francisco, and the
further amount of five thousand tons of the same material to be consigned to Henry E.
White, and it was stated that "no orders can be entertained unless cash has been actually
deposited with either the International Banking Corporation or the Chartered Bank of India,
Australia and China, Cebu." (Exhibit Z.)
To this letter the plaintiff in turn replied from Manila, under date of March, 1921, questioning
the right of the defendant to insist upon a cash deposit in Cebu prior to the filling of the
orders. In conclusion the plaintiff gave orders for shipment to Australia of five thousand tons,
or more, about May 22, 1921, and ten thousand tons, or more, about June 1, 1921. In
conclusion the plaintiff said "I have arranged for deposits to be made on these additional
shipments if you will signify your ability to fulfill these orders on the dates mentioned." No
name was mentioned as the purchaser, or purchases, of these intended Australian
consignments.
Soon after writing the letter last above-mentioned, the plaintiff embarked for China and
Japan. With his activities in China we are not here concerned, but we note that in Tokio,
Japan, he came in contact with one H. Hiwatari, who appears to have been a suitable person
for handling bituminous limestone for construction work in Japan. In the letter Exhibit X,
Hiwatari speaks of himself as if he had been appointed exclusive sales agent for the plaintiff
in Japan, but no document expressly appointing him such is in evidence.
While the plaintiff was in Tokio he procured the letter Exhibit W, addressed to himself, to be
signed by Hiwatari. This letter, endited by the plaintiff himself, contains an order for one
thousand tons of bituminous limestone from the quarries of the defendant company, to be
delivered as soon after July 1, 1921, as possible. In this letter Hiwatari states, "on receipt of
the cable from you, notifying me of date you will be ready to ship, and also tonnage rate, I
will agree to transfer through the Bank of Taiwan, of Tokio, to the Asia Banking Corporation,
of Manila, P. I., the entire payment of $16,000 gold, to be subject to our order on delivery of
documents covering bill of lading of shipments, the customs report of weight, and prepaid
export tax receipt. I will arrange in advance a confirmed or irrevocable letter of credit for the
above amounts so that payment can be ordered by cable, in reply to your cable advising
shipping date."

In a letter, Exhibit X, of May 16, 1921, Hiwatari informs the plaintiff that he had shown the
contract, signed by himself, to the submanager of the Taiwan Bank who had given it as his
opinion that he would be able to issue, upon request of Hiwatari, a credit note for the
contracted amount, but he added that the submanager was not personally able to place his
approval on the contract as that was a matter beyond his authority. Accordingly Hiwatari
advised that he was intending to make further arrangements when the manager of the bank
should return from Formosa.
In the letter of May 5, 1921, containing Hiwatari's order for one thousand tons of bituminous
limestone, it was stated that if the material should prove satisfactory after being thoroughly
tested by the Paving Department of the City of Tokio, he would contract with the plaintiff for
a minimum quantity of ten thousand additional tons, to be used within a year from
September 1, 1921, and that in this event the contract was to be automatically extended for
an additional four years. The contents of the letter of May 5 seems to have been conveyed,
though imperfectly, by the plaintiff to his attorney, Mr. Frank B. Ingersoll, of Manila; and on
May 17, 1921, Ingersoll addressed a note to the defendant company in Cebu in which he
stated that he had been requested by the plaintiff to notify the defendant that the plaintiff
had accepted an order from Hiwatari, of Tokio, approved by the Bank of Taiwan, for a
minimum order of ten thousand tons of the stone annually for a period of five years, the first
shipment of one thousand tons to be made as early after July 1 as possible. It will be noted
that this communication did not truly reflect the contents of Hiwatari's letter, which called
unconditionally for only one thousand tons, the taking of the remainder being contingent
upon future eventualities.
It will be noted that the only written communications between the plaintiff and the
defendant company in which the former gave notice of having any orders for the sale of
bituminous limestone are the four letters Exhibit Y, AA, BB, and II. In the first of these letters,
dated March 15, 1921, the plaintiff advises the defendant company to be prepared to ship
five thousand tons of bituminous limestone, to be consigned to John Chapman, Co., of San
Francisco, to be loaded by March 5, and a further consignment of five thousand tons,
through a contract with Henry E. White, consignees to be named later. In the letter Exhibit
BB dated May 17, 1921, the plaintiff's attorney gives notice of the acceptance by plaintiff of
an order from Hiwatari, of Tokio, approved by the Bank of Taiwan, for a minimum of ten
thousand annually for a period of five years, first shipment of a thousand tons to be as early
after July 1 as possible. In the letter Exhibit H the plaintiff gives notice of an "additional" (?)
order from H. E. White, Sydney, for two lots of bituminous limestone of five thousand tons
each, one for shipment not later than June 30, 1921, and the other by July 20, 1921. In the
same letter thousand tons from F. B. Smith, to be shipped to Brisbane, Australia, by June 30,
and a similar amount within thirty days later.
After the suit was brought, the plaintiff filed an amendment to his complaint in which he set
out, in tabulated form, the orders which he claims to have received and upon which his
letters of notification to the defendant company were based. In this amended answer the
name of Ludvigsen & McCurdy appears for the first time; and the name of Frank B. Smith, of
Sydney, is used for the first time as the source of the intended consignments of the letters,
Exhibits G, L, M, and W, containing the orders from Ludvigen & McCurdy, Frank B. Smith and
H. Hiwatari were at no time submitted for inspection to any officer of the defendant
company, except possibly the Exhibit G, which the plaintiff claims to have shown to
Anderson in Manila on March, 12, 1921.
The different items conspiring the award which the trial judge gave in favor of the plaintiff
are all based upon the orders given by Ludvigsen & McCurdy (Exhibit G), by Frank B. Smith
(Exhibit L and M), and by Hiwatari in Exhibit W; and the appealed does not involve an order
which came from Shanghai, China. We therefore now address ourselves to the question

whether or not the orders contained in Exhibit G, L, M, and W, in connection with the
subsequent notification thereof given by the plaintiff to the defendant, are sufficient to
support the judgment rendered by the trial court.
The transaction indicated in the orders from Ludvigsen, & McCurdy and from Frank B. Smith
must, in our opinion, be at once excluded from consideration as emanating from persons
who had been constituted mere agents of the plaintiff. The San Francisco order and the
Australian orders are the same in legal effect as if they were orders signed by the plaintiff
and drawn upon himself; and it cannot be pretended that those orders represent sales to
bona fide purchasers found by the plaintiff. The original contract by which the plaintiff was
appointed sales agent for a limited period of time in Australia and the United States
contemplated that he should find reliable and solvent buyers who should be prepared to
obligate themselves to take the quantity of bituminous limestone contracted for upon terms
consistent with the contract. These conditions were not met by the taking of these orders
from the plaintiff's own subagents, which was as if the plaintiff had bought for himself the
commodity which he was authorized to sell to others. Article 267 of the Code of Commerce
declares that no agent shall purchase for himself or for another that which he has been
ordered to sell. The law has placed its ban upon a broker's purchasing from his principal
unless the latter with full knowledge of all the facts and circumstances acquiesces in such
course; and even then the broker's action must be characterized by the utmost good faith. A
sale made by a broker to himself without the consent of the principal is ineffectual whether
the broker has been guilty of fraudulent conduct or not. (4 R. C. L., 276-277.) We think,
therefore, that the position of the defendant company is indubitably sound in so far as it rest
upon the contention that the plaintiff has not in fact found any bona fide purchasers ready
and able to take the commodity contracted for upon terms compatible with the contract
which is the basis of the action.
It will be observed that the contract set out at the beginning of this opinion contains
provisions under which the period of the contract might be extended. That privilege was
probably considered a highly important incident of the contract and it will be seen that the
sale of five thousand tons which the plaintiff reported for shipment to San Francisco was
precisely adjusted to the purpose of the extension of the contract for the United States for
the period of an additional year; and the sales reported for shipment to Australia were
likewise adjusted to the requirements for the extention of the contract in that territory. Given
the circumstances surrounding these contracts as they were reported to the defendant
company and the concealment by the plaintiff of the names of the authors of the orders, -who after all were merely the plaintiff's subagents, the officers of the defendant company
might justly have entertained the suspicion that the real and only person behind those
contracts was the plaintiff himself. Such at least turns out to have been the case.
Much energy has been expended in the briefs upon his appeal over the contention whether
the defendant was justified in laying down the condition mentioned in the letter of March 26,
1921, to the effect that no order would be entertained unless cash should be deposited with
either the International Banking Corporation of the Chartered Bank of India, Australia and
China, in Cebu. In this connection the plaintiff points to the stipulation of the contract which
provides that contracts with responsible parties are to be accepted "subject to draft
attached to bill of lading in full payment of such shipment." What passed between the
parties upon this point appears to have the character of mere diplomatic parrying, as the
plaintiff had no contract from any responsible purchaser other than his own subagents and
the defendant company could no probably have filled the contracts even if they had been
backed by the Bank of England.
Upon inspection of the plaintiff's letters (Exhibit Y and AA), there will be found ample
assurance that deposits for the amount of each shipment would be made with a bank in
Manila provided the defendant would indicated its ability to fill the orders; but these

assurance rested upon no other basis than the financial responsibility of the plaintiff himself,
and this circumstance doubtless did not escape the discernment of the defendant's officers.
With respect to the order from H. Hiwatari, we observe that while he intimates that he had
been promised the exclusive agency under the plaintiff for Japan, nevertheless it does not
affirmatively appear that he had been in fact appointed to be such at the time he signed to
order Exhibit W at the request of the plaintiff. It may be assumed, therefore, that he was at
that time a stranger to the contract of agency. It clearly appears, however, that he did not
expect to purchase the thousand tons of bituminous limestone referred to in his order
without banking assistance; and although the submanager of the Bank of Taiwan had said
something encouraging in respect to the matter, nevertheless that official had refrained
from giving his approval to the order Exhibit W. It is therefore not shown affirmatively that
this order proceeds from a responsible source.
The first assignment of error in the appellant's brief is directed to the action of the trial judge
in refusing to admit Exhibit 2, 7, 8, 9 and 10, offered by the defendant, and in admitting
Exhibit E, offered by the plaintiff. The Exhibit 2 is a letter dated June 25, 1921, or more than
three weeks after the action was instituted, in which the defendant's assistant general
manager undertakes to reply to the plaintiff's letter of March 29 proceeding. It was evidently
intended as an argumentative presentation of the plaintiff's point of view in the litigation
then pending, and its probative value is so slight, even if admissible at all, that there was no
error on the part of the trial court in excluding it.
Exhibit 7, 8, 9 and 10 comprise correspondence which passed between the parties by mail or
telegraph during the first part of the year 1921. The subject-matter of this correspondence
relates to efforts that were being made by Anderson to dispose of the controlling in the
defendant corporation, and Exhibit 9 in particular contains an offer from the plaintiff,
representing certain associates, to but out Anderson's interest for a fixed sum. While these
exhibits perhaps shed some light upon the relations of the parties during the time this
controversy was brewing, the bearing of the matter upon the litigation before us is too
remote to exert any definitive influence on the case. The trial court was not in error in our
opinion in excluding these documents.
Exhibit E is a letter from Anderson to the plaintiff, dated April 21, 1920, in which information
is given concerning the property of the defendant company. It is stated in this letter that the
output of the Lucio (quarry) during the coming year would probably be at the rate of about
five tons for twenty-four hours, with the equipment then on hand, but that with the
installation of a model cableway which was under contemplation, the company would be
able to handle two thousand tons in twenty-four hours. We see no legitimate reason for
rejecting this document, although of slight probative value; and her error imputed to the
court in admitting the same was not committed.
Exhibit 14, which was offered in evidence by the defendant, consists of a carbon copy of a
letter dated June 13, 1921, written by the plaintiff to his attorney, Frank B. Ingersoll, Esq., of
Manila, and in which plaintiff states, among other things, that his profit from the San
Francisco contract would have been at the rate of eigthy-five cents (gold) per ton. The
authenticity of this city document is admitted, and when it was offered in evidence by the
attorney for the defendant the counsel for the plaintiff announced that he had no objection
to the introduction of this carbon copy in evidence if counsel for the defendant would explain
where this copy was secured. Upon this the attorney for the defendant informed the court
that he received the letter from the former attorneys of the defendant without explanation of
the manner in which the document had come into their possession. Upon this the attorney
for the plaintiff made this announcement: "We hereby give notice at this time that unless
such an explanation is made, explaining fully how this carbon copy came into the possession
of the defendant company, or any one representing it, we propose to object to its admission

on the ground that it is a confidential communication between client and lawyer." No further
information was then given by the attorney for the defendant as to the manner in which the
letter had come to his hands and the trial judge thereupon excluded the document, on the
ground that it was a privileged communication between client and attorney.
We are of the opinion that this ruling was erroneous; for even supposing that the letter was
within the privilege which protects communications between attorney and client, this
privilege was lost when the letter came to the hands of the adverse party. And it makes no
difference how the adversary acquired possession. The law protects the client from the
effect of disclosures made by him to his attorney in the confidence of the legal relation, but
when such a document, containing admissions of the client, comes to the hand of a third
party, and reaches the adversary, it is admissible in evidence. In this connection Mr.
Wigmore says:
The law provides subjective freedom for the client by assuring him of exemption from its
processes of disclosure against himself or the attorney or their agents of communication.
This much, but not a whit more, is necessary for the maintenance of the privilege. Since the
means of preserving secrecy of communication are entirely in the client's hands, and since
the privilege is a derogation from the general testimonial duty and should be strictly
construed, it would be improper to extend its prohibition to third persons who obtain
knowledge of the communications. One who overhears the communication, whether with or
without the client's knowledge, is not within the protection of the privilege. The same rule
ought to apply to one who surreptitiously reads or obtains possession of a document in
original or copy. (5 Wigmore on Evidence, 2d ed., sec. 2326.)
Although the precedents are somewhat confusing, the better doctrine is to the effect that
when papers are offered in evidence a court will take no notice of how they were obtained,
whether legally or illegally, properly or improperly; nor will it form a collateral issue to try
that question. (10 R. C. L., 931; 1 Greenl. Evid., sec. 254a; State vs. Mathers, 15 L. R. A., 268;
Gross vs. State, 33 L. R. A., [N. S.], 477, note.)
Our conclusion upon the entire record is that the judgment appealed from must be reversed;
and the defendant will be absolved from the complaint. It is so ordered, without special
pronouncement as to costs of either instance.
Araullo, C.J., Johnson, Avancea, Ostrand, Johns and Romualdez, JJ., concur.
Separate Opinions
MALCOLM, J., dissenting:
An intensive scrutiny of every phase of this case leads me to the conclusion that the trial
judge was correct in his findings of fact and in his decision. Without encumbering the case
with a long and tedious dissent, I shall endeavor to explain my point of view as briefly and
clearly as possible.
A decision must be reached on the record as it is and not on a record as we would like to
have it. The plaintiff and the defendant deliberately entered into a contract, the basis of this
action. The plaintiff, proceeding pursuant to this contract, spent considerable effort and used
considerable money to advance the interests of the defendant and to secure orders for its
products. These orders were submitted to the president of the defendant company
personally and later formally by writing. Prior to the institution of the suit, the only objection
of the defendant was that the money should be deposited with either the International

Banking Corporation or the Chartered Bank of India, Australia and China at Cebu, a
stipulation not found in the contract.
A reasonable deduction, therefore, is that the plaintiff presented orders under circumstances
which were a substantial compliance with the terms of the contract with the defendant, and
which insured to the defendant payment for its deliveries according to the price agreed
upon, and that as the defendant has breached its contract, it must respond in damages.
The current running through the majority opinion is that the order emanated from subagents
of the plaintiff, and that no bona fide purchasers were ready and able to take the commodity
contracted for upon terms compatible with the contract. The answer is, in the first place,
that the contract nowhere prohibits the plaintiff to secure subagents. The answer is, in the
second place, that the orders were so phrased as to make the persons making them
personally responsible. The Ludvigsen & McCurdy order from San Francisco begins: "You can
enter our order for 6,000 tons of bituminous limestone as per sample submitted, at $10 gold
per ton, f. o. b., island of Leyte, subject to the following terms and conditions:
* * * "(Exhibit G). The Smith order from Australia contains the following: "It is therefore with
great pleasure I confirm the booking of the following orders, to be shipped at least within a
week of respective dates: . . ." (Exhibit L). The Japan order starts with the following
sentence: "You can enter my order for 1,000 tons of 1,000 kilos each of bituminous
limestone from the quarries of the Leyte Asphalt and Mineral Oil Co. . . ." (Exhibit W.)
But the main point of the plaintiff which the majority decision misses entirely centers on the
proposition that the orders were communicated by the plaintiff to the defendant, and that
the only objection the defendant had related to the manner of payment. To emphasize this
thought again, let me quote the reply of the defendant to the plaintiff when the defendant
acknowledge receipts of the orders placed by the plaintiff. The letter reads: "In reply to same
we have to advice you that no orders can be entertained unless cash has been actually
deposited with either the International Banking Corporation or the Chartered Bank of India,
Australia and China, Cebu." (Exhibit Y.) Prior to the filing of suit, the defendant company
never at any time raised any questioned as to whether the customers secured by plaintiff
were "responsible firms" within the meaning of the contract, and never secured any
information whatsoever as to their financial standing. Consequently, defendant is now
estopped by its conduct from raising new objections for rejection of the orders. (Mechem on
Agency, section 2441.)
The majority decision incidentally takes up for consideration assignments of error 1 and 2
having to do with either the admission or the rejection by the trial court of certain exhibits.
Having in mind that the Court reverses the court a quo on the facts, what is said relative to
these two assignments is absolutely unnecessary for a judgment, and even as obiter dicta,
contains unfortunate expressions. Exhibit 14, for example, is a letter addressed by the
plaintiff to his lawyer and probably merely shown to the counsel of the defendant during
negotiations to seek a compromise. Whether that exhibit be considered improperly rejected
or not would not change the result one iota.
The rule now announced by the Court that it makes no difference how the adversary
acquired possession of the document, and that a court will take no notice of how it was
obtained, is destructive of the attorney's privilege and constitutes and obstacle to attempts
at friendly compromise. In the case of Uy Chico vs. Union Life Assurance Society ([1915], 29
Phil., 163), it was held that communications made by a client to his attorney for the purpose
of being communicated to others are not privileged if they have been so communicated. But
here, there is no intimation that Exhibit 14 was sent by the client to the lawyer for the
purpose of being communicated to others. The Supreme Court of Georgia in the case of
Southern Railway Co. vs. White ([1899], 108 Ga., 201), held that statements in a letter to a

party's attorney handed by the latter to the opponent's attorney, are confidential
communications and must be excluded.
Briefly, the decision of the majority appears to me to be defective in the following
particulars: (1) It sets aside without good reason the fair findings of fact as made by the trial
court and substitutes therefor other findings not warranted by the proof; (2) it fails to stress
plaintiff's main argument, and (3) it lay downs uncalled for rules which undermine the
inviolability of a client's communications to his attorney.
Accordingly, I dissent and vote for an affirmance of the judgment.

ORIENT INSURANCE COMPANY, petitioner,

vs.
E. P. REVILLA, Judge of First Instance of Manila, and TEAL MOTOR CO., INC.,
respondents.

Gibbs and McDonough for petitioner.

Guevara, Francisco and Recto for respondents.
STREET, J.:
This is an original petition for writs of certiorari and mandamus filed in this court by the
Orient Insurance Company against the respondent judge of the Court of First Instance of
Manila and the Teal Motor Co., Inc. The object of the petition is to obtain an order requiring
the respondent judge to permit the attorney for the petitioner to examine a letter (Exhibits
49 and 49-Act) part of which has been read into the record in the course of the examination
of one of the witnesses testifying for the plaintiff in the case of Teal Motor Co., Inc. vs. Orient
Insurance Company, now pending in the Court of First Instance of the City of Manila, civil
case No. 35825, with which, for purposes of trial, have been consolidated several other
cases of similar character. The cause is now before us for resolution upon the complaint and
answer interposed by the two respondents.
The respondent Teal Motor Co., Inc. is plaintiff in a civil action instituted in the Court of First
Instance of Manila (civil case No. 35825) for the purpose of recovering upon two fire
insurance policies issued by the Orient Insurance Company, aggregating P60,000, upon a
stock of merchandise alleged to be of the value of P414,513.56, which, with the exception of
salvage valued at about P50,000, was destroyed by a fire on or about January 6, 1929. In
one of the clauses of the policies sued upon is a stipulation to the effect that all benefit
under the policy would be forfeited if, in case of loss, the claim should be rejected by the
insurer and action or suit should not be commenced within three months after such
rejection. In the answer of the Orient Insurance Company, interposed in the civil case
mentioned, it is alleged, by way of defense, that the company rejected the claim on April 15,
1929, that notice of such rejection was given to the plaintiff by letter on the same day, and
that suit was not instituted on the policy until August 3, 1929, which was more than three
months after the rejection of the claim.
In a replication to the answer of the defendant, containing the foregoing and other defenses,
the plaintiff admitted that the adjusters of the defendant company had, on April 15, 1929,
notified the plaintiff that the Orient Insurance Company would not pay the claim, basing
refusal upon alleged incendiarism and fraud on the part of the plaintiff; and by way of
avoidance, it was alleged in the replication that, after notification of denial of liability by the
insurance company, one E. E. Elser, as representative of the company, expressly requested
the plaintiff to defer judicial action until after the following July 31, stating that three were
great possibilities that an extrajudicial compromise might be arranged in the matter; and it
was further asserted, in the replication, that the plaintiff had deferred action, relying upon
this request.
It will thus be seen that the reason for the admitted delay in the institution of the action is
an important issue in the case, or case, now in course of trial.
It further appears that while case No. 35825 was in course of trial, as it still is, before the
respondent judge, in the Court of First Instance of Manila, the witness E. M. Bachrach,
president of the Teal Motor Co., Inc., while being examined in chief by the attorneys for the
plaintiff, and speaking of the circumstances surrounding the institution of the action, said
that he had reported certain conversations to plaintiff's attorneys, and he added: "I waited
for about a week longer and not having heard anything about it, in the meantime, on the
13th of July, I received a letter from our attorneys, Guevara, Francisco & Recto, urging me to
file these cases." The attorney for the defendant, Orient Insurance Company, thereupon
interposed, saying: "I ask that the witness be required to produce the letter referred to from
Mr. Guevara, or else his answer be stricken out. (To the witness) Have you got the letter

there?" The witness replied that he had the letter with him and that he had no objection to
show that part of the letter in which Guevara urged him to proceed with the cases. Upon
being asked about the other part of the letter, the witness said that the other part contained
private matter, "between the attorney and ourselves," meaning between the Teal Motor Co.,
Inc., and its attorneys. Thereupon the attorney for the defendant, Orient Insurance
Company, said he would like to see the letter, inquiring as to its date. The witness replied
that it bore date of July 13, 1929; and upon the court inquiring whether the witness had any
objection to the reading of the letter by the attorney for the defendant, the witness replied
that he wished to consult with his attorney. Upon this the attorney for the adversary party,
the Orient Insurance Company, suggested that he would like to have the letter marked
without his reading it, and it was accordingly marked as Exhibit 49. The attorney then said:
"In view of the production of the letter, I withdraw the objection to the statement of the
witness as to its contents," and he added: "I now ask the permission of the court to read the
letter for my information." The court thereupon inquired of the attorney for the Teal Motor
Co., Inc., whether he had any objection, and the attorney observed that he would have no
objection to the disclosing of that part of the letter which referred exactly to the point of the
urging of the filing of the complaints, and he added: "Unfortunately, the other part of the
letter being a communication between a client and attorney, I don't think, if your Honor
please, it can be disclosed without the consent of both."
In the course of the colloquy which thereupon unsued between the attorney for the plaintiff
and the attorney for the defendant, it was stated by the attorney for the plaintiff that only a
part of the letter had anything to do with the urging of the presentation of the complaints in
the cases to which the witness had testified, and that the other part of the letter referred to
the contract of fees, or retaining of the services of plaintiff's attorneys in connection with
said cases, a matter, so the attorney suggested, entirely distinct from the urging of the
presentation of the cases. The attorney for the defendant thereupon insisted before the
court that, inasmuch as all the letter refers to the case then in court, the entire document
should be exhibited, in conformity with the rule that when part of a document is offered in
evidence, the entire document must be presented.
Upon this the respondent judge ruled as follows: "Objection of the counsel for the plaintiff
and the witness, Mr. Barchrach, to the showing or reading of the whole letter in the record is
sustained, and it is ordered that only that part of the letter which has been referred to by Mr.
Bachrach in his testimony be read and transcribed into the record." To this ruling the
attorney for the defendant excepted and the respondent judge then said: "Let that part of
the letter pointed out by Mr. Bachrach be transcribed in the record;" whereupon the
following part of the letter was read out in court and incorporated in the transcript.
July 13, 1929
DEAR SIR: As you know, your attorney Mr. Basilio Francisco has turned over to us, prior to his
departure, all the papers in connection with the insurance claim of the Teal Motor Co., Inc.,
on destroyed or burned merchandise, and everything is now ready for filing of the
corresponding complaints in the Court of First Instance.
When the matter above quoted had been thus read into the record, the attorney for the
defendant made the following observation: "In view of the fact that counsel for the plaintiff
has just now read into the record and presented as evidence a part of the letter of July 13, I
now request that the entire letter be produced." This request was overruled by the court,
and the attorney for the defendant excepted. After further discussion, upon the suggestion
of the attorney for the defendant and by agreement of the counsel for both parties, the
second page of the letter was marked 49-A by the clerk court.

The incident was renewed when it came at turn of the attorney for the defendant to crossexamine the same witness E. M. Bachrach, when the attorney for the defendant, having
ascertained from the witness that he still had the letter in his possession, and that he had
not answered it in writing, formally offered the letter in evidence. The attorney for the
plaintiff again objected, on the ground that the letter was of a privileged nature and that it
was the personal property of the witness. Thereupon the court, receiving the letter in hand
from the witness, observed that he had already ruled upon it, and after further discussion,
the court sustained the objection of the attorney for the plaintiff and refused to admit in
evidence so much of the letter as had not already been read into the record. The attorney
for the defendant again excepted.
At a later stage of the trial the attorney interposed a formal motion for reconsideration of the
ruling of the court in refusing to admit the letter in evidence, or the part of it not already
incorporated in the record. The court, however, adhered to its original ruling, and the
attorney for the defendant excepted. Another incident that might be noted, though not
alleged as a ground of relief in the petition before us, but set forth in the answer of the
respondents, is that the attorney for the defendant procured a subpoena duces tecum to be
issued by the clerk of court requiring the attorneys for the plaintiff to produce in court
certain papers including the letter which gave rise to the present controversy. The court, on
motion of the attorneys for the plaintiff, quashed said subpoena.
The essential character of this incident, which we have perhaps narrated with unnecessary
prolixity, is readily discernible. A witness for the plaintiff made an oral statement as to the
substance of part of a letter which had been received by the plaintiff from its attorney, and
when the fact was revealed that the communication had been made by letter, the attorney
for the defendant requested that the witness be required to produce the letter in court, and
if not, that his answer should be stricken out. This in legal effect was a demand for the
production of "the best evidence," it being a well-known rule of law that a witness cannot be
permitted to give oral testimony as to the contents of a paper writing which can be produced
in court. In response to this request that portion of the letter to which the witness had
supposedly referred was read into the record.
The respondent judge appears to have considered that the excerpt from the letter thus
incorporated in the record was either proof of the defendant, its production having been
demanded by defendant's counsel, or that at least the legal responsibility for the
incorporation of said excerpt into the record was attributable to the defendant. We are
unable to accept this view. The incorporation of this excerpt from the letter was a necessary
support of the oral statement which the witness had made, and if this basis for such
statement had not been laid by the incorporation of the excerpt into the record, the oral
statement of the witness concerning the tenor of the letter should properly have been
stricken out. But instead of withdrawing the oral statement of the witness concerning the
nature of the written communication, the witness produced the letter and the part of it
already quoted was read into the record. The excerpt in question must therefore be
considered as proof submitted by the plaintiff; and there can be no question that, part of the
letter having been introduced in behalf of the plaintiff, the whole of the letter could properly
be examined by the other party, in accordance with the express provision of section 283 of
the Code of Civil Procedure.
It was stated in the court by the attorney for the plaintiff, in opposing the introduction of
other portions of the letter in proof, that the other parts were privileged, because they
related to the terms of employment between attorney and client, or to the fee to be paid to
the attorney. With respect to this point it is difficult to see how a contract for fees could be
considered privileged. Irrelevant it might, under certain circumstances, certainly be, but not
privileged. Of course contracts between attorneys and clients are inherently personal and
private matters, but they are a constant subject of litigation, and contracts relating to fees

are essentially not of privileged nature. Privilege primarily refers to communications from
client to attorney, an idea which of course includes communications from attorney to client
relative to privileged matters.
But, even supposing that the matter contained in the letter and withheld from the inspection
of the adversary was originally of a privileged nature, the privilege was waived by the
introduction in evidence of part of the letter. The provision in section 283 of the Code of Civil
Procedure making the whole of a declaration, conversation, or writing admissible when part
has been given in evidence by one party, makes no exception as to privileged matter; and
the jurisprudence on the subject does not recognize any exception. Practically every feature
of the question now under consideration was involved in the case of Western Union Tel. Co.
vs. Baltimore & Ohio Tel. Co. (26 Fed., 55), which in 1885 came before Wallace, J., a
distinguished jurist presiding in the Federal Circuit Court of the Southern District of New York.
The substance of the case is well stated in the note to Kelly vs. Cummens (20 Am. & Eng.
Ann. Cases, 1283, 1287), from which we quote as follows:
In Western Union Tel. Co. vs. Baltimore, etc., Tel. Co. (26 Fed., 55), it appeared that upon a
motion in the cause, which was in equity for a preliminary injunction, one of the questions
involved was whether a reissued patent upon which the suit was founded was obtained for
the legitimate purpose of correcting mistake or inadvertence in the specification and claims
of the original, or whether it was obtained merely for the purpose of expanding the claims of
the original in order to subordinate to the reissue certain improvements or inventions made
by others after the grant of the original patent and before the application for the reissue. To
fortify its theory of the true reasons for obtaining the reissue, the complainant upon that
motion embodied in affidavits extracts from communications made by a patent expert and
attorney in the office of the solicitor general of the complainant, to the president and the
vice-president of the complainant, when the subject of applying for a reissue was under
consideration by the officers of the complainant, and while the proceedings for a reissue
were pending. After the cause had proceeded to the taking of proofs for final hearing the
defendant sought to introduce in evidence the original communications, extracts from which
were used by the complainant upon the motion for an injunction, on the ground that the
parts of the communication which were not disclosed had an important bearing upon the
history of the application for a reissue, and indicated that it was not made for any legitimate
purpose. The complainant resisted the efforts of the defendant to have the original
communications admitted, on the ground that they were privileged as made to its officers by
its attorney, but it was held that the defendant was entitled to introduce them in evidence,
the court saying: "The question, then, is whether the complainant can shelter itself behind
its privilege to insist upon the privacy of the communications between its attorney and its
other officers as confidential communications, when it has itself produced fragmentary part
of them, and sought to use them as a weapon against the defendant to obtain the stringent
remedy of a preliminary injunction. Assuming that the communications addressed to the
president and vice-president of the complainant by Mr. Buckingham were communications
made to the complainant by its attorney, and as such privileged at the option of the
complainant, it was competent for the complainant to waive its privilege. It would hardly be
contended that the complainant could introduce extracts from these communications as
evidence in its own behalf for the purpose of a final hearing, and yet withhold the other
parts if their production were required by the defendant. A party cannot waive such a
privilege partially. He cannot remove the seal of secrecy from so much of the privileged
communications as makes for his advantage, and insist that it shall not be removed as to so
much as makes to the advantage of his adversary, or may neutralize the effect of such as
has been introduced. Upon the principle it would seem that it cannot be material at what
stage of the proceedings in a suit a party waives his right to maintain the secrecy of
privileged communication. All the proceedings in the cause are constituent parts of the
controversy, and it is not obvious how any distinction can obtain as to the effect of waiver

when made by a party for the purpose of obtaining temporary relief and when made by him
to obtain final relief."
From the foregoing decision and other cases contained in the note referred to, we are led to
the conclusion that the attorney for the defendant in the court below was entitled to
examine the whole of the letter (Exhibit 49 and 49-A), with a view to the introduction in
evidence of such parts thereof as may be relevant to the case on trial, and the respondent
judge was in error in refusing to permit the inspection of the letter by said attorney.
It is suggested in the argument for the respondents that the question of the admissibility in
evidence of the parts of the letter not already read into the record was prematurely raised,
and that the attorney for the defendant should have waited until it became his turn to
present evidence in chief, when, as is supposed, the question could have been properly
raised. We are of the opinion, however, that if the attorney for the defendant had a right to
examine the letter, it should have been produced when he asked for it on the crossexamination of the witness who had the letter in his possession. Besides, in the lengthy
discussions between court and attorneys, occuring at different times, there was not the
slightest suggestion from the court that the parts of the letter which were held inadmissible
would be admitted at any time. Furthermore, the action of the court in quashing the
subpoena duces tecum for the production of the letter shows that the court meant to rule
that the letter could not be inspected at all by the attorney for the defendant.
Objection is also here made by the attorney for the respondents to the use of the writ of
mandamus for the purpose of correcting the error which is supposed to have been
committed. The situation presented is, however, one where the herein petitioner has no
other remedy. The letter which the petitioner seeks to examine has been ruled inadmissible,
as to the parts not introduced in evidence by the defendant in the court below, and the
respondent judge had not permitted the document to become a part of the record in such a
way that the petitioner could take advantage of the error upon appeal to this court. It is idle
to discuss whether other remedy would be speedy or adequate when there is no remedy at
all. This court is loath, of course, to interfere in course of the trial of a case in a Court of First
Instance, as such interference might frequently prolong unduly the litigation in that court.
But this case has been pending before the respondent judge for a considerable period of
time, and undoubtedly the probatory period will be necessarily extended much longer. Under
these circumstances, the action of this court in entertaining the present application will
either be conductive to the speedy determination of case, or at least will not appreciably
extend the proceedings.
It goes without saying that the subject matter of the contention is of a nature which makes
the use of the writ of mandamus appropriate, since the right from the exercise of which the
petitioner is excluded is one to which it is entitled under the law and the duty to be
performed is one pertaining to the respondent judge in his official capacity.
From what has been said it follows that the writ of mandamus prayed for will be granted,
and the respondent judge is directed to permit the attorney for the defendant (petitioner
here) to inspect the letter (Exhibit 49 and 49-A) with a view to the introduction in evidence
of such parts thereof as may be relevant to the issues made by the pleadings in civil case
No. 35825 and other cases which have been consolidated with it for trial. So ordered, with
costs against the respondent Teal Motor Co., Inc.

Hickman v. Taylor, 329 U.S. 495 (1947)

Hickman v. Taylor
No. 47
Argued November 13, 1946
Decided January 13, 1947
329 U.S. 495
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE THIRD CIRCUIT

Syllabus
Under the Federal Rules of Civil Procedure, plaintiff in a suit in a federal district court against
certain tug owners to recover for the death of a seaman in the sinking of the tug filed
numerous interrogatories directed to the defendants, including one inquiring whether any
statements of members of the crew were taken in connection with the accident and
requesting that exact copies of all such written statements be attached and that the
defendant "set forth in detail the exact provisions of any such oral statements or reports."
There was no showing of necessity or other justification for these requests. A public hearing
had been held before the United States Steamboat Inspectors at which the survivors of the
accident had been examined and their testimony recorded and made available to all
interested parties. Defendants answered all other interrogatories, stating objective facts and
giving the names and addresses of witnesses, but declined to summarize or set forth the
statements taken from witnesses, on the ground that they were "privileged matter obtained
in preparation for litigation." After a hearing on objections to the interrogatories, the District
Court held that the requested matters were not privileged and decreed that they be
produced and that memoranda of defendants' counsel containing statements of fact by
witnesses either be produced or submitted to the court for determination of those portions
which should be revealed to plaintiff. Defendants and their counsel refused, and were
adjudged guilty of contempt.
Held:
1. In these circumstances, Rules 26, 33 and 34 of the Federal Rules of Civil Procedure do not
require the production as of right of oral and written statements of witnesses secured by an
adverse party's counsel in the course of preparation for possible litigation after a claim has
arisen. Pp. 329 U. S. 509-514.
2. Since plaintiff addressed simple interrogatories to adverse parties, did not direct them to
such parties or their counsel by way of deposition under Rule 26, and it does not appear that
he filed a
Page 329 U. S. 496
motion under Rule 34 for a court order directing the production of the documents in
question, he was proceeding primarily under Rule 33, relating to interrogatories to parties. P.
329 U. S. 504.
3. Rules 33 and 34 are limited to parties, thereby excluding their counsel or agents. P. 329 U.
S. 504.
4. Rule 33 did not permit the plaintiff to obtain, as adjuncts to interrogatories addressed to
defendants, memoranda and statements prepared by their counsel after a claim had arisen.
P. 329 U. S. 504.
5. The District Court erred in holding defendants in contempt for failure to produce that
which was in the possession of their counsel, and in holding their counsel in contempt for
failure to produce that which he could not be compelled to produce under either Rule 33 or
Rule 34. P. 329 U. S. 505.
6. Memoranda, statements, and mental impressions prepared or obtained from interviews
with witnesses by counsel in preparing for litigation after a claim has arisen are not within
the attorney-client privilege, and are not protected from discovery on that basis. P. 329 U. S.
508.

7. The general policy against invading the privacy of an attorney's course of preparation is
so essential to an orderly working of our system of legal procedure that a burden rests on
the one who would invade that privacy to establish adequate reasons to justify production
through a subpoena or court order. P. 329 U. S. 512.
8. Rule 30(b) gives the trial judge the requisite discretion to make a judgment as to whether
discovery should be allowed as to written statements secured from witnesses; but, in this
case, there was no ground for the exercise of that discretion in favor of plaintiff. P. 329 U. S.
512.
9. Under the circumstances of this case, no showing of necessity could be made which would
justify requiring the production of oral statements made by witnesses to defendants'
counsel, whether presently in the form of his mental impressions or in the form of
memoranda. P. 329 U. S. 512.
153 F.2d 212 affirmed.
A District Court adjudged respondents guilty of contempt for failure to produce, in response
to interrogatories, copies of certain written statements and memoranda prepared by counsel
in connection with pending litigation. 4 F.R.D. 479. The Circuit Court of Appeals reversed.
153 F.2d 212. This Court granted certiorari. 328 U.S. 876. Affirmed, p. 329 U. S. 514.
Page 329 U. S. 497
MR. JUSTICE MURPHY delivered the opinion of the Court.
This case presents an important problem under the Federal Rules of Civil Procedure as to the
extent to which a party may inquire into oral and written statements of witnesses, or other
information, secured by an adverse party's counsel in the course of preparation for possible
litigation after a claim has arisen. Examination into a person's files and records, including
those resulting from the professional activities of an attorney, must be judged with care. It is
not without reason that various safeguards have been established to preclude unwarranted
excursions into the privacy of a man's work. At the same time, public policy supports
reasonable and necessary inquiries. Properly to balance these competing interests is a
delicate and difficult task.
Page 329 U. S. 498
On February 7, 1943, the tug "J. M. Taylor" sank while engaged in helping to tow a car float
of the Baltimore & Ohio Railroad across the Delaware River at Philadelphia. The accident was
apparently unusual in nature, the cause of it still being unknown. Five of the nine crew
members were drowned. Three days later, the tug owners and the underwriters employed a
law firm, of which respondent Fortenbaugh is a member, to defend them against potential
suits by representatives of the deceased crew members and to sue the railroad for damages
to the tug.
A public hearing was held on March 4, 1943, before the United States Steamboat Inspectors
at which the four survivors were examined. This testimony was recorded and made available
to all interested parties. Shortly thereafter, Fortenbaugh privately interviewed the survivors
and took statements from them with an eye toward the anticipated litigation; the survivors
signed these statements on March 29. Fortenbaugh also interviewed other persons believed
to have some information relating to the accident, and in some cases he made memoranda
of what they told him. At the time when Fortenbaugh secured the statements of the
survivors, representatives of two of the deceased crew members had been in
communication with him. Ultimately claims were presented by representatives of all five of

the deceased; four of the claims, however, were settled without litigation. The fifth claimant,
petitioner herein, brought suit in a federal court under the Jones Act on November 26, 1943,
naming as defendants the two tug owners, individually and as partners, and the railroad.
One year later, petitioner filed 39 interrogatories directed to the tug owners. The 38th
interrogatory read:
"State whether any statements of the members of the crews of the Tugs 'J. M. Taylor' and
'Philadelphia' or of any other vessel were taken in connection with the towing of the car float
and the sinking of the Tug 'John M. Taylor.'
Page 329 U. S. 499
Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail
the exact provisions of any such oral statements or reports."
Supplemental interrogatories asked whether any oral or written statements, records, reports,
or other memoranda had been made concerning any matter relative to the towing operation,
the sinking of the tug, the salvaging and repair of the tug, and the death of the deceased. If
the answer was in the affirmative, the tug owners were then requested to set forth the
nature of all such records, reports, statements, or other memoranda.
The tug owners, through Fortenbaugh, answered all of the interrogatories except No. 38 and
the supplemental ones just described. While admitting that statements of the survivors had
been taken, they declined to summarize or set forth the contents. They did so on the ground
that such requests called "for privileged matter obtained in preparation for litigation," and
constituted "an attempt to obtain indirectly counsel's private files." It was claimed that
answering these requests "would involve practically turning over not only the complete files,
but also the telephone records and, almost, the thoughts, of counsel."
In connection with the hearing on these objections, Fortenbaugh made a written statement
and gave an informal oral deposition explaining the circumstances under which he had taken
the statements. But he was not expressly asked in the deposition to produce the statements.
The District Court for the Eastern District of Pennsylvania, sitting en banc, held that the
requested matters were not privileged. 4 F.R.D. 479. The court then decreed that the tug
owners and Fortenbaugh, as counsel and agent for the tug owners forthwith
"answer Plaintiff's 38th interrogatory and supplemental interrogatories; produce all written
statements of witnesses obtained by Mr. Fortenbaugh, as counsel and agent for Defendants;
Page 329 U. S. 500
state in substance any fact concerning this case which Defendants learned through oral
statements made by witnesses to Mr. Fortenbaugh, whether or not included in his private
memoranda, and produce Mr. Fortenbaugh's memoranda containing statements of fact by
witnesses or to submit these memoranda to the Court for determination of those portions
which should be revealed to Plaintiff."
Upon their refusal, the court adjudged them in contempt and ordered them imprisoned until
they complied.
The Third Circuit Court of Appeals, also sitting en banc, reversed the judgment of the District
Court. 153 F.2d 212. It held that the information here sought was part of the "work product
of the lawyer," and hence privileged from discovery under the Federal Rules of Civil

Procedure. The importance of the problem, which has engendered a great divergence of
views among district courts, [Footnote 1] led us to grant certiorari. 328 U.S. 876.
The pretrial deposition-discovery mechanism established by Rules 26 to 37 is one of the
most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal
practice, the pretrial functions of notice-giving, issue-formulation, and fact-revelation were
performed primarily and inadequately by the pleadings. [Footnote 2] Inquiry into the issues
and the facts before trial was
Page 329 U. S. 501
narrowly confined, and was often cumbersome in method. [Footnote 3] The new rules,
however, restrict the pleadings to the task of general notice-giving, and invest the
deposition-discovery process with a vital role in the preparation for trial. The various
instruments of discovery now serve (1) as a device, along with the pretrial hearing under
Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for
ascertaining the facts, or information as to the existence or whereabouts of facts, relative to
those issues. Thus, civil trials in the federal courts no longer need be carried on in the dark.
The way is now clear, consistent with recognized privileges, for the parties to obtain the
fullest possible knowledge of the issues and facts before trial. [Footnote 4]
There is an initial question as to which of the deposition-discovery rules is involved in this
case. Petitioner, in filing his interrogatories, thought that he was proceeding under Rule 33.
That rule provides that a party may serve upon any adverse party written interrogatories to
be answered by the party served. [Footnote 5] The District Court proceeded
Page 329 U. S. 502
on the same assumption in its opinion, although its order to produce and its contempt order
stated that both Rules 33 and 34 were involved. Rule 34 establishes a procedure whereby,
upon motion of any party showing good cause therefor and upon notice to all other parties,
the court may order any party to produce and permit the inspection and copying or
photographing of any designated documents, etc., not privileged, which constitute or
contain evidence material to any matter involved in the action and which are in his
possession, custody, or control. [Footnote 6]
The Circuit Court of Appeals, however, felt that Rule 26 was the crucial one. Petitioner, it
said, was proceeding by interrogatories, and, in connection with those interrogatories,
wanted copies of memoranda and statements secured from witnesses. While the court
believed that Rule 33 was involved at least as to the defending tug owners, it stated that
this rule could not be used as the basis for condemning Fortenbaugh's failure to disclose or
produce
Page 329 U. S. 503
the memoranda and statements, since the rule applies only to interrogatories addressed to
adverse parties, not to their agents or counsel. And Rule 34 was said to be inapplicable since
petitioner was not trying to see an original document and to copy or photograph it, within
the scope of that rule. The court then concluded that Rule 26 must be the one really
involved. That provides that the testimony of any person, whether a party or not, may be
taken by any party by deposition upon oral examination or written interrogatories for the
purpose of discovery or for use as evidence, and that the deponent may be examined
regarding any matter, not privileged, which is relevant to the subject matter involved in the
pending action, whether relating to the claim or defense of the examining party or of any

other party, including the existence, description, nature, custody, condition and location of
any books, documents or other tangible things. [Footnote 7]
Page 329 U. S. 504
The matter is not without difficulty in light of the events that transpired below. We believe,
however, that petitioner was proceeding primarily under Rule 33. He addressed simple
interrogatories solely to the individual tug owners, the adverse parties, as contemplated by
that rule. He did not, and could not under Rule 33, address such interrogatories to their
counsel, Fortenbaugh. Nor did he direct these interrogatories either to the tug owners or to
Fortenbaugh by way of deposition; Rule 26 thus could not come into operation. And it does
not appear from the record that petitioner filed a motion under Rule 34 for a court order
directing the production of the documents in question. Indeed, such an order could not have
been entered as to Fortenbaugh, since Rule 34, like Rule 33, is limited to parties to the
proceeding, thereby excluding their counsel or agents.
Thus, to the extent that petitioner was seeking the production of the memoranda and
statements gathered by Fortenbaugh in the course of his activities as counsel, petitioner
misconceived his remedy. Rule 33 did not permit him to obtain such memoranda and
statements as adjuncts to the interrogatories addressed to the individual tug owners. A
party clearly cannot refuse to answer interrogatories on the ground that the information
sought is solely within the knowledge of his attorney. But that is not this case. Here,
production was sought of documents prepared by a party's attorney after the claim has
arisen. Rule 33 does not make provision for such production, even when sought in
connection with permissible interrogatories. Moreover, since petitioner was also foreclosed
from securing them through an order under Rule 34, his only recourse was to take
Fortenbaugh's deposition under Rule 26 and to attempt to force Fortenbaugh to produce the
materials by use of a subpoena duces tecum in accordance with Rule 45. Holtzoff,
"Instruments of Discovery under the Federal Rules of Civil Procedure," 41
Page 329 U. S. 505
Mich.L.Rev. 205, 220. But, despite petitioner's faulty choice of action, the District Court
entered an order, apparently under Rule 34, commanding the tug owners and Fortenbaugh,
as their agent and counsel, to produce the materials in question. Their refusal led to the
anomalous result of holding the tug owners in contempt for failure to produce that which
was in the possession of their counsel, and of holding Fortenbaugh in contempt for failure to
produce that which he could not be compelled to produce under either Rule 33 or Rule 34.
But, under the circumstances, we deem it unnecessary and unwise to rest our decision upon
this procedural irregularity, an irregularity which is not strongly urged upon us and which
was disregarded in the two courts below. It matters little at this later stage whether
Fortenbaugh fails to answer interrogatories filed under Rule 26 or under Rule 33 or whether
he refuses to produce the memoranda and statements pursuant to a subpoena under Rule
45 or a court order under Rule 34. The deposition-discovery rules create integrated
procedural devices. And the basic question at stake is whether any of those devices may be
used to inquire into materials collected by an adverse party's counsel in the course of
preparation for possible litigation. The fact that the petitioner may have used the wrong
method does not destroy the main thrust of his attempt. Nor does it relieve us of the
responsibility of dealing with the problem raised by that attempt. It would be inconsistent
with the liberal atmosphere surrounding these rules to insist that petitioner now go through
the empty formality of pursuing the right procedural device only to reestablish precisely the
same basic problem now confronting us. We do not mean to say, however, that there may
not be situations in which the failure to proceed in accordance with a specific rule would be

important or decisive. But, in the present circumstances, for the purposes of this decision,
the procedural
Page 329 U. S. 506
irregularity is not material. Having noted the proper procedure, we may accordingly turn our
attention to the substance of the underlying problem.
In urging that he has a right to inquire into the materials secured and prepared by
Fortenbaugh, petitioner emphasizes that the deposition-discovery portions of the Federal
Rules of Civil Procedure are designed to enable the parties to discover the true facts, and to
compel their disclosure wherever they may be found. It is said that inquiry may be made
under these rules, epitomized by Rule 26, as to any relevant matter which is not privileged,
and, since the discovery provisions are to be applied as broadly and liberally as possible, the
privilege limitation must be restricted to its narrowest bounds. On the premise that the
attorney-client privilege is the one involved in this case, petitioner argues that it must be
strictly confined to confidential communications made by a client to his attorney. And, since
the materials here in issue were secured by Fortenbaugh from third persons, rather than
from his clients, the tug owners, the conclusion is reached that these materials are proper
subjects for discovery under Rule 26.
As additional support for this result, petitioner claims that to prohibit discovery under these
circumstances would give a corporate defendant a tremendous advantage in a suit by an
individual plaintiff. Thus, in a suit by an injured employee against a railroad or in a suit by an
insured person against an insurance company, the corporate defendant could pull a dark veil
of secrecy over all the pertinent facts it can collect after the claim arises merely on the
assertion that such facts were gathered by its large staff of attorneys and claim agents. At
the same time, the individual plaintiff, who often has direct knowledge of the matter in issue
and has no counsel until some time after his claim arises, could be compelled to disclose all
the intimate details of his case. By endowing with
Page 329 U. S. 507
immunity from disclosure all that a lawyer discovers in the course of his duties, it is said, the
rights of individual litigants in such cases are drained of vitality, and the lawsuit becomes
more of a battle of deception than a search for truth.
But framing the problem in terms of assisting individual plaintiffs in their suits against
corporate defendants is unsatisfactory. Discovery concededly may work to the disadvantage
as well as to the advantage of individual plaintiffs. Discovery, in other words, is not a oneway proposition. It is available in all types of cases at the behest of any party, individual or
corporate, plaintiff or defendant. The problem thus far transcends the situation confronting
this petitioner. And we must view that problem in light of the limitless situations where the
particular kind of discovery sought by petitioner might be used.
We agree, of course, that the deposition-discovery rules are to be accorded a broad and
liberal treatment. No longer can the time-honored cry of "fishing expedition" serve to
preclude a party from inquiring into the facts underlying his opponent's case. [Footnote 8]
Mutual knowledge of all the relevant facts gathered by both parties is essential to proper
litigation. To that end, either party may compel the other to disgorge whatever facts he has
in his possession. The deposition-discovery procedure simply advances the stage at which
the disclosure can be compelled from the time of trial to the period preceding it, thus
reducing the possibility of surprise. But discovery, like all matters of procedure, has ultimate
and necessary boundaries. As indicated by Rules 30(b) and (d) and 31(d), limitations
inevitably arise when it can be shown

Page 329 U. S. 508

that the examination is being conducted in bad faith or in such a manner as to annoy,
embarrass, or oppress the person subject to the inquiry. And, as Rule 26(b) provides, further
limitations come into existence when the inquiry touches upon the irrelevant or encroaches
upon the recognized domains of privilege.
We also agree that the memoranda, statements, and mental impressions in issue in this
case fall outside the scope of the attorney-client privilege, and hence are not protected from
discovery on that basis. It is unnecessary here to delineate the content and scope of that
privilege as recognized in the federal courts. For present purposes, it suffices to note that
the protective cloak of this privilege does not extend to information which an attorney
secures from a witness while acting for his client in anticipation of litigation. Nor does this
privilege concern the memoranda, briefs, communications, and other writings prepared by
counsel for his own use in prosecuting his client's case, and it is equally unrelated to writings
which reflect an attorney's mental impressions, conclusions, opinions, or legal theories.
But the impropriety of invoking that privilege does not provide an answer to the problem
before us. Petitioner has made more than an ordinary request for relevant, nonprivileged
facts in the possession of his adversaries or their counsel. He has sought discovery as of
right of oral and written statements of witnesses whose identity is well known and whose
availability to petitioner appears unimpaired. He has sought production of these matters
after making the most searching inquiries of his opponents as to the circumstances
surrounding the fatal accident, which inquiries were sworn to have been answered to the
best of their information and belief. Interrogatories were directed toward all the events prior
to, during, and subsequent to the sinking of the tug. Full and honest answers to such broad
inquiries would necessarily have included all
Page 329 U. S. 509
pertinent information gleaned by Fortenbaugh through his interviews with the witnesses.
Petitioner makes no suggestion, and we cannot assume, that the tug owners or Fortenbaugh
were incomplete or dishonest in the framing of their answers. In addition, petitioner was free
to examine the public testimony of the witnesses taken before the United States Steamboat
Inspectors. We are thus dealing with an attempt to secure the production of written
statements and mental impressions contained in the files and the mind of the attorney
Fortenbaugh without any showing of necessity or any indication or claim that denial of such
production would unduly prejudice the preparation of petitioner's case or cause him any
hardship or injustice. For aught that appears, the essence of what petitioner seeks either has
been revealed to him already through the interrogatories or is readily available to him direct
from the witnesses for the asking.
The District Court, after hearing objections to petitioner's request, commanded Fortenbaugh
to produce all written statements of witnesses and to state in substance any facts learned
through oral statements of witnesses to him. Fortenbaugh was to submit any memoranda he
had made of the oral statements, so that the court might determine what portions should be
revealed to petitioner. All of this was ordered without any showing by petitioner, or any
requirement that he make a proper showing, of the necessity for the production of any of
this material or any demonstration that denial of production would cause hardship or
injustice. The court simply ordered production on the theory that the facts sought were
material and were not privileged as constituting attorney-client communications.

In our opinion, neither Rule 26 nor any other rule dealing with discovery contemplates
production under such circumstances. That is not because the subject matter is privileged or
irrelevant, as those concepts are used in these
Page 329 U. S. 510
rules. [Footnote 9] Here is simply an attempt, without purported necessity or justification, to
secure written statements, private memoranda, and personal recollections prepared or
formed by an adverse party's counsel in the course of his legal duties. As such, it falls
outside the arena of discovery and contravenes the public policy underlying the orderly
prosecution and defense of legal claims. Not even the most liberal of discovery theories can
justify unwarranted inquiries into the files and the mental impressions of an attorney.
Historically, a lawyer is an officer of the court, and is bound to work for the advancement of
justice while faithfully protecting the rightful interests of his clients. In performing his various
duties, however, it is essential that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel.
Page 329 U. S. 511
Proper preparation of a client's case demands that he assemble information, sift what he
considers to be the relevant from the irrelevant facts, prepare his legal theories, and plan his
strategy without undue and needless interference. That is the historical and the necessary
way in which lawyers act within the framework of our system of jurisprudence to promote
justice and to protect their clients' interests. This work is reflected, of course, in interviews,
statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and
countless other tangible and intangible ways -- aptly though roughly termed by the Circuit
Court of Appeals in this case as the "work product of the lawyer." Were such materials open
to opposing counsel on mere demand, much of what is now put down in writing would
remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own.
Inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal
advice and in the preparation of cases for trial. The effect on the legal profession would be
demoralizing. And the interests of the clients and the cause of justice would be poorly
served.
We do not mean to say that all written materials obtained or prepared by an adversary's
counsel with an eye toward litigation are necessarily free from discovery in all cases. Where
relevant and nonprivileged facts remain hidden in an attorney's file, and where production of
those facts is essential to the preparation of one's case, discovery may properly be had.
Such written statements and documents might, under certain circumstances, be admissible
in evidence, or give clues as to the existence or location of relevant facts. Or they might be
useful for purposes of impeachment or corroboration. And production might be justified
where the witnesses are no longer available or can be reached only with difficulty. Were
production of written statements and documents to be precluded under
Page 329 U. S. 512
such circumstances, the liberal ideals of the deposition-discovery portions of the Federal
Rules of Civil Procedure would be stripped of much of their meaning. But the general policy
against invading the privacy of an attorney's course of preparation is so well recognized and
so essential to an orderly working of our system of legal procedure that a burden rests on
the one who would invade that privacy to establish adequate reasons to justify production
through a subpoena or court order. That burden, we believe, is necessarily implicit in the
rules as now constituted. [Footnote 10]

Rule 30(b), as presently written, gives the trial judge the requisite discretion to make a
judgment as to whether discovery should be allowed as to written statements secured from
witnesses. But, in the instant case, there was no room for that discretion to operate in favor
of the petitioner. No attempt was made to establish any reason why Fortenbaugh should be
forced to produce the written statements. There was only a naked, general demand for these
materials as of right, and a finding by the District Court that no recognizable privilege was
involved. That was insufficient to justify discovery under these circumstances, and the court
should have sustained the refusal of the tug owners and Fortenbaugh to produce.
But, as to oral statements made by witnesses to Fortenbaugh, whether presently in the form
of his mental impressions or memoranda, we do not believe that any showing of necessity
can be made under the circumstances of this case so as to justify production. Under ordinary
conditions, forcing an attorney to repeat or write out all that witnesses have told him and to
deliver the account
Page 329 U. S. 513
to his adversary gives rise to grave dangers of inaccuracy and untrustworthiness. No
legitimate purpose is served by such production. The practice forces the attorney to testify
as to what he remembers or what he saw fit to write down regarding witnesses' remarks.
Such testimony could not qualify as evidence, and to use it for impeachment or
corroborative purposes would make the attorney much less an officer of the court and much
more an ordinary witness. The standards of the profession would thereby suffer.
Denial of production of this nature does not mean that any material, nonprivileged facts can
be hidden from the petitioner in this case. He need not be unduly hindered in the
preparation of his case, in the discovery of facts, or in his anticipation of his opponents'
position. Searching interrogatories directed to Fortenbaugh and the tug owners, production
of written documents and statements upon a proper showing, and direct interviews with the
witnesses themselves all serve to reveal the facts in Fortenbaugh's possession to the fullest
possible extent consistent with public policy. Petitioner's counsel frankly admits that he
wants the oral statements only to help prepare himself to examine witnesses and to make
sure that he has overlooked nothing. That is insufficient under the circumstances to permit
him an exception to the policy underlying the privacy of Fortenbaugh's professional
activities. If there should be a rare situation justifying production of these matters,
petitioner's case is not of that type.
We fully appreciate the widespread controversy among the members of the legal profession
over the problem raised by this case. [Footnote 11] It is a problem that rests on what
Page 329 U. S. 514
has been one of the most hazy frontiers of the discovery process. But, until some rule or
statute definitely prescribes otherwise, we are not justified in permitting discovery in a
situation of this nature as a matter of unqualified right. When Rule 26 and the other
discovery rules were adopted, this Court and the members of the bar in general certainly did
not believe or contemplate that all the files and mental processes of lawyers were thereby
opened to the free scrutiny of their adversaries. And we refuse to interpret the rules at this
time so as to reach so harsh and unwarranted a result.
We therefore affirm the judgment of the Circuit Court of Appeals.
Affirmed.
[Footnote 1]

See cases collected by Advisory Committee on Rules for Civil Procedure in its Report of
Proposed Amendments (June, 1946), pp. 40-47; 5 F.R.D. 433, 457-460. See also 2 Moore's
Federal Practice (1945 Cum.Supp.), 26.12, pp. 155-159; Holtzoff, "Instruments of Discovery
under Federal Rules of Civil Procedure," 41 Mich.L.Rev. 205, 210-212; Pike and Willis,
"Federal Discovery in Operation," 7 Univ. of Chicago L.Rev. 297, 301-307.
[Footnote 2]
"The great weakness of pleading as a means for developing and presenting issues of fact for
trial lay in its total lack of any means for testing the factual basis for the pleader's
allegations and denials."
Sunderland, "The Theory and Practice of Pre-Trial Procedure," 36 Mich.L.Rev. 215, 216. See
also Ragland, Discovery Before Trial (1932), ch. I.
[Footnote 3]
2 Moore's Federal Practice (1938), 26.02, pp. 2445, 2455.
[Footnote 4]
Pike and Willis, "The New Federal Deposition-Discovery Procedure," 38 Col.L.Rev. 1179,
1436; Pike, "The New Federal Deposition-Discovery Procedure and the Rules of Evidence," 34
Ill.L.Rev. 1.
[Footnote 5]
Rule 33 reads:
"Any party may serve upon any adverse party written interrogatories to be answered by the
party served or, if the party served is a public or private corporation or a partnership or
association, by any officer thereof competent to testify in its behalf. The interrogatories shall
be answered separately and fully in writing under oath. The answers shall be signed by the
person making them, and the party upon whom the interrogatories have been served shall
serve a copy of the answers on the party submitting the interrogatories within 15 days after
the delivery of the interrogatories, unless the court, on motion and notice and for good
cause shown, enlarges or shortens the time. Objections to any interrogatories may be
presented to the court within 10 days after service thereof, with notice as in case of a
motion, and answers shall be deferred until the objections are determined, which shall be at
as early a time as is practicable. No party may, without leave of court, serve more than one
set of interrogatories to be answered by the same party."
[Footnote 6]
Rule 34 provides:
"Upon motion of any party showing good cause therefor and upon notice to all other parties,
the court in which an action is pending may (1) order any party to produce and permit the
inspection and copying or photographing, by or on behalf of the moving party, of any
designated documents, papers, books, accounts, letters, photographs, objects, or tangible
things, not privileged, which constitute or contain evidence material to any matter involved
in the action and which are in his possession, custody, or control; or (2) order any party to
permit entry upon designated land or other property in his possession or control for the
purpose of inspecting, measuring, surveying, or photographing the property or any

designated relevant object or operation thereon. The order shall specify the time, place, and
manner of making the inspection and taking the copies and photographs, and may prescribe
such terms and conditions as are just."
[Footnote 7]
The relevant portions of Rule 26 provide as follows:
"(a) WHEN DEPOSITIONS MAY BE TAKEN. By leave of court after jurisdiction has been
obtained over any defendant or over property which is the subject of the action or without
such leave after an answer has been served, the testimony of any person, whether a party
or not, may be taken at the instance of any party by deposition upon oral examination or
written interrogatories for the purpose of discovery or for use as evidence in the action or for
both purposes. The attendance of witnesses may be compelled by the use of subpoena as
provided in Rule 45. Depositions shall be taken only in accordance with these rules. The
deposition of a person confined in prison may be taken only by leave of court on such terms
as the court prescribes."
"(b) SCOPE OF EXAMINATION. Unless otherwise ordered by the court as provided by Rule
30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether relating to the claim
or defense of the examining party or to the claim or defense of any other party, including
the existence, description, nature, custody, condition, and location of any books, documents,
or other tangible things and the identity and location of persons having knowledge of
relevant facts."
[Footnote 8]
"One of the chief arguments against the 'fishing expedition' objection is the idea that
discovery is mutual -- that, while a party may have to disclose his case, he can at the same
time tie his opponent down to a definite position."
Pike and Willis, "Federal Discovery in Operation," 7 Univ. of Chicago L.Rev. 297, 303.
[Footnote 9]
The English courts have developed the concept of privilege to include all documents
prepared by or for counsel with a view to litigation.
"All documents which are called into existence for the purpose -- but not necessarily the sole
purpose -- of assisting the deponent or his legal advisers in any actual or anticipated
litigation are privileged from production. . . . Thus, all proofs, briefs, draft pleadings, etc., are
privileged; but not counsel's indorsement on the outside of his brief . . . nor any deposition
or notes of evidence given publicly in open Court. . . . So are all papers prepared by any
agent of the party bona fide for the use of his solicitor for the purposes of the action,
whether in fact so used or not. . . . Reports by a company's servant, if made in the ordinary
course of routine, are not privileged, even though it is desirable that the solicitor should
have them and they are subsequently sent to him; but if the solicitor has requested that
such documents shall always be prepared for his use and this was one of the reasons why
they were prepared, they need not by disclosed."
Odgers on Pleading and Practice (12th ed., 1939), p. 264.
See Order 31, rule 1, of the Rules of the Supreme Court, 1883, set forth in The Annual
Practice, 1945, p. 519, and the discussion following that rule. For a compilation of the

English cases on the matter, see 8 Wigmore on Evidence (3d ed., 1940), 2319, pp. 618622, notes.
[Footnote 10]
Rule 34 is explicit in its requirements that a party show good cause before obtaining a court
order directing another party to produce documents. See Report of Proposed Amendments
by Advisory Committee on Rules for Civil Procedure (June, 1946); 5 F.R.D. 433.
[Footnote 11]
See Report of Proposed Amendments by Advisory Committee on Rules for Civil Procedure
(June, 1946), pp. 44-47; 5 F.R.D. 433, 459, 460; Discovery Procedure Symposium before the
1946 Conference of the Third United States Circuit Court of Appeals, 5 F.R.D. 403; Armstrong,
"Report of the Advisory Committee on Federal Rules of Civil Procedure Recommending
Amendments," 5 F.R.D. 339, 353-357.
MR. JUSTICE JACKSON, concurring.
The narrow question in this case concerns only one of thirty-nine interrogatories which
defendants and their counsel refused to answer. As there was persistence in refusal after the
court ordered them to answer it, counsel and clients were committed to jail by the district
court until they should purge themselves of contempt.
The interrogatory asked whether statements were taken from the crews of the tugs involved
in the accident, or of any other vessel, and demanded,
"Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail
the exact provisions of any such oral statements or reports."
The question is simply whether such a demand is authorized by the rules relating to various
aspects of "discovery."
The primary effect of the practice advocated here would be on the legal profession itself. But
it too often is overlooked
Page 329 U. S. 515
that the lawyer and the law office are indispensable parts of our administration of justice.
Law-abiding people can go nowhere else to learn the ever changing and constantly
multiplying rules by which they must behave and to obtain redress for their wrongs. The
welfare and tone of the legal profession is therefore of prime consequence to society, which
would feel the consequences of such a practice as petitioner urges secondarily, but certainly.
"Discovery" is one of the working tools of the legal profession. It traces back to the equity
bill of discovery in English Chancery practice, and seems to have had a forerunner in
Continental practice. See Ragland, Discovery Before Trial (1932) 13-16. Since 1848, when
the draftsmen of New York's Code of Procedure recognized the importance of a better
system of discovery, the impetus to extend and expand discovery, as well as the opposition
to it, has come from within the Bar itself. It happens in this case that it is the plaintiff's
attorney who demands such unprecedented latitude of discovery and, strangely enough,
amicus briefs in his support have been filed by several labor unions representing plaintiffs as
a class. It is the history of the movement for broader discovery, however, that, in actual
experience, the chief opposition to its extension has come from lawyers who specialize in
representing plaintiffs, because defendants have made liberal use of it to force plaintiffs to

disclose their cases in advance. See Report of the Commission on the Administration of
Justice in New York State (1934) 330, 331; Ragland, Discovery Before Trial (1932) 35, 36.
Discovery is a two-edged sword, and we cannot decide this problem on any doctrine of
extending help to one class of litigants.
It seems clear, and long has been recognized, that discovery should provide a party access
to anything that is evidence in his case. Cf. Report of Commission on the Administration of
Justice in New York State (1934) 41, 42.
Page 329 U. S. 516
It seems equally clear that discovery should not nullify the privilege of confidential
communication between attorney and client. But those principles give us no real assistance
here, because what is being sought is neither evidence nor is it a privileged communication
between attorney and client.
To consider first the most extreme aspect of the requirement in litigation here, we find it
calls upon counsel, if he has had any conversations with any of the crews of the vessels in
question or of any other, to "set forth in detail the exact provision of any such oral
statements or reports." Thus, the demand is not for the production of a transcript in
existence, but calls for the creation of a written statement not in being. But the statement
by counsel of what a witness told him is not evidence when written plaintiff could not
introduce it to prove his case. What, then, is the purpose sought to be served by demanding
this of adverse counsel?
Counsel for the petitioner candidly said on argument that he wanted this information to help
prepare himself to examine witnesses, to make sure he overlooked nothing. He bases his
claim to it in his brief on the view that the Rules were to do away with the old situation
where a law suit developed into "a battle of wits between counsel." But a common law trial
is and always should be an adversary proceeding. Discovery was hardly intended to enable a
learned profession to perform its functions either without wits or on wits borrowed from the
adversary.
The real purpose and the probable effect of the practice ordered by the district court would
be to put trials on a level even lower than a "battle of wits." I can conceive of no practice
more demoralizing to the Bar than to require a lawyer to write out and deliver to his
adversary an account of what witnesses have told him. Even if his recollection were perfect,
the statement would be his language
Page 329 U. S. 517
permeated with his inferences. Everyone who has tried it knows that it is almost impossible
so fairly to record the expressions and emphasis of a witness that, when he testifies in the
environment of the court and under the influence of the leading question, there will not be
departures in some respects. Whenever the testimony of the witness would differ from the
"exact" statement the lawyer had delivered, the lawyer's statement would be whipped out to
impeach the witness. Counsel producing his adversary's "inexact" statement could lose
nothing by saying, "Here is a contradiction, gentlemen of the jury. I do not know whether it is
my adversary or his witness who is not telling the truth, but one is not." Of course, if this
practice were adopted, that scene would be repeated over and over again. The lawyer who
delivers such statements often would find himself branded a deceiver afraid to take the
stand to support his own version of the witness' conversation with him, or else he will have
to go on the stand to defend his own credibility -- perhaps against that of his chief witness,
or possibly even his client.

Every lawyer dislikes to take the witness stand, and will do so only for grave reasons. This is
partly because it is not his role; he is almost invariably a poor witness. But he steps out of
professional character to do it. He regrets it; the profession discourages it. But the practice
advocated here is one which would force him to be a witness not as to what he has seen or
done, but as to other witnesses' stories, and not because he wants to do so, but in selfdefense.
And what is the lawyer to do who has interviewed one whom he believes to be a biased,
lying, or hostile witness to get his unfavorable statements and know what to meet? He must
record and deliver such statements even though he would not vouch for the credibility of the
witness by calling him. Perhaps the other side would not want to
Page 329 U. S. 518
call him either, but the attorney is open to the charge of suppressing evidence at the trial if
he fails to call such a hostile witness even though he never regarded him as reliable or
truthful.
Having been supplied the names of the witnesses, petitioner's lawyer gives no reason why
he cannot interview them himself. If an employee-witness refuses to tell his story, he, too,
may be examined under the Rules. He may be compelled on discovery as fully as on the trial
to disclose his version of the facts. But that is his own disclosure -- it can be used to impeach
him if he contradicts it, and such a deposition is not useful to promote an unseemly
disagreement between the witness and the counsel in the case.
It is true that the literal language of the Rules would admit of an interpretation that would
sustain the district court's order. So the literal language of the Act of Congress which makes
"any writing or record . . . made as a memorandum or record of any . . . occurrence, or
event" admissible as evidence would have allowed the railroad company to put its
engineer's accident statements in evidence. Cf. Palmer v. Hoffman, 318 U. S. 109, 318 U. S.
111. But all such procedural measures have a background of custom and practice which was
assumed by those who wrote and should be by those who apply them. We reviewed the
background of the Act and the consequences on the trial of negligence cases of allowing
railroads and others to put in their statements and thus to shield the crew from crossexamination. We said, "Such a major change which opens wide the door to avoidance of
cross-examination should not be left to implication." 318 U.S. at 318 U. S. 114. We pointed
out that there, as here, the "several hundred years of history behind the Act . . . indicate the
nature of the reforms which it was designed to effect."
Page 329 U. S. 519
318 U.S. at 318 U. S. 115. We refused to apply it beyond that point. We should follow the
same course of reasoning here. Certainly nothing in the tradition or practice of discovery up
to the time of these Rules would have suggested that they would authorize such a practice
as here proposed.
The question remains as to signed statements or those written by witnesses. Such
statements are not evidence for the defendant. Palmer v. Hoffman, 318 U. S. 109. Nor should
I think they ordinarily could be evidence for the plaintiff. But such a statement might be
useful for impeachment of the witness who signed it, if he is called, and if he departs from
the statement. There might be circumstances, too, where impossibility or difficulty of access
to the witness or his refusal to respond to requests for information or other facts would show
that the interests of justice require that such statements be made available. Production of
such statements are governed by Rule 34 and on "Showing good cause therefor" the court

may order their inspection, copying or photographing. No such application has here been
made; the demand is made on the basis of right, not on showing of cause.
I agree to the affirmance of the judgment of the Circuit Court of Appeals which reversed the
district court.
MR. JUSTICE FRANKFURTER joins in this opinion.

Upjohn Co. v. United States, 449 U.S. 383 (1981)

Upjohn Co. v. United States
No. 79-886
Argued November 5, 1980
Decided January 13, 1981
449 U.S. 383
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Syllabus

When the General Counsel for petitioner pharmaceutical manufacturing corporation

(hereafter petitioner) was informed that one of its foreign subsidiaries had made
questionable payments to foreign government officials in order to secure government
business, an internal investigation of such payments was initiated. As part of this
investigation, petitioner's attorneys sent a questionnaire to all foreign managers seeking
detailed information concerning such payments, and the responses were returned to the
General Counsel. The General Counsel and outside counsel also interviewed the recipients of
the questionnaire and other company officers and employees. Subsequently, based on a
report voluntarily submitted by petitioner disclosing the questionable payments, the Internal
Revenue Service (IRS) began an investigation to determine the tax consequences of such
payments and issued a summons pursuant to 26 U.S.C. 762 demanding production of, inter
alia, the questionnaires and the memoranda and notes of the interviews. Petitioner refused
to produce the documents on the grounds that they were protected from disclosure by the
attorney-client privilege and constituted the work product of attorneys prepared in
anticipation of litigation. The United States then filed a petition in Federal District Court
seeking enforcement of the summons. That court adopted the Magistrate's recommendation
that the summons should be enforced, the Magistrate having concluded, inter alia, that the
attorney-client privilege had been waived, and that the Government had made a sufficient
showing of necessity to overcome the protection of the work product doctrine. The Court of
Appeals rejected the Magistrate's finding of a waiver of the attorney-client privilege, but held
that, under the so-called "control group test," the privilege did not apply
"[t]o the extent that the communications were made by officers and agents not responsible
for directing [petitioner's] actions in response to legal advice . . . for the simple reason that
the communications were not the 'client's'.'"
The court also held that the work product doctrine did not apply to IRS summonses.
Held:
1. The communications by petitioner's employees to counsel are covered by the attorneyclient privilege insofar as the responses to the
Page 449 U. S. 384
questionnaires and any notes reflecting responses to interview questions are concerned. Pp.
449 U. S. 389-397.
(a) The control group test overlooks the fact that such privilege exists to protect not only the
giving of professional advice to those who can act on it, but also the giving of information to
the lawyer to enable him to give sound and informed advice. While in the case of the
individual client the provider of information and the person who acts on the lawyer's advice
are one and the same, in the corporate context, it will frequently be employees beyond the
control group (as defined by the Court of Appeals) who will possess the information needed
by the corporation's lawyers. Middle-level -- and indeed lower-level -- employees can, by
actions within the scope of their employment, embroil the corporation in serious legal
difficulties, and it is only natural that these employees would have the relevant information
needed by corporate counsel if he is adequately to advise the client with respect to such
actual or potential difficulties. Pp. 449 U. S. 390-392.
(b) The control group test thus frustrates the very purpose of the attorney-client privilege by
discouraging the communication of relevant information by employees of the client
corporation to attorneys seeking to render legal advice to the client. The attorney's advice
will also frequently be more significant to noncontrol employees than to those who officially
sanction the advice, and the control group test makes it more difficult to convey full and

frank legal advice to the employees who will put into effect the client corporation's policy. P.
449 U. S. 392.
(c) The narrow scope given the attorney-client privilege by the Court of Appeals not only
makes it difficult for corporate attorneys to formulate sound advice when their client is faced
with a specific legal problem, but also threatens to limit the valuable efforts of corporate
counsel to ensure their client's compliance with the law. Pp. 449 U. S. 392-393.
(d) Here, the communications at issue were made by petitioner's employees to counsel for
petitioner, acting as such, at the direction of corporate superiors in order to secure legal
advice from counsel. Information not available from upper-echelon management was needed
to supply a basis for legal advice concerning compliance with securities and tax laws, foreign
laws, currency regulations, duties to shareholders, and potential litigation in each of these
areas. The communications concerned matters within the scope of the employees' corporate
duties, and the employees themselves were sufficiently aware that they were being
questioned in order that the corporation could obtain legal advice. Pp. 449 U. S. 394-395
2. The work product doctrine applies to IRS summonses. Pp. 449 U. S. 397-402.
(a) The obligation imposed by a tax summons remains subject to the traditional privileges
and limitations, and nothing in the language
Page 449 U. S. 385
or legislative.history of the IRS summons provisions suggests an intent on the part of
Congress to preclude application of the work product doctrine. P. 449 U. S. 398.
(b) The Magistrate applied the wrong standard when he concluded that the Government had
made a sufficient showing of necessity to overcome the protections of the work product
doctrine. The notes and memoranda sought by the Government constitute work product
based on oral statements. If they reveal communications, they are protected by the
attorney-client privilege. To the extent they do not reveal communications, they reveal
attorneys' mental processes in evaluating the communications. As Federal Rule of Civil
Procedure 6, which accords special protection from disclosure to work product revealing an
attorney's mental processes, and Hickman v. Taylor, 329 U. S. 495, make clear, such work
product cannot be disclosed simply on a showing of substantial need or inability to obtain
the equivalent without undue hardship. P. 449 U. S. 401.
600 F.2d 1223, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE,
MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in Parts I and III of which
BURGER, C.J., joined. BURGER, C.J., filed an opinion concurring in part and concurring in the
judgment, post, p. 449 U. S. 402.
Page 449 U. S. 386
JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari in this case to address important questions concerning the scope of
the attorney-client privilege in the corporate context and the applicability of the work
product doctrine in proceedings to enforce tax summonses. 445 U.S. 925. With respect to
the privilege question, the parties and various amici have described our task as one of
choosing between two "tests" which have gained adherents in the courts of appeals. We are
acutely aware, however, that we sit to decide concrete cases, and not abstract propositions

of law. We decline to lay down a broad rule or series of rules to govern all conceivable future
questions in this area, even were we able to do so. We can and do, however, conclude that
the attorney-client privilege protects the communications involved in this case from
compelled disclosure, and that the work product doctrine does apply in tax summons
enforcement proceedings.
I
Petitioner Upjohn Co. manufactures and sells pharmaceuticals here and abroad. In January,
1976, independent accountants conducting an audit of one of Upjohn's foreign subsidiaries
discovered that the subsidiary made payments to or for the benefit of foreign government
officials in order to secure government business. The accountants so informed petitioner Mr.
Gerard Thomas, Upjohn's Vice President, Secretary, and General Counsel. Thomas is a
member of the Michigan and New York Bars, and has been Upjohn's General Counsel for 20
years. He consulted with outside counsel and R. T. Parfet, Jr., Upjohn's Chairman of the
Board. It was decided that the company would conduct an internal investigation of what
were termed "questionable payments." As part of this investigation, the attorneys prepared
a letter containing a questionnaire which was sent to "All Foreign General and Area
Managers" over the Chairman's signature. The letter
Page 449 U. S. 387
began by noting recent disclosures that several American companies made "possibly illegal"
payments to foreign government officials, and emphasized that the management needed
full information concerning any such payments made by Upjohn. The letter indicated that
the Chairman had asked Thomas, identified as "the company's General Counsel,"
"to conduct an investigation for the purpose of determining the nature and magnitude of any
payments made by the Upjohn Company or any of its subsidiaries to any employee or official
of a foreign government."
The questionnaire sought detailed information concerning such payments. Managers were
instructed to treat the investigation as "highly confidential" and not to discuss it with anyone
other than Upjohn employees who might be helpful in providing the requested information.
Responses were to be sent directly to Thomas. Thomas and outside counsel also interviewed
the recipients of the questionnaire and some 33 other Upjohn officers or employees as part
of the investigation.
On March 26, 1976, the company voluntarily submitted a preliminary report to the Securities
and Exchange Commission on Form 8-K disclosing certain questionable payments. [Footnote
1] A copy of the report was simultaneously submitted to the Internal Revenue Service, which
immediately began an investigation to determine the tax consequences of the payments.
Special agents conducting the investigation were given lists by Upjohn of all those
interviewed and all who had responded to the questionnaire. On November 23, 1976, the
Service issued a summons pursuant to 26 U.S.C. 7602 demanding production of:
"All files relative to the investigation conducted under the supervision of Gerard Thomas to
identify payments to employees of foreign governments and any political
Page 449 U. S. 388
contributions made by the Upjohn Company or any of its affiliates since January 1, 1971, and
to determine whether any funds of the Upjohn Company had been improperly accounted for
on the corporate books during the same period."

"The records should include but not be limited to written questionnaires sent to managers of
the Upjohn Company's foreign affiliates, and memorandums or notes of the interviews
conducted in the United States and abroad with officers and employees of the Upjohn
Company and its subsidiaries."
App. 17a-18a. The company declined to produce the documents specified in the second
paragraph on the grounds that they were protected from disclosure by the attorney-client
privilege and constituted the work product of attorneys prepared in anticipation of litigation.
On August 31, 1977, the United States filed a petition seeking enforcement of the summons
under 26 U.S.C. 7402(b) and 7604(a) in the United States District Court for the Western
District of Michigan. That court adopted the recommendation of a Magistrate who concluded
that the summons should be enforced. Petitioners appealed to the Court of Appeals for the
Sixth Circuit, which rejected the Magistrate's finding of a waiver of the attorney-client
privilege, 600 F.2d 1223, 1227, n. 12, but agreed that the privilege did not apply
"[t]o the extent that the communications were made by officers and agents not responsible
for directing Upjohn's actions in response to legal advice . . . , for the simple reason that the
communications were not the 'client's.'"
Id. at 1225. The court reasoned that accepting petitioners' claim for a broader application of
the privilege would encourage upper-echelon management to ignore unpleasant facts and
create too broad a "zone of silence." Noting that Upjohn's counsel had interviewed officials
such as the Chairman and President, the Court of Appeals remanded to the District Court so
that a determination of who was
Page 449 U. S. 389
within the "control group" could be made. In a concluding footnote, the court stated that the
work product doctrine "is not applicable to administrative summonses issued under 26
U.S.C. 7602." Id. at 1228, n. 13.
II
Federal Rule of Evidence 501 provides that
"the privilege of a witness . . . shall be governed by the principles of the common law as
they may be interpreted by the courts of the United States in light of reason and
experience."
The attorney-client privilege is the oldest of the privileges for confidential communications
known to the common law. 8 J. Wigmore, Evidence 2290 (McNaughton rev.1961). Its
purpose is to encourage full and frank communication between attorneys and their clients,
and thereby promote broader public interests in the observance of law and administration of
justice. The privilege recognizes that sound legal advice or advocacy serves public ends and
that such advice or advocacy depends upon the lawyer's being fully informed by the client.
As we stated last Term in Trammel v. United States, 445 U. S. 40, 445 U. S. 51 (1980):
"The lawyer-client privilege rests on the need for the advocate and counselor to know all
that relates to the client's reasons for seeking representation if the professional mission is to
be carried out."
And in Fisher v. United States, 425 U. S. 391, 425 U. S. 403 (1976), we recognized the
purpose of the privilege to be "to encourage clients to make full disclosure to their
attorneys." This rationale for the privilege has long been recognized by the Court, see Hunt
v. Blackburn, 128 U. S. 464, 128 U. S. 470 (1888) (privilege "is founded upon the necessity,

in the interest and administration of justice, of the aid of persons having knowledge of the
law and skilled in its practice, which assistance can only be safely and readily availed of
when free from the consequences or the apprehension of disclosure"). Admittedly
complications in the application of the privilege arise when the client is a corporation, which,
in theory, is an artificial creature of the
Page 449 U. S. 390
law, and not an individual; but this Court has assumed that the privilege applies when the
client is a corporation, United States v. Louisville Nashville R. Co., 236 U. S. 318, 236 U. S.
336 (1915), and the Government does not contest the general proposition.
The Court of Appeals, however, considered the application of the privilege in the corporate
context to present a "different problem," since the client was an inanimate entity, and
"only the senior management, guiding and integrating the several operations, . . . can be
said to possess an identity analogous to the corporation as a whole."
600 F.2d at 1226. The first case to articulate the so-called "control group test" adopted by
the court below, Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 483, 485 (ED Pa.),
petition for mandamus and prohibition denied sub nom. General Electric Co. v. Kirkpatrick,
312 F.2d 742 (CA3 1962), cert. denied, 372 U.S. 943 (1963), reflected a similar conceptual
approach:
"Keeping in mind that the question is, is it the corporation which is seeking the lawyer's
advice when the asserted privileged communication is made?, the most satisfactory
solution, I think, is that, if the employee making the communication, of whatever rank he
may be, is in a position to control or even to take a substantial part in a decision about any
action which the corporation may take upon the advice of the attorney, . . . then, in effect,
he is (or personifies) the corporation when he makes his disclosure to the lawyer, and the
privilege would apply."
(Emphasis supplied.) Such a view, we think, overlooks the fact that the privilege exists to
protect not only the giving of professional advice to those who can act on it, but also the
giving of information to the lawyer to enable him to give sound and informed advice. See
Trammel, supra at 445 U. S. 51; Fisher, supra at 425 U. S. 403. The first step in the resolution
of any legal problem is ascertaining the factual background and sifting through the facts
Page 449 U. S. 391
with an eye to the legally relevant. See ABA Code of Professional Responsibility, Ethical
Consideration 4-1:
"A lawyer should be fully informed of all the facts of the matter he is handling in order for his
client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of
his independent professional judgment to separate the relevant and important from the
irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold
inviolate the confidences and secrets of his client not only facilitates the full development of
facts essential to proper representation of the client, but also encourages laymen to seek
early legal assistance."
See also Hickman v. Taylor, 329 U. S. 495, 329 U. S. 511 (1947).
In the case of the individual client, the provider of information and the person who acts on
the lawyer's advice are one and the same. In the corporate context, however, it will

frequently be employees beyond the control group as defined by the court below -- "officers
and agents . . . responsible for directing [the company's] actions in response to legal advice"
-- who will possess the information needed by the corporation's lawyers. Middle-level -- and
indeed lower-level employees can, by actions within the scope of their employment, embroil
the corporation in serious legal difficulties, and it is only natural that these employees would
have the relevant information needed by corporate counsel if he is adequately to advise the
client with respect to such actual or potential difficulties. This fact was noted in Diversified
Industries, Inc. v. Meredith, 572 F.2d 596 (CA8 1978) (en banc):
"In a corporation, it may be necessary to glean information relevant to a legal problem from
middle management or non-management personnel as well as from top executives. The
attorney dealing with a complex legal problem"
"is thus faced with a 'Hobson's choice.' If he interviews employees not having 'the very
highest authority,'
Page 449 U. S. 392
their communications to him will not be privileged. If, on the other hand, he interviews only
those employees with 'the very highest authority,' he may find it extremely difficult, if not
impossible, to determine what happened."
Id. at 608-609 (quoting Weinschel, Corporate Employee Interviews and the Attorney-Client
Privilege, 12 B.C.Ind. & Com.L.Rev. 873, 876 (1971)). The control group test adopted by the
court below thus frustrates the very purpose of the privilege by discouraging the
communication of relevant information by employees of the client to attorneys seeking to
render legal advice to the client corporation. The attorney's advice will also frequently be
more significant to noncontrol group members than to those who officially sanction the
advice, and the control group test makes it more difficult to convey full and frank legal
advice to the employees who will put into effect the client corporation's policy. See, e.g.,
Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1164 (SC 1974) ("After the lawyer
forms his or her opinion, it is of no immediate benefit to the Chairman of the Board or the
President. It must be given to the corporate personnel who will apply it").
The narrow scope given the attorney-client privilege by the court below not only makes it
difficult for corporate attorneys to formulate sound advice when their client is faced with a
specific legal problem, but also threatens to limit the valuable efforts of corporate counsel to
ensure their client's compliance with the law. In light of the vast and complicated array of
regulatory legislation confronting the modern corporation, corporations, unlike most
individuals, "constantly go to lawyers to find out how to obey the law," Burnham, The
Attorney-Client Privilege in the Corporate Arena, 24 Bus.Law. 901, 913 (1969), particularly
since compliance with the law in this area is hardly an instinctive matter, see, e.g., United
States v. United States Gypsum Co., 438 U. S. 422, 438 U. S. 440-441 (1978) ("the behavior
proscribed by the [Sherman] Act is
Page 449 U. S. 393
often difficult to distinguish from the gray zone of socially acceptable and economically
justifiable business conduct"). [Footnote 2] The test adopted by the court below is difficult to
apply in practice, though no abstractly formulated and unvarying "test" will necessarily
enable courts to decide questions such as this with mathematical precision. But if the
purpose of the attorney-client privilege is to be served, the attorney and client must be able
to predict with some degree of certainty whether particular discussions will be protected. An
uncertain privilege, or one which purports to be certain but results in widely varying
applications by the courts, is little better than no privilege at all. The very terms of the test

adopted by the court below suggest the unpredictability of its application. The test restricts
the availability of the privilege to those officers who play a "substantial role" in deciding and
directing a corporation's legal response. Disparate decisions in cases applying this test
illustrate its unpredictability. Compare, e.g., Hogan v. Zletz, 43 F.R.D. 308, 315-316 (ND
Okla.1967), aff'd in part sub nom. Natta v. Hogan, 392 F.2d 686 (CA10 1968) (control group
includes managers and assistant managers of patent division and research and development
department), with Congoleum Industries, Inc. v. GAF Corp., 49 F.R.D. 82, 83-85 (ED Pa.1969),
aff'd, 478 F.2d 1398 (CA3 1973) (control group includes only division and corporate vicepresidents, and not two directors of research and vice-president for production and
research).
Page 449 U. S. 394
The communications at issue were made by Upjohn employees [Footnote 3] to counsel for
Upjohn, acting as such, at the direction of corporate superiors in order to secure legal advice
from counsel. As the Magistrate found,
"Mr. Thomas consulted with the Chairman of the Board and outside counsel, and thereafter
conducted a factual investigation to determine the nature and extent of the questionable
payments and to be in a position to give leal advice to the company with respect to the
payments."
(Emphasis supplied.) 78-1 USTC 9277, pp. 83,598, 83,599. Information, not available from
upper-echelon management, was needed to supply a basis for legal advice concerning
compliance with securities and tax laws, foreign laws, currency regulations, duties to
shareholders, and potential litigation in each of these areas. [Footnote 4] The
communications concerned matters within the scope of the employees' corporate duties,
and the employees themselves were sufficiently aware that they were being questioned in
order that the corporation could obtain legal advice. The questionnaire identified Thomas as
"the company's General Counsel" and referred in its opening sentence to the possible
illegality of payments such as the ones on which information was sought. App. 40a. A
statement of policy accompanying the questionnaire clearly indicated the legal implications
of the investigation. The policy statement was issued "in order that there be no uncertainty
in the future as to the policy with respect to the practices which are the subject of this
investigation."
Page 449 U. S. 395
It began "Upjohn will comply with all laws and regulations," and stated that commissions or
payments "will not be used as a subterfuge for bribes or illegal payments" and that all
payments must be "proper and legal." Any future agreements with foreign distributors or
agents were to be approved "by a company attorney," and any questions concerning the
policy were to be referred "to the company's General Counsel." Id. at 165a-166a. This
statement was issued to Upjohn employees worldwide, so that even those interviewees not
receiving a questionnaire were aware of the legal implications of the interviews. Pursuant to
explicit instructions from the Chairman of the Board, the communications were considered
"highly confidential" when made, id. at 39a, 43a, and have been kept confidential by the
company. [Footnote 5] Consistent with the underlying purposes of the attorney-client
privilege, these communications must be protected against compelled disclosure.
The Court of Appeals declined to extend the attorney-client privilege beyond the limits of the
control group test for fear that doing so would entail severe burdens on discovery and create
a broad "zone of silence" over corporate affairs. Application of the attorney-client privilege to
communications such as those involved here, however, puts the adversary in no worse
position than if the communications had never taken place. The privilege only protects

disclosure of communications; it does not protect disclosure of the underlying facts by those
who communicated with the attorney:
"[T]he protection of the privilege extends only to communications, and not to facts. A fact is
one thing and a communication concerning that fact is an entirely different
Page 449 U. S. 396
thing. The client cannot be compelled to answer the question, 'What did you say or write to
the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely
because he incorporated a statement of such fact into his communication to his attorney."
Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (ED Pa.1962). See also
Diversified Industries, 572 F.2d at 611; State ex rel. Dudek v. Circuit Court, 34 Wis.2d 559,
580, 150 N.W.2d 387, 399 (1967) ("the courts have noted that a party cannot conceal a fact
merely by revealing it to his lawyer"). Here, the Government was free to question the
employees who communicated with Thomas and outside counsel. Upjohn has provided the
IRS with a list of such employees, and the IRS has already interviewed some 25 of them.
While it would probably be more convenient for the Government to secure the results of
petitioner's internal investigation by simply subpoenaing the questionnaires and notes taken
by petitioner's attorneys, such considerations of convenience do not overcome the policies
served by the attorney-client privilege. As Justice Jackson noted in his concurring opinion in
Hickman v. Taylor, 329 U.S. at 329 U. S. 516: "Discovery was hardly intended to enable a
learned profession to perform its functions . . . on wits borrowed from the adversary."
Needless to say, we decide only the case before us, and do not undertake to draft a set of
rules which should govern challenges to investigatory subpoenas. Any such approach would
violate the spirit of Federal Rule of Evidence 501. See S.Rep. No. 93-1277, p. 13 (1974) ("the
recognition of a privilege based on a confidential relationship . . . should be determined on a
case-by-case basis"); Trammel, 445 U.S. at 445 U. S. 47; United States v. Gillock, 445 U. S.
360, 445 U. S. 367 (1980). While such a "case-by-case" basis may to some slight extent
undermine desirable certainty in the boundaries of the attorney-client
Page 449 U. S. 397
privilege, it obeys the spirit of the Rules. At the same time, we conclude that the narrow
"control group test" sanctioned by the Court of Appeals in this case cannot, consistent with
"the principles of the common law as . . . interpreted . . . in the light of reason and
experience," Fed.Rule Evid. 501, govern the development of the law in this area.
III
Our decision that the communications by Upjohn employees to counsel are covered by the
attorney-client privilege disposes of the case so far as the responses to the questionnaires
and any notes reflecting responses to interview questions are concerned. The summons
reaches further, however, and Thomas has testified that his notes and memoranda of
interviews go beyond recording responses to his questions. App. 27a-28a, 91a-93a. To the
extent that the material subject to the summons is not protected by the attorney-client
privilege as disclosing communications between an employee and counsel, we must reach
the ruling by the Court of Appeals that the work product doctrine does not apply to
summonses issued under 26 U.S.C. 7602. [Footnote 6]
The Government concedes, wisely, that the Court of Appeals erred and that the work
product doctrine does apply to IRS summonses. Brief for Respondents 16, 48. This doctrine

was announced by the Court over 30 years ago in Hickman v. Taylor, 329 U. S. 495 (1947). In
that case, the Court rejected
"an attempt, without purported necessity or justification, to secure written statements,
private memoranda and personal recollections prepared or formed by an adverse party's
counsel in the course of his legal duties."
Id. at 329 U. S. 510. The Court noted that "it is essential that a lawyer work with
Page 449 U. S. 398
a certain degree of privacy," and reasoned that, if discovery of the material sought were
permitted,
"much of what is now put down in writing would remain unwritten. An attorney's thoughts,
heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would
inevitably develop in the giving of legal advice and in the preparation of cases for trial. The
effect on the legal profession would be demoralizing. And the interests of the clients and the
cause of justice would be poorly served."
Id. at 329 U. S. 511. The "strong public policy" underlying the work product doctrine was
reaffirmed recently in United States v. Nobles, 422 U. S. 225, 422 U. S. 236-240 (1975), and
has been substantially incorporated in Federal Rule of Civil Procedure 26(b)(3). [Footnote 7]
As we stated last Term, the obligation imposed by a tax summons remains "subject to the
traditional privileges and limitations." United States v. Euge, 444 U. S. 707, 444 U. S. 714
(1980). Nothing in the language of the IRS summons provisions or their legislative history
suggests an intent on the part of Congress to preclude application of the work product
doctrine. Rule 26(b)(3) codifies the work product doctrine, and the Federal Rules of Civil
Procedure are made applicable
Page 449 U. S. 399
to summons enforcement proceedings by Rule 81(a)(3). See Donaldson v. United States, 400
U. S. 517, 400 U. S. 528 (1971). While conceding the applicability of the work product
doctrine, the Government asserts that it has made a sufficient showing of necessity to
overcome its protections. The Magistrate apparently so found, 78-1 USTC

In Re Grand Jury Investigation No. 83-2-35, 723 F.2d 447 (6th Cir. 1983)Annotate
this Case
U.S. Court of Appeals for the Sixth Circuit - 723 F.2d 447 (6th Cir. 1983)
Argued June 23, 1983. Decided Dec. 7, 1983
Richard Durant, Detroit, Mich., for appellant.
Leonard R. Gilman, U.S. Atty., Detroit, Mich., F. William Soisson, Asst. U.S. Atty., for appellee.
Before ENGEL and KRUPANSKY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
KRUPANSKY, Circuit Judge.
Attorney Richard Durant (Durant) appeals a finding of contempt for failure to disclose to the
grand jury upon order of court the identity of his client. On March 1, 1983, Special Agent
Edwards (Edwards), of the Federal Bureau of Investigation (FBI), visited Durant's office and
explained that the FBI was investigating the theft of numerous checks made payable to
International Business Machines, Inc. (IBM). He advised that a number of the stolen checks
had been traced and deposited into various banking accounts under names of non-existent
organizations, at least one of which included the initials "IBM". Edwards produced a
photostatic copy of a check drawn upon one of these ficticious accounts which check was

made payable to Durant's law firm. Upon FBI inquiry, Durant conceded that this check for
$15,000 had been received and endorsed by his firm for services rendered to a client in two
cases, one of which was "finished" and the other of which was "open". Durant refused to
disclose the identity of his client to whose credit the proceeds had been applied, asserting
the attorney-client privilege.
Durant was subpoenaed to appear before the grand jury the following day, March 2, 1983,
where he again refused to identify his client, asserting the attorney-client privilege. The
government immediately moved the United States District Court for the Eastern District of
Michigan for an Order requiring Durant to provide the requested information. At a hearing
that same afternoon, Durant informed the court that disclosure of his client's identity could
incriminate that client in criminal activity so as to justify invoking the attorney-client
privilege. Citing to the court: In re Grand Jury Appearance (Michaelson), 511 F.2d 882 (9th
Cir.), cert. denied, 421 U.S. 978, 95 S. Ct. 1979, 44 L. Ed. 2d 469 (1975); Baird v. Koerner,
279 F.2d 623 (9th Cir. 1960). Durant additionally stated that "I do not know any of the facts
about this theft or anything else", and suggested that the requested information should be
obtained through other methods.1 The court adjudged that the privilege did not attach and
ordered Durant to identify his client. Upon refusal to comply with this Order, Durant was held
in contempt. Further proceedings (e.g. bond) were stayed until March 16, 1983, and
subsequently stayed until March 22, 1983.
In an obvious attempt to ascertain the identity of Durant's client in an alternate manner, the
United States issued a second subpoena to Durant on March 9, 1983, ordering him to appear
before the grand jury on March 16, 1983, and produce the following documents:
A listing of all clients of the law firm of Durant & Durant, P.C., and Richard Durant as of
February 18, 1983 including all clients with active cases and clients who owe fees or have
provided a retainer to the firm and all client ledger cards and other books, records and
documents reflecting or recording payments to the law firm for the period February 1, 1983
to March 1, 1983.
Durant moved to quash this subpoena duces tecum, again asserting the attorney-client
privilege. At the March 22, 1983 hearing on this motion, Durant re-asserted that production
of the subpoenaed documents could implicate his client in criminal activity. He additionally
observed that the FBI had admitted before Durant and the district court judge in-chambers
that an arrest would be effected by the FBI immediately following disclosure.2 In effect, the
identity of Durant's client was the last link of evidence necessary to effect an indictment.
The Court was advised for the first time by Durant that on March 2, 1983 the FBI requested,
under threat of harassment, that Durant "breach" the attorney-client privilege and identify
his client without informing the client.3
The Court was informed that disclosure of the requested information would not only
implicate Durant's client in criminal activity, but it would implicate that client in the very
criminal activity for which legal advice had been sought.
COURT: Do you contend and do you submit that the disclosure of the information which is
sought by this subpoena, quote, would implicate your client in the very criminal activity for
which legal advice was sought?
MR. DURANT: Yes, Your Honor, I do.
COURT: Other than--in what way do you contend that it would?
MR. DURANT: Sir, I'm in a catch-22 position again. I can't tell you. If I tell you, I have
explained things that my client obviously doesn't wish to be disclosed.

COURT: All right.

Durant failed to move the court for an ex parte in camera submission of evidence or
testimony to establish that his client had indeed sought legal advice relating to past criminal
activity involving theft of IBM checks. Nor did the district court, sua sponte, suggest an ex
parte in camera submission of evidence to probe Durant's blanket statements.
The United States then introduced the check into evidence in support of the proposition that
it was improbable that Durant's client had engaged Durant's services to defend against
impending charges of theft. A notation on the lower left hand corner of the check stated
"corporate legal services". The United States observed "That doesn't say anything about
crimes committed or to be committed or legal services in connection with criminal matters.
It is 'corporate legal services'; no suggestion of any criminal investigation." It was
additionally noted by the government that the FBI had not initiated the investigation nor had
it been informed of the theft of the IBM checks until March 1st, approximately two weeks
after the check had been received by Durant. Durant offered the following rebuttal:
I don't know when IBM knew it (i.e. knew that checks had been stolen), but Mr. Edwards,
when he appeared at my office, told me that it did involve checks from IBM, and I said that
on March 2nd, when I appeared here.
I think the mere fact that the check says for "corporate legal services" when it has been
admitted by the U.S. Attorney that such a corporation doesn't even exist, it is a fictional
entity, doesn't deny what I am representing to the Court.
The district court, opining that the issues joined in the first and second subpoenaes served
upon Durant were "essentially the same", withheld a decision of Durant's motion to quash
the second subpoena duces tecum pending appellate resolution of the court's contempt
Order of March 2, 1983.
Confronting the applicability of the attorney-client privilege as urged by Durant, it is initially
observed that the privilege is recognized in the federal forum. See: Fisher v. United States,
425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1975); Rule 501, Federal Rules of Evidence.
The burden of establishing the existence of the privilege rests with the person asserting it.
See: In re Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994, 101 S. Ct. 531, 66
L. Ed. 2d 291 (1980); Liew v. Breen, 640 F.2d 1046, 1049 (9th Cir. 1981); United States v.
Stern, 511 F.2d 1364, 1367 (2nd Cir. 1975); United States v. Landof, 591 F.2d 36, 38 (9th Cir.
1978); In re Grand Jury Empanelled February 14, 1978 (Markowitz), 603 F.2d 469, 474 (3d
Cir. 1979); United States v. Hodgson, 492 F.2d 1175 (10th Cir. 1974); United States v.
Tratner, 511 F.2d 248, 251 (7th Cir. 1975); United States v. Demauro, 581 F.2d 50, 55 (2d Cir.
1978); United States v. Ponder, 475 F.2d 37, 39 (5th Cir. 1973); United States v. Bartlett, 449
F.2d 700, 703 (8th Cir. 1971), cert. denied, 405 U.S. 932, 92 S. Ct. 990, 30 L. Ed. 2d 808
(1972). The attorney-client privilege exists
to protect confidential communications between a lawyer and his client in matters that
relate to the legal interests of society and the client.
In re Grand Jury Proceedings (Fine), 641 F.2d 199, 203 (5th Cir. 1981). Accord: In re Grand
Jury Subpoena (Slaughter), 694 F.2d 1258, 1260 (11th Cir. 1982); United States v. Hodge and
Zweig, 548 F.2d 1347, 1353 (9th Cir. 1977); In re Grand Jury Investigation (Tinari), 631 F.2d
17, 19 (3d Cir. 1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 869-70, 66 L. Ed. 2d 808
(1981). The policy behind protecting confidential communications is self-evident:

In order to promote freedom of consultation of legal advisors by clients, the apprehension of

compelled disclosure from the legal advisors must be removed; hence the law must prohibit
such disclosure except on the client's consent.
Hodge & Zweig, supra, 548 F.2d at 1353, citing 8 J. Wigmore, Evidence, Sec. 2291 at 545
(McNaughton Rev.Ed.1961). Accord Fisher, supra, 425 U.S. at 403, 96 S. Ct. at 1577 ("The
purpose of the privilege is to encourage clients to make full disclosure to their attorneys").4
See also: United States v. Goldfarb, 328 F.2d 280 (6th Cir.) cert. denied, 377 U.S. 976, 84 S.
Ct. 1883, 12 L. Ed. 2d 746 (1964).
Since the attorney-client privilege may serve as a mechanism to frustrate the investigative
or fact-finding process, it creates an inherent tension with society's need for full and
complete disclosure of all relevant evidence during implementation of the judicial process.
See: In re Grand Jury Proceedings (Jones), 517 F.2d 666, 671-72, (5th Cir. 1975) ("the
purpose of the privilege--to suppress truth--runs counter to the dominant aims of law"). In
particular, invocation of the privilege before the grand jury may jeopardize an effective and
comprehensive investigation into alleged violations of the law, and thereby thwart that
body's dual functions of determining "if there is probable cause to believe that a crime has
been committed and of protecting citizens against unfounded criminal prosecutions."
Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S. Ct. 2646, 2659, 33 L. Ed. 2d 626 (1972).5
These competing societal interests demand that application of the privilege not exceed that
which is necessary to effect the policy considerations underlying the privilege, i.e., "the
privilege must be upheld only in those circumstances for which it was created." In re Walsh,
supra, 623 F.2d at 492. Accord: Fisher, supra, 425 U.S. at 403, 96 S. Ct. at 1577 ("it applies
only where necessary to achieve its purpose.") As a derogation of the search for truth, the
privilege is to be narrowly construed. See: United States v. Weger, 709 F.2d 1151, 1154 (7th
Cir. 1983); Baird v. Koerner, 279 F.2d 623, 631-32 (9th Cir. 1960); United States v. Pipkins,
528 F.2d 559, 562-63 (5th Cir. 1976).
The federal forum is unanimously in accord with the general rule that the identity of a client
is, with limited exceptions, not within the protective ambit of the attorney-client privilege.
See: In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir. 1982) (en banc); In
re Grand Jury Proceedings (Jones), 517 F.2d 666, 670-71 (5th Cir. 1975); In re Grand Jury
Proceedings (Fine), 641 F.2d 199, 204 (5th Cir. 1981); Frank v. Tomlinson, 351 F.2d 384 (5th
Cir. 1965), cert. denied, 382 U.S. 1028, 86 S. Ct. 648, 15 L. Ed. 2d 540 (1966); In re Grand
Jury Witness (Salas), 695 F.2d 359, 361 (9th Cir. 1982); In re Grand Jury Subpoenas Duces
Tecum (Marger/Merenbach), 695 F.2d 363, 365 (9th Cir. 1982); In re Grand Jury Proceedings
(Lawson), 600 F.2d 215, 218 (9th Cir. 1979).6
The Circuits have embraced various "exceptions" to the general rule that the identity of a
client is not within the protective ambit of the attorney-client privilege. All such exceptions
appear to be firmly grounded in the Ninth Circuit's seminal decision in Baird v. Koerner, 279
F.2d 623 (9th Cir. 1960). In Baird the IRS received a letter from an attorney stating that an
enclosed check in the amount of $12,706 was being tendered for additional amounts due
from undisclosed taxpayers. When the IRS summoned the attorney to ascertain the identity
of the delinquent taxpayers the attorney refused identification asserting the attorney-client
privilege. The Ninth Circuit, applying California law, adjudged that the "exception" to the
general rule as pronounced in Ex parte McDonough, 170 Cal. 230, 149 P. 566 (1915)
controlled:
The name of the client will be considered privileged matter where the circumstances of the
case are such that the name of the client is material only for the purpose of showing an
acknowledgement of guilt on the part of such client of the very offenses on account of which
the attorney was employed.

Baird, supra, 279 F.2d at 633. The identity of the Baird taxpayer was adjudged within this
exception to the general rule. The Ninth Circuit has continued to acknowledge this
exception:
A significant exception to this principle of non-confidentiality holds that such information
may be privileged when the person invoking the privilege is able to show that a strong
possibility exists that disclosure of the information would implicate the client in the very
matter for which legal advice was sought in the first case.
In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), 695 F.2d 363, 365 (9th Cir.
1982). Accord: United States v. Hodge and Zweig, 548 F.2d 1347, 1353 (9th Cir. 1977); In re
Grand Jury Proceedings (Lawson), 600 F.2d 215, 218 (9th Cir. 1979); United States v.
Sherman, 627 F.2d 189, 190-91 (9th Cir. 1980); In re Grand Jury Witness (Salas), 695 F.2d
359, 361 (9th Cir. 1982). This exception, which can perhaps be most succinctly characterized
as the "legal advice" exception, has also been recognized by other circuits. See: In re Walsh,
623 F.2d 489, 495 (7th Cir.), cert. denied, 449 U.S. 994, 101 S. Ct. 531, 66 L. Ed. 2d 291
(1980); In re Grand Jury Investigation (Tinari), 631 F.2d 17, 19 (3d Cir. 1980), cert. denied,
449 U.S. 1083, 101 S. Ct. 869-70, 66 L. Ed. 2d 808 (1981). Since the legal advice exception
is firmly grounded in the policy of protecting confidential communications, this Court adopts
and applies its principles herein. See: In re Grand Jury Subpoenas Duces Tecum
(Marger/Merenbach), supra.
It should be observed, however, that the legal advice exception may be defeated through a
prima facie showing that the legal representation was secured in furtherance of present or
intended continuing illegality, as where the legal representation itself is part of a larger
conspiracy. See: In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), supra, 695
F.2d at 365 n. 1; In re Walsh, 623 F.2d 489, 495 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.
Ct. 531, 66 L. Ed. 2d 291 (1980); In re Grand Jury Investigation (Tinari), 631 F.2d 17, 19 (3d
Cir. 1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 869, 66 L. Ed. 2d 808 (1981); In re Grand
Jury Proceedings (Lawson), 600 F.2d 215, 218 (9th Cir. 1979); United States v. Friedman, 445
F.2d 1076, 1086 (9th Cir. 1971). See also: Clark v. United States, 289 U.S. 1, 15, 53 S. Ct.
465, 469, 77 L. Ed. 993 (1933); In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 102829 (5th Cir. 1982) (en banc).
Another exception to the general rule that the identity of a client is not privileged arises
where disclosure of the identity would be tantamount to disclosing an otherwise protected
confidential communication. In Baird, supra, the Ninth Circuit observed:
If the identification of the client conveys information which ordinarily would be conceded to
be part of the usual privileged communication between attorney and client, then the
privilege should extend to such identification in the absence of other factors.
Id., 279 F.2d at 632. Citing Baird, the Fourth Circuit promulgated the following exception:
To the general rule is an exception, firmly bedded as the rule itself. The privilege may be
recognized where so much of the actual communication has already been disclosed that
identification of the client amounts to disclosure of a confidential communication.
NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir. 1965). Accord: United States v. Tratner, 511 F.2d
248, 252 (7th Cir. 1975); Colton v. United States, 306 F.2d 633, 637 (2d Cir. 1962), cert.
denied, 371 U.S. 951, 83 S. Ct. 505, 9 L. Ed. 2d 499 (1963); Tillotson v. Boughner, 350 F.2d
663, 666 (7th Cir. 1965); United States v. Pape, 144 F.2d 778, 783 (2d Cir. 1944). See also:
Chirac v. Reinecker, 24 U.S. (11 Wheat) 280, 6 L. Ed. 474 (1826). The Seventh Circuit has
added to the Harvey exception the following emphasized caveat:

The privilege may be recognized where so much of the actual communication has already
been disclosed [not necessarily by the attorney, but by independent sources as well ] that
identification of the client [or of fees paid ] amounts to disclosure of a confidential
communication.
United States v. Jeffers, 532 F.2d 1101, 1115 (7th Cir. 1976) (emphasis added). The Third
Circuit, applying this exception, has emphasized that it is the link between the client and the
communication, rather than the link between the client and the possibility of potential
criminal prosecution, which serves to bring the client's identity within the protective ambit of
the attorney-client privilege. See: In re Grand Jury Empanelled February 14, 1978
(Markowitz), 603 F.2d 469, 473 n. 4 (3d Cir. 1979). Like the "legal advice" exception, this
exception is also firmly rooted in principles of confidentiality.
Another exception, articulated in the Fifth Circuit's en banc decision of In re Grand Jury
Proceedings (Pavlick), 680 F.2d 1026 (5th Cir. 1982) (en banc),7 is recognized when
disclosure of the identity of the client would provide the "last link" of evidence:
We have long recognized the general rule that matters involving the payment of fees and
the identity of clients are not generally privileged. In re Grand Jury Proceedings, (United
States v. Jones), 517 F.2d 666 (5th Cir. 1975); see cases collected id. at 670 n. 2. There we
also recognized, however, a limited and narrow exception to the general rule, one that
obtains when the disclosure of the client's identity by his attorney would have supplied the
last link in an existing chain of incriminating evidence likely to lead to the client's
indictment.
Id. at 1027.8 Upon careful consideration this Court concludes that, although language exists
in Baird to support viability of Pavlick's "last link" exception,9 the exception is simply not
grounded upon the preservation of confidential communications and hence not justifiable to
support the attorney-client privilege. Although the last link exception may promote concepts
of fundamental fairness against self-incrimination, these concepts are not proper
considerations to invoke the attorney-client privilege. Rather, the focus of the inquiry is
whether disclosure of the identity would adversely implicate the confidentiality of
communications. Accordingly, this Court rejects the last link exception as articulated in
Pavlick.
Turning to the facts at bar, it is observed that Durant asserted three justifications for
invocation of the attorney-client privilege. First, at the March 2 hearing, he stated that
disclosure might possibly implicate the client in criminal activity. As this justification has no
roots in concepts of confidentiality or communication, it cannot be advanced to support an
abdication of the general rule that identity of a client is not privileged. Second, at the March
22 hearing, Durant informed the Court that the FBI had informed him that an arrest would be
effected upon disclosure of the identity of Durant's client. This is simply an assertion that
disclosure would provide the last link of evidence to support an indictment as articulated in
Pavlick --a precedent which is herein rejected.
Third, at the March 22 hearing, Durant submitted that disclosure was justified under the
"legal advice" exception embraced by the Ninth Circuit. Seeking to invoke this exception, it
was incumbent upon Durant to "show that a strong possibility exist [ed] that disclosure of
the information would implicate the client in the very matter for which legal advice [had
been] sought in the first case". In re Grand Jury Subpoenas Duces Tecum
(Marger/Merenbach), supra, 695 F.2d at 365 (emphasis added). A well recognized means for
an attorney to demonstrate the existence of an exception to the general rule, while
simultaneously preserving confidentiality of the identity of his client, is to move the court for
an in camera ex parte hearing. See: In re Grand Jury Witness (Salas), supra, 695 F.2d at 362;
(proper procedure to establish existence of "legal advice" exception was to make an in

camera showing); In re Grand Jury Empanelled February 14, 1978 (Markowitz), supra, 603
F.2d at 474 (referring to procedure to be employed by an attorney who asserts Fifth
Amendment privilege); In re Grand Jury Subpoena (Slaughter), supra, 694 F.2d at 1260 n. 2
(United States requested in its subpoena that any averred privileged matters be deleted and
the original copy retained intact for possible in camera inspection by the district court); In re
Walsh, supra, 623 F.2d at 494 n. 5; United States v. Tratner, supra, 511 F.2d at 252.
Since the burden of establishing the existence of the privilege rests with the party asserting
the privilege, it is incumbent upon the attorney to move for an in camera ex parte hearing if
one is desired. In the action sub judice, Durant failed to so move. Rather, he rested on his
blanket assertion that his client had initially sought legal advice relating to matters involving
the theft of IBM checks. Such unsupported assertions of privilege are strongly disfavored.
See: United States v. Cromer, 483 F.2d 99, 102 (9th Cir. 1973); United States v. Davis, 636
F.2d 1028, 1044 n. 20 (5th Cir. 1981); In re Grand Jury Witness (Salas), supra, 695 F.2d at
362. Further, it is pertinent to observe that at the first hearing on March 2 Durant had
expressly disavowed knowledge of the existence of stolen IBM checks. This statement
significantly diminishes the credibility of Durant's subsequent March 22 representation that
his client had indeed engaged Durant's services for past activity relating to stolen IBM
checks. Accordingly, Durant clearly failed to satisfy his burden of demonstrating a "strong
possibility" that disclosure of the identity of his client would implicate that client in the very
manner for which legal advice had been initially sought.
Last, it is observed that Durant did not represent to the district court that disclosure of the
identity of his client would amount to a disclosure of a confidential communication. See:
NLRB v. Harvey, supra; United States v. Jeffers, supra. Not having advanced this exception to
the general rule, it follows axiomatically that Durant failed to satisfy the burden of
establishing its existence. Nor does the record suggest the viability of this exception so as to
justify a remand.
In sum, Durant has failed to establish the existence of any exception to the general rule that
disclosure of the identity of a client is not within the protective ambit of the attorney-client
privilege. Therefore the contempt Order of the district court issued against Durant is hereby
AFFIRMED.
1
Durant stated:
I should add that if the facts as the agents have discussed them with me are correct and
there is a substantial number of checks flowing around the city, all those checks come back
to the drawee bank with bank endorsements on the back. It should be, it seems to me,
equally possible, without violating the attorney-client privilege, for the agents to find out
who presented, who cashed and to trace the money through normal commercial channels, to
say nothing of the fact that who opens the mail at IBM now obviously becomes of significant
importance.
2
Durant stated:
I would remind the Court that when, through the courtesy of the Court, we had a session inchambers with the members of the FBI present, as well as the U.S. Attorney and myself, the
FBI members specifically said--I can't remember which one--specifically said that as soon as
we get the name of that client, we are going to arrest the client * * *
The substance of this statement was never challenged either directly or indirectly by either
the district court or the United States.

3
Durant stated:
Furthermore--and I put this on the record after consultation with my son, who told me I
should have expressed it on March 2nd. During the time the Court recessed, preparatory to
rendering an opinion, this gentlemen--the FBI agent whose name escapes me for the
moment--and I, the U.S. Attorney were outside, and I was given the proposition that I should
tell the FBI the identity of my client, but not tell my client that I had done so, so that the FBI
presumably could move in.
When I rejected what was propositioned to me that I should give the identity but delay
telling my client that I had done so, so presumably the same result could occur--when I
rejected that, I hope in jest, it was pointed out that I could be printed and held
incommunicado for six or seven hours while the circuit was written [ridden [sic]] with me,
and I implied it was a good thing that I had instructed my office that if they hadn't heard
from me by 3:30, to come over here with a writ of habeas corpus. I made a phone call.
4
The Court additionally noted
As a practical matter, if the client knows that damaging information could more readily be
obtained from the attorney following disclosure than from himself in the absence of
disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to
obtain fully refined legal advice.
425 U.S. at 403, 96 S. Ct. at 1577.
5
It is fundamental, however, that although the subpoena powers of the grand jury are
extremely broad, it may not use its authority to "violate a valid privilege, whether
established by the Constitution, statutes, or the common law." United States v. Calandra,
414 U.S. 338, 346, 94 S. Ct. 613, 619, 38 L. Ed. 2d 561 (1974)
6
This general rule applies equally to fee arrangements:
In the absence of special circumstances, the amount of money paid or owed to an attorney
by his client is generally not within the attorney-client privilege. In re Michaelson, 511 F.2d
882, 888 (9th Cir.) cert. denied, 421 U.S. 978, 95 S. Ct. 1979, 44 L. Ed. 2d 469 (1975); see In
re Grand Jury Proceedings, 517 F.2d 666, 670-71 (5th Cir. 1975). The receipt of fees from a
client is not usually within the privilege because the payment of a fee is not normally a
matter of confidence or a communication. United States v. Hodgson, 492 F.2d 1175 (10th Cir.
1974). This Court has held that ministerial or clerical services of an attorney in transferring
funds to or from a client is not a matter of confidence protected by the attorney-client
privilege. United States v. Bartone, 400 F.2d 459 (6 Cir. 1968), cert. denied, 393 U.S. 1027,
89 S. Ct. 631, 21 L. Ed. 2d 571 (1969).
United States v. Haddad, 527 F.2d 537, 538-39 (6th Cir. 1975).
7
It appears that Pavlick sub silentio overruled In re Grand Jury Proceedings (Fine), 641 F.2d
199 (5th Cir. 1981), wherein a panel of the Fifth Circuit applied the "legal advice" exception
rather than a "last link" exception

8
The Eleventh Circuit has adopted the "last link" exception as pronounced in Pavlick. See: In
re Grand Jury Proceedings (Twist), 689 F.2d 1351, 1352-3 (11th Cir. 1982); In re Grand Jury
Subpoena (Slaughter), 694 F.2d 1258, 1260 (11th Cir. 1982). See also: In re Grand Jury
Proceedings (Jones), 517 F.2d 666 (5th Cir. 1975), adopted by the Eleventh Circuit as
precedent in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981). Compare, however,
In re Grand Jury Proceedings, (Freeman), 708 F.2d 1571, 1573-74 (11th Cir. 1983), affirming
a contempt order issued by a district court which applied the "legal advice" rather than "last
link" exception
9
Although Baird observed in passing that disclosure of the identity of the clients "may well be
the link that could form the chain of testimony necessary to convict [the taxpayers] of a
federal crime", 279 F.2d at 633, the Court repeatedly emphasized that the retention of the
attorney and remission of a check to the IRS was tantamount to a communication or
admission from the clients to the attorney that "they had not paid a sufficient amount in
income taxes some one or more years in the past". Id

UNITED STATES v. McPARTLIN

NOS. 77-2258, 77-2259, 77-2274, 77-2275 AND 77-2280.
595 F.2d 1321 (1979)
UNITED STATES of America, Plaintiff-Appellee, v. Robert McPARTLIN et al., DefendantAppellants.
United States Court of Appeals, Seventh Circuit.
As Amended on Denial of Rehearing and Rehearing April 23, 1979.
Edward J. Calihan, Jr., William J. Harte, Chicago, Ill., Herbert J. Miller, Jr., Washington, D. C.,
Joseph A. Lamendella, Harvey M. Silets, John J. Jiganti, Chicago, Ill., for defendantsappellants.
Gordon B. Nash, Joan B. Safford, Candace J. Fabri, Asst. U. S. Attys., Chicago, Ill., for plaintiffappellee.
Before PELL, SPRECHER and TONE, Circuit Judges.
As Amended on Denial of Rehearing and Rehearing En Banc April 23, 1979.
TONE, Circuit Judge.

The appellants were convicted, in a nine-week jury trial, of conspiring to violate the wire and
travel fraud statutes and of substantive violations of those statutes.
The indictment charged that defendant Frederick B. Ingram,1 chairman of the board of the
Louisiana-based Ingram Corporation, had paid defendant Robert F. McPartlin, an Illinois
legislator, defendant Valentine Janicki, a trustee for the Metropolitan Sanitary District, and
others more than $900,000 to secure for the Ingram Corporation a multi-million dollar
sludge-hauling contract with the District. Defendants Franklin H. Weber, a businessman, and
Edwin T. Bull, president of a towing company, were alleged to be intermediaries through
whom many of the payments were made. William J. Benton, vice president of Ingram
Corporation, was an unindicted co-conspirator who played a major role in the conspiracy and
testified as a witness for the prosecution. The defendants were convicted of numerous
violations of the Travel Act,
[595 F.2d 1328]
18 U.S.C. 1952, and the Wire, Radio, Television Fraud Act, 18 U.S.C. 1343, and of
conspiring to violate those acts in violation of 18 U.S.C. 371. The jury acquitted three other
defendants, E. Bronson Ingram, brother of Frederick B. Ingram and an officer of Ingram
Corporation, Chester Majewski, a Metropolitan Sanitary District trustee, and Bart T. Lynam,
General Supervisor of the Sanitary District.2
The defendants urge as grounds for reversal the district court's denial of motions for
severance, a ruling on the alleged withholding by the prosecution of evidence favorable to
the defendants until the beginning of the trial, rulings admitting and excluding evidence,
certain instructions to the jury, and other alleged trial errors. In this portion of the opinion
the facts are stated and the issues arising from the denial of severance are decided. Judge
Pell and Judge Sprecher have written, and I concur in, the portions of the opinion dealing
with the other issues.
The Facts
The Sanitary District is a municipal corporation with primary responsibility for disposing of
sewage from Chicago and surrounding areas. The District's business is governed by an
elected Board of Trustees3 and managed by a professional staff, which from time to time
makes recommendations to the Board concerning major undertakings of the District.
The Sanitary District operates a sewage treatment plant in Stickney, Illinois. Until 1971 the
sludge produced as a by-product was disposed of by pumping it into nearby lagoons. Early
that year, because the lagoons were rapidly being filled and efforts to clean them had failed,
the District announced plans to have the sludge transported to Fulton County, Illinois, about
160 miles southwest of Stickney, and solicited bids on the project, which were due on March
19, 1971.
Viewed in the light most favorable to the prosecution, the evidence showed that Benton,
acting with the knowledge and complicity of Frederick Ingram and through intermediaries
Bull and Weber, bribed McPartlin and Janicki to cause the sludge-hauling contract to be
awarded to Ingram Corporation and one of its subsidiaries, and later bribed the same
officials to secure favorable treatment under the contract and modifications of the contract.
The details were as follows:
When the District solicited bids on the sludge-hauling project, defendant Bull assisted Frank
Oberle, an employee of Ingram Contractors, Inc., a wholly owned subsidiary of Ingram
Corporation, in investigating the new proposal. During the week before the bids were to be
submitted, Bull visited Robert Howson, a vice president of Ingram Contractors, Inc., in New
Orleans, Louisiana, and told Howson that if Ingram Corporation expected to secure the

contract, it would have to make a "political contribution." Howson responded that he was not
in that sort of business, but then took Bull to meet William J. Benton, vice president of
Ingram Corporation and president of Ingram Contractors, Inc.
Ingram Corporation, Burlington Northern, Inc., and the Atchison, Topeka and Santa Fe
Railway Company were the leading contenders among those submitting bids on March 19,
1971. To negotiate with these three bidders, the Sanitary District established a committee,
which met with representatives of the bidders for the first time on March 23, 1971.
That evening Bull, Oberle, and Benton met in Benton's hotel room, where they were later
joined by defendant Weber. After Bull had introduced Weber to Benton, Bull and Oberle left
the room. Weber then told Benton that if Ingram Corporation wanted the sludge-hauling
contract, it
[595 F.2d 1329]
would have to make a $250,000 "political contribution." Benton replied that he would have
to get approval from his superiors. After agreeing to meet Benton the next day, Weber left.
Benton then telephoned defendant Frederick Ingram to inform him of Weber's "political
contribution" proposal. Ingram agreed, provided that the contribution could be added to the
cost of the contract.
On March 24, 1971, Benton again met with Bull, who expressed his belief that if the Ingram
Corporation accepted Weber's proposal, it would get the contract. Bull also told Benton that
if the corporation did get the contract, he wanted $100,000 in addition to anything it paid
Weber. At another meeting later in the day, Weber asked Benton to open an account at a
Chicago bank to demonstrate Ingram Corporation's "good faith." That same day, Benton
opened an account at the First National Bank of Chicago.
The following week, Weber called Benton and told him that Burlington Northern, Inc. had
offered to make a $295,000 political contribution. According to Weber, it was therefore
necessary for Ingram Corporation to raise its contribution to $450,000, including a $150,000
cash payment before the contract was awarded. Again Benton consulted Frederick Ingram,
who again agreed on condition that the contribution could be added to the contract price.
Benton communicated Ingram Corporation's approval to Weber, but said that the
corporation could not raise $150,000 in cash on such short notice. Weber replied that some
of the $150,000 had to be paid by April 3, 1971.
On April 3, 1971, Weber and McPartlin went to Benton's Chicago hotel room, where Weber
introduced McPartlin to Benton as the man who handled all political contributions for the
Democratic Party in Illinois. McPartlin assured Benton that Ingram Corporation would receive
at least $21,500,000 in total revenue from the sludge-hauling contract. Benton gave
McPartlin $75,000 in cash, including several one thousand dollar bills. On April 6, 1971,
Weber deposited nine one thousand dollar bills in the account of one of his defunct
corporations, Illinois Southern Materials.
On April 6, 1971, Weber telephoned Benton, asking for $25,000 in cash immediately to
secure the cooperation of three Sanitary District staff members. When Benton protested that
he could not deliver $25,000 cash on such short notice, Weber suggested that Ingram
Corporation issue a check in that amount to Bull Towing Company, which Benton caused to
be done the next day. On April 8, 1971, Edwin Bull deposited the Ingram check in the
account of Bull Towing Company and, at the same time, withdrew $25,000 in cash from the
account.
The Sanitary District requested the three bidders on the sludge-hauling contract to submit
new bids by April 15, 1971. Santa Fe declined. Burlington Northern submitted a revised bid

of $18,300,000. Oberle submitted Ingram Corporation's revised bid of $16,990,000, after

which he returned to his hotel room, where he received a telephone call from either Benton
or Weber. The caller instructed him to go to the bar at the Continental Plaza Hotel to meet
defendant Janicki, which Oberle did.4 At the meeting in the bar Janicki told Oberle to raise
Ingram's revised bid to $17,990,000. Oberle then returned to his hotel room and telephoned
Benton for advise. Benton instructed Oberle to attend the Sanitary District negotiating
committee meeting scheduled for that afternoon. While attending the meeting, Oberle
received telephone instructions from Benton to raise the Ingram bid by $1,000,000 to
$17,990,000. Oberle did so.
On April 22, 1971, the Sanitary District Board of Trustees voted to award the contract to
Ingram Corporation. Between that date and May 12, 1971, a contract was drafted by
members of the Sanitary District staff and Ingram Corporation representatives, including
John Donnelly, president of Ingram Barge Company, the Ingram Corporation subsidiary that
would transport the sludge under the contract.
[595 F.2d 1330]
The staff insisted on a liquidated damages clause authorizing the District to prescribe the
amount of sludge to be transported in any 24-hour period and providing that Ingram
Corporation would be assessed a penalty for each ton of sludge not transported, as
prescribed, in any 24-hour period. Donnelly, after initially refusing to agree to the provision,
discussed it with Benton, who told him to agree to it. Only after talking with Frederick
Ingram, however, did Donnelly accede to inclusion of the liquidated damages clause.
The contract provided that Ingram Corporation would construct additions to the treatment
facilities at Stickney and an unloading dock and pump station in Fulton County, for which
work the Sanitary District was to pay $733,000. Ingram Corporation was also to construct a
pipeline over property not owned by the District, for which construction the District agreed
to pay $68,000 per month for 36 months, a total of $2,448,000. The contract also provided
that Ingram Corporation would receive $1.802 per ton of sludge hauled from Stickney to
Fulton County. The parties estimated that over the life of the contract 8,000,000 tons of
sludge would be transported.
On May 19, 1971, Weber and Benton met in New Orleans to discuss ways of increasing
Ingram Corporation's total revenue under the contract to the $21,500,000 that McPartlin had
assured Benton would be forthcoming. Weber told Benton that Janicki and he thought that
the corporation could receive an additional $2,100,000 by billing the Sanitary District a
second time for the construction of the pipeline and the construction in Fulton County.
On June 26, 1971, Weber told Benton that Janicki needed $21,250 to pay off three District
staff members. Ingram issued a check for that amount to Southwest Expressway, another of
Weber's defunct corporations.
On July 27, 1971, Weber issued a $20,000 check to Bull Towing Company. Edwin Bull
deposited the check and, at the same time, withdrew $20,000. The next day, the Illinois
Commerce Commission granted Ingram Corporation's request for a certificate of
convenience and necessity.
On August 14, 1971, Edwin Bull negotiated two contracts with Ingram Corporation. In one of
them Ingram Corporation agreed to rent barges from Bull Towing Company to transport
sludge from the Lemont Bridge over the Illinois River to Fulton County. Donnelly signed this
contract but refused to sign the other contract, under which Ingram Corporation would agree
to pay Bull $.17 per ton for transporting sludge from Stickney to the Lemont Bridge. Ten
cents per ton were intended as payment for actual towing services; the other seven cents
per ton were intended as payment for consulting services and engineering and feasibility
studies that Bull had allegedly performed for Ingram Corporation. The second contract also

provided for payment to Bull of a $76,000 "finder's fee."5 Donnelly objected to the "finder's
fee," questioned whether any consulting services or studies that Bull provided to Ingram
Corporation were worth $560,000, and questioned Bull's competence as a barge operator.
Out of Bull's presence, Benton told Donnelly that if Bull did not participate in the sludgehauling contract, there would be no contract. Donnelly still refused to sign the second
Ingram-Bull contract, but permitted Benton to sign it on behalf of Ingram Barge Corporation
as well as Ingram Corporation.
On August 15, 1971, Benton, Weber, and McPartlin met in Chicago to discuss further
payments. Benton agreed to provide $146,000 in two installments. On August 18, 1971,
Oscar Hardison, comptroller of Ingram Corporation, delivered $30,000 in cash to Weber at
O'Hare Airport in Chicago. On August 28, 1971, another Ingram executive, G. Glen Martin,
gave Weber $116,000, which
[595 F.2d 1331]
consisted of $46,000 in cash and $70,000 in checks payable to Weber's defunct
corporations.
Ingram Barge Corporation began transporting sludge six days later than the date it was
required to do so under the sludge-hauling contract; whereupon the Sanitary District
assessed liquidated damages of $30,000 under the liquidated damages clause. In early
October, 1971, Benton, Weber, and Janicki held a meeting in Chicago to discuss this matter,
following which the Sanitary District withdrew the assessment. After the meeting, Weber told
Benton that Janicki wanted $100,000 by the end of 1971. When informed by Benton of this
request, however, Frederick Ingram refused, saying that no more payments would be made
until the Sanitary District began making payments on the pipeline, as Weber had promised it
would.
On December 15, 1971, Weber telephoned Benton to tell him that the Sanitary District
would issue a check to Ingram Corporation for $1,000,000, as partial payment on the
pipeline. When Benton arrived at Janicki's office the following day, however, Janicki
disclaimed any knowledge of the $1,000,000 check. Benton threatened to "jerk the rug"
from under everyone in Chicago.
Upon learning of Benton's threat, Weber informed Oberle of it and asked Oberle to do
whatever he could about Benton. Oberle telephoned defendant Frederick Ingram to tell him
of Benton's threat. Ingram expressed no surprise, simply thanked Oberle for the information
and hung up, and later in the day met with Benton to discuss the matter. At the meeting
they agreed that Benton would continue to represent Ingram's interest in dealing with the
Chicago officials.
On December 21, 1971, Weber, Janicki, and Benton met in Benton's hotel room in Chicago.
Benton apologized for his threat. He then gave Weber two checks payable to Weber's
defunct corporations in the amount of $50,070. This payment brought Ingram's total
contribution to $317,320, leaving a balance of $132,680 on the $450,000 commitment.
In February, 1972, Weber told Benton that because of the difficulties in getting the Sanitary
District to pay the additional $2,100,000 for the pipeline, Ingram Corporation would have to
increase its contribution to $620,000. On February 17, 1972, Weber asked Benton for
$100,000 in cash immediately. When Benton told defendant Ingram of the request, Ingram
responded that he would investigate ways of raising the money. On February 28, 1972,
Benton delivered $100,000 to Mrs. Valentine Janicki.
At trial, defendant Frederick Ingram contended that he did not learn until this February, 1972
meeting with Benton that his company had secured a multi-million dollar contract by paying
more than $300,000 to Chicago officials.6 Ingram testified that he protested against paying

the bribes, but reluctantly agreed when Benton informed him that if he refused to pay, the
Sanitary District would not pay the additional $2,100,000 for the pipeline and would use the
liquidated damages clause to penalize Ingram Corporation.
On March 10, 1972, Weber told Benton that if Ingram Corporation could deliver $100,000
before the end of the month, the Sanitary District Board of Trustees would approve the
purchase of the pipeline. One-fourth of this amount was delivered, but the balance was not,
and the trustees failed to approve the purchase. At a July 6, 1972 meeting between Benton,
Janicki, and Weber, however, Janicki promised that the trustees would take some action on
the pipeline in the month of July. As promised, the board of trustees authorized the staff to
negotiate with Ingram for the purchase of the pipeline on July 20, 1972.
On August 23, 1972, Benton gave McPartlin $80,000 in cash. McPartlin told Benton that the
trustees would approve the purchase
[595 F.2d 1332]
of the pipeline in September, but Ingram would have to pay the balance of its contribution,
about $95,000, in September also.
Between August and November, 1972, Ingram Corporation and the Chicago officials
negotiated a new agreement. Ingram would pay $750,000 over a three year period, and the
Sanitary District would purchase the pipeline, modify the liquidated damages clause, and
extend the sludge-hauling contract for three years at a higher price per ton.
On December 28, 1972, representatives of the Ingram companies and the District signed an
agreement covering the pipeline purchase that was to be effective only if the parties also
signed two other agreements: a retroactive modification of the liquidated damages clause
and a three year extension of the sludge-hauling contract. On January 26, 1973, the
additional agreements were signed.
After the signing, Benton returned to his hotel room and telephoned Janicki to tell him that
his money was ready. Janicki sent his secretary to pick up a package containing $50,000 in
cash. Benton then telephoned Weber to tell him to come and pick up the balance of the
money due. When Weber arrived, Benton gave him $95,000 in cash and nine letters of credit
drawn on a Swiss bank in the amount of $70,000 each.7
One of the letters of credit matured in June, 1973, and each of the others matured
sequentially at six-month intervals. Weber admitted negotiating the first four letters at the
Swiss bank in July, 1973, December, 1973, June, 1974, and December, 1974. On each
occasion, he purchased his plane ticket to Europe with cash, arranged for his trip to
Switzerland only after he arrived in Europe, and stopped in Toronto, Canada, on the way
back to the United States. On his last two trips, Weber telephoned Janicki from Europe.
Sometime before the fall of 1974 a federal grand jury commenced an investigation of the
events surrounding the sludge-hauling contract. In May, 1975, the government granted
immunity to Benton.
In November, 1975, Weber sent his brother, Henry Weber, to Europe to negotiate the fifth
and sixth letters of credit, which matured in June, 1975, and December, 1975.8 Following his
brother's instructions, Henry Weber did not proceed directly to the drawee Swiss bank but
went to a bank in Vaduz, Liechtenstein, to have that bank present the letters to the Swiss
bank.
On November 26, 1975, two weeks after his return from Liechtenstein, Henry Weber
appeared before the grand jury and testified that he had only visited Frankfurt and Munich.
On December 3, 1975, the government called Henry Weber to appear a second time before

the grand jury, this time asking Weber to bring his travel records. During his second
appearance, Henry Weber testified that he had been mistaken when he said that he had
only visited Frankfurt and Munich and that he had also visited Vaduz.
On December 9, 1975, Franklin Weber's attorney telephoned one of the government's
attorneys in this case and informed him of what the government attorney already had
reason to suspect, namely, that Franklin Weber had possession of the remaining letters of
credit.
Additional details and procedural matters necessary to an understanding of the various
issues to be decided will be stated at appropriate places in the opinion.
I.
Severance
Before discussing the specific attacks on the district court's denial of severance,
[595 F.2d 1333]
some general principles should be noted. The question of whether charges that have been
properly joined ought to be severed for trial is for the discretion of the trial judge, whose
decision will be reversed only upon a showing of clear abuse. United States v. Tanner, 471
F.2d 128, 137 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972). The
defendant has the burden of showing prejudice, which is a difficult one. Id. A denial of
severance will rarely be reversed on review, Tillman v. United States, 406 F.2d 930, 935 (5th
Cir.), cert. denied, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969), and then only for the
most "cogent reasons," United States v. Kahn, 381 F.2d 824, 838 (7th Cir.), cert. denied, 389
U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967). There is, moreover, a strong policy in favor
of joint trial "where the charge against all the defendants may be proved by the same
evidence and results from the same series of acts." United States v. Cohen, 124 F.2d 164,
165 (2d Cir.), cert. denied sub nom. Bernstein v. United States, 315 U.S. 811, 62 S.Ct. 796,
86 L.Ed. 1210 (1942). See also United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1965)
recently quoted in United States v. Harris, 542 F.2d 1283, 1312 (7th Cir.), cert. denied, 430
U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1976).
In the case at bar all appellants assert error in the denial of their motions for severance.
Frederick Ingram argues that the denial deprived him of evidence that would otherwise have
been available. The other appellants, whom we shall call the Illinois defendants, argue that
they were prejudiced by the denial because Ingram and his brother (whom the jury
acquitted) defended on a ground antagonistic to the defenses of their co-defendants and
because of curtailment of cross-examination and the spillover effect of evidence admitted
only against Frederick Ingram. We turn first to the argument of the Illinois defendants.
A. The Illinois Defendants
1. Antagonistic Defenses
The Ingrams contended that the payments were made only because the Sanitary District
threatened to take action that would have resulted in financial disaster to Ingram
Corporation, and therefore neither of them had the "intent (to influence the performance of
an official act) required by the Illinois bribery statute." United States v. Peskin, 527 F.2d 71,
84 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976). It was not
necessary to this defense that the Illinois defendants were guilty of extortion or received
bribes, because it was possible that Benton, through whom the corporation's
communications with, and payments to, the Illinois defendants were carried out, did not
pass any of the money on but kept it all himself.9 Thus the Ingram defense was not

necessarily antagonistic to the defenses of others, although it was possible, on the Ingrams'
theory, that they were innocent even if the others were guilty.
Even if the defenses were to a degree antagonistic, however, it does not follow that there
should have been two or more trials. One has no right to any tactical advantage that would
result if evidence that is admissible against him in either a joint or separate trial might be
unavailable in a separate trial. Cf. Brady v. Maryland, 373 U.S. 89, 90-91, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963).10 It is therefore the settled rule
[595 F.2d 1334]
that a defendant is not entitled to a severance merely because it would give him a better
chance of acquittal. See United States v. Tanner, supra, 471 F.2d at 137. Thus antagonistic
defenses do not require the granting of severance, United States v. Hutul, 416 F.2d 607, 620
(7th Cir.), cert. denied, 396 U.S. 1007, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970), even when one
defendant takes the stand and blames his co-defendant for the crime, United States v. Joyce,
499 F.2d 9, 21 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974).
Even when the defendant who testified he was the victim of extortion had dealt directly with
the defendant alleged to have extorted the bribe, we sustained the denial of severance.
United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 49, 38
L.Ed.2d 61 (1973).
There may be cases, as we recognized in George, in which the conflict among defendants is
of such a nature that the "jury will unjustifiably infer that this conflict alone demonstrates
that both are guilty." 477 F.2d at 515. This is not such a case. The joinder did not result in the
exclusion or admission of any evidence of consequence that would not have been
excludable or admissible in separate trials. Nor was any argument made that could not
properly have been made in such a separate trial. There was no cognizable prejudice arising
from antagonistic defenses.11
2. Curtailment of Cross-Examination
Janicki complains that cross-examination was curtailed because of the joinder when, during
cross-examination of Benton, the trial judge delivered a general admonition against
repetitious cross-examination. Neither Janicki nor the other Illinois defendants, who adopt by
reference his arguments on severance, show any prejudice resulting from the admonition or
point to any specific ruling curtailing their cross-examination. It was, moreover, entirely
proper for the judge to attempt to forestall repetition.
3. Spillover Effect of Evidence Offered Against Frederick Ingram
Janicki also asserts that he was prejudiced by evidence offered against Frederick Ingram
showing that Ingram Corporation had bribed a Brazilian corporate official between 1969 and
1971, because the conduct of the Brazilian was similar to that with which Janicki was
charged. The trial court instructed the jury to consider the evidence of the earlier bribe only
as to Frederick Ingram's state of mind, but Janicki asserts that this instruction was
ineffective. We see no substantial risk that the jury would believe that because a Brazilian
corporate officer took a bribe from Ingram Corporation, Janicki did also, and therefore we
conclude that Janicki was not prejudiced by the admission of this evidence. Its admissibility
as to Frederick Ingram and the effectiveness of the limiting instruction are discussed below.
[595 F.2d 1335]
The Illinois defendants were not deprived of a fair trial by the joinder.
B. Frederick Ingram

Frederick Ingram's attack on the joinder is based on the district court's exclusion of three
items of evidence offered to support his extortion defense, which Ingram argues occurred
because he was tried with the men he allegedly bribed.
1. The McPartlin Statements and the Attorney-Client Privilege Among Co-defendants and
Their Counsel
Throughout the period covered by the indictment, Benton kept diaries, or appointment
calendars, in which he made notes concerning meetings and telephone conversations,
naming the persons involved and often recording the substance of the conversations. The
Benton diaries figured prominently in the government's case, for they corroborated much of
his testimony.
Destroying Benton's credibility was important to Ingram, as it was to the other defendants,
even though Ingram's defense was based, in part, on the argument that he had made the
payments in response to the threats Benton had reported to him, because Ingram's account
of events in issue differed materially from Benton's, and because the government's case
hinged largely on Benton's testimony. Since Benton's diaries corroborated so much of his
testimony, it was imperative from the standpoint of all defendants that an effort be made to
discredit them.
Such an effort was made, and Frederick Ingram and McPartlin cooperated in that effort. In a
brief supporting a pretrial "Motion for Additional Time to Conduct Document Analysis,"
Ingram's counsel stated, with reference to contemplated tests on the Benton diaries,
[T]he defendant Frederic B. Ingram is not the only defendant who may be affected by the
results of these tests. Besides the general effect of the doubts that may be raised as to
Benton's veracity and the credibility of the diary entries, the case against at least one other
defendant Robert F. McPartlin may be substantially affected by the results of the tests.
From the results of the tests conducted so far, it appears that at least two of the suspicious
diary entries relate to alleged payments of money to Mr. McPartlin.
An investigator acting for Frederick Ingram's counsel twice interviewed McPartlin with the
consent of the latter's counsel12 for the purpose of determining whether there was a basis
for challenging the truth of some of the diary entries. In the second of these interviews
McPartlin made certain statements, which Ingram argues tend to support his defense. At
trial, when Ingram offered evidence of these statements, McPartlin's counsel objected on the
ground, inter alia, of the attorney-client privilege, and the court, after an in camera hearing,
sustained the objection on this and another ground.13
The exclusion of the McPartlin statements would not be reversible error even if he had not
been entitled to claim the privilege. We are satisfied from our examination of the transcript
of the in camera hearing, which was sealed and made a part of the record on appeal, that
the statements merely corroborated facts which were admitted in evidence and which the
jury obviously found to be true.14 We do not disclose
[595 F.2d 1336]
the contents of the statements because they remain protected by the attorney-client
privilege, on which we alternatively base our ruling on this point.
McPartlin was entitled to the protection of the attorney-client privilege, because his
statements were made in confidence to an attorney for a co-defendant for a common
purpose related to both defenses. They were made in connection with the project of
attempting to discredit Benton, a project in which Ingram and McPartlin and their attorneys
were jointly engaged for the benefit of both defendants. Ingram acknowledges that
communications by a client to his own lawyer remain privileged when the lawyer
subsequently shares them with co-defendants for purposes of a common defense. The

common-defense rule, which is not as narrow as Ingram contends, has been recognized in
cases spanning more than a century. Chahoon v. Commonwealth, 62 Va. (21 Gratt.) 822
(1871); Schmitt v. Emery, 211 Minn. 547, 2 N.W.2d 413 (1942); Continental Oil Co. v. United
States, 330 F.2d 347 (1964); Hunydee v. United States, 355 F.2d 183 (9th Cir. 1965); Matter
of Grand Jury Subpoena, 406 F.Supp. 381, 387-389 (S.D.N.Y.1975); see State v. Emmanuel,
42 Wn.2d 799, 259 P.2d 845, 854-855 (1953); Note, "Waiver of Attorney-Client Privilege on
Inter-Attorney Exchange of Information," 63 Yale L.J. 1030 (1954); Note, "The Attorney-Client
Privilege in Multiple Party Situations," 8 Colum.J.L. & Soc.Prob. 179 (1972). Uninhibited
communication among joint parties and their counsel about matters of common concern is
often important to the protection of their interests. Note, supra, 8 Colum.J.L. & Soc.Prob. at
179-180. In criminal cases it can be necessary to a fair opportunity to defend. Therefore,
waiver is not to be inferred from the disclosure in confidence to a co-party's attorney for a
common purpose.
In the case at bar, the judge found, as a preliminary question of fact, from the evidence
adduced at the hearing held pursuant to Rule 404(a), Fed.R.Evid., that McPartlin had made
the statements to the investigator in confidence. That finding is not clearly erroneous.
Ingram argues that the co-defendants' defenses must be in all respects compatible if the
joint-defense privilege is to be applicable. The cases do not establish such a limitation,15
and there is no reason to impose it. Rule 503(b)(3) of the proposed Federal Rules of
Evidence, as approved by the Supreme Court, stated that the privilege applies to
communications by a client "to a lawyer representing another in a matter of common
interest." See 2 J. Weinstein, Evidence 503-52 (1977). The Advisory Committee's Note to
proposed Rule 503(b) makes it clear that the joint-interest privilege is not limited to
situations in which the positions of the parties are compatible in all respects:
The third type of communication occurs in the "joint defense" or "pooled information"
situation, where different lawyers represent clients who have some interests in common. . . .
The rule does not apply to situations where there is no common interest to be promoted by a
joint consultation, and the parties meet on a purely adversary basis.
Quoted in 2 J. Weinstein, supra, at 503-6 to 503-7. (Emphasis supplied and citations
omitted.) Although the Congress, in its revision of the Federal Rules of Evidence, deleted the
detailed privilege rules and left the subject of privilege in federal question
[595 F.2d 1337]
cases to "be governed by the principles of common law as they may be interpreted by the
courts of the United States," R. 501 Fed.R.Evid., the recommendations of the Advisory
Committee, approved by the Supreme Court, are a useful guide to the federal courts in their
development of a common law of evidence. 2 J. Weinstein, supra, at 501-20.4 to 501-20.5. In
this instance we follow the recommendation. The privilege protects pooling of information
for any defense purpose common to the participating defendants. Cooperation between
defendants in such circumstances is often not only in their own best interests but serves to
expedite the trial or, as in the case at bar, the trial preparation.16
Ingram also seems to argue that the communication was not privileged because it was made
to an investigator rather than an attorney. The investigator was an agent for Ingram's
attorney, however, so it is as if the communication was to the attorney himself. "It has never
been questioned that the privilege protects communications to the attorney's . . . agents . .
for rendering his services." 8 Wigmore, Evidence 2301 at 583 (McNaughton rev. 1961); cf.
United States v. Kovel, 296 F.2d 918, 921-922 (2d Cir. 1961) (client's communications to an
accountant employed by his attorney).
Nor was it, as Ingram contends, fatal to the privilege that McPartlin made the statement, in
effect, to Ingram's attorney rather than his own. When the Ingram and McPartlin camps
decided to join in an attempt to discredit Benton, the attorney for each represented both for

purposes of that joint effort. The relationship was no different than it would have been if
during the trial the Ingram and McPartlin attorneys had decided that Ingram's attorney
would cross-examine Benton on behalf of both, and during cross-examination McPartlin
passed Ingram's attorney a note containing information for use in the cross-examination.
The attorney who thus undertakes to serve his client's co-defendant for a limited purpose
becomes the co-defendant's attorney for that purpose. A claim of privilege was upheld in
circumstances such as these where communications were made directly to the attorney for
another party in In the Matter of Grand Jury Subpoena Duces Tecum, supra, 406 F.Supp. at
391. United States v. Friedman, 445 F.2d 1076, 1085 n.4 (9th Cir.), cert. denied, 404 U.S.
958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971), relied on by Ingram, is not to the contrary. In
Friedman the court held its decision in Hunydee v. United States, supra, inapplicable,
because no joint defense or common interest was alleged. The court went on to state, in the
footnote relied upon, that even if Hunydee was applicable, there was no privilege since "the
facts of the conversation negate confidentiality." 445 F.2d at 1085 n.4.
Inasmuch as McPartlin was entitled to assert the privilege whether Ingram was tried jointly
or separately, no prejudice would have resulted from the joint trial by reason of the exclusion
of the McPartlin statements even if those statements had not been merely cumulative.
2. Relevance of Threats Against Benton
Frederick Ingram also argues that joinder caused specific prejudice through the trial court's
exclusion, as prejudicial to other defendants, of evidence of threats of physical harm
directed against Benton. The short answer is that prejudice to other defendants was not the
only ground for the exclusion. The excluded evidence consisted of testimony by Ingram that
in the fall of 1972 Benton expressed fear for his own physical well-being if Ingram refused to
make the promised payments to the Chicago officials, and testimony by two other witnesses
that Benton told them in October 1974 that someone had threatened him with physical
harm. To begin with, both statements
[595 F.2d 1338]
by Benton were said to have been made long after February 1972, when Ingram, by his own
admission, authorized Benton to make payments to secure the contract. There is no
indication in the record that the second, made long after all payments were made was ever
communicated to Ingram. The alleged threats were directed at Benton, not Frederick Ingram,
who had no dealings in the matter with anyone outside Ingram Corporation. Finally, Ingram's
theory throughout the trial was economic, not physical, coercion.17 The evidence was
properly excluded as irrelevant, and it would have been equally irrelevant if Ingram had
been tried separately.
3. Relevance of an Unrelated Payment by a Third-Party
Frederick Ingram also contends that the joinder caused the exclusion of evidence that an
attorney who represented Ingram Corporation before the Illinois Commerce Commission
made a $5,000 contribution to McPartlin's reelection campaign fund, and that the payment
was motivated in part by McPartlin's having recommended the attorney's firm to Ingram
Corporation. There was no showing that the attorney was coerced. This evidence, offered
first by the prosecution and then by the Ingrams, was rightly excluded on both occasions as
irrelevant. In rejecting the Ingram offer the court said that it "could be prejudicial to
McPartlin without being probative of any issue as far as the Ingrams are concerned."
Prejudice to McPartlin aside, the trial court was correct as to the probative value of the
evidence.
We therefore conclude that the denial of the motions for severance was not error.
SPRECHER, Circuit Judge:

I concur in the portions of this opinion prepared by Judges Pell and Tone.
II.
Extortion Defense Instruction
As noted earlier, defendant Ingram never denied making certain of the illicit personal
payments to officials of the Sanitary District. Instead Ingram premised his defense to the
counts relating to these payments on the theory that these payments were not intended as
bribes but were extorted from him by threats that, unless these payments were made, the
Sanitary District would, contrary to an alleged understanding, refuse to purchase the
pipeline which Ingram had already constructed and would invoke the liquidated damages
clause to further penalize Ingram Corporation.18 In relation to these arguments, the trial
court gave the jury the following instructions on the defense of extortion:
Now, I have just told you that willful conduct, which is required in each of the crimes charged
in this indictment, must be voluntary.
[595 F.2d 1339]
One of the defenses raised by the Defendants Frederick B. Ingram and E. Bronson Ingram is
that they authorized certain payments to be made only because they were told unless the
payments were made, the pipeline would not be paid for and the liquidated damage
provision would be used against Ingram Barge Company in an unreasonable and punitive
manner. These defendants claim, therefore, that they did not commit bribery or conspire to
commit bribery and lacked the intent to bribe.
In analyzing this defense, there are several things for you to consider. First, you should
determine whether a defendant did in fact authorize payments because of a fear of
economic loss. If you find that a defendant did authorize any of the payments in question,
but that he did so solely to procure an economic advantage rather than out of fear of an
economic loss, then this defense that the act was involuntary must fail.
On the other hand, if you do find that a defendant authorized payments because of his fear
of economic loss, then you should proceed to a consideration of whether that fear of
economic loss was such as to render his action involuntary within the meaning of the law.
There are several things to consider in this connection. First, did the defendant fear loss as a
result of a withholding of something to which he believed Ingram Barge Company was
already legally entitled? Specifically, did the defendant believe that the Metropolitan
Sanitary District was already under a legal obligation to pay Ingram Barge for the pipeline?
Did he believe that the threatened assessment of liquidated damages was legally
unjustified?
The answers to these questions are important because there is a difference between paying
a public official for something one is entitled to receive and paying a public official for
something one is not entitled to receive.
If one does not believe he is legally entitled to receive the thing in question, then, no matter
how much he needs it and no matter how great the economic loss one might suffer by not
receiving it, there can be no legal justification for paying a public official to get it. Such a
payment is bribery, pure and simple.
However, if one is legally entitled to the thing in question or in good faith believes he is
legally entitled to it, then the fear of economic harm from not receiving it may be sufficient
to render the act of payment involuntary, depending upon three additional considerations:
The seriousness of the economic harm perceived by the defendant, the effect that
perception had on his ability to exercise free choice, and the defendant's awareness of
reasonable alternatives to the making of the demanded payments.
If a defendant did not in fact fear serious economic harm or if his fear did not substantially
impair his ability to exercise free choice or if he was aware of actions he might take to
forestall the harm without making the payments and chose not to take those actions, then

his conduct in authorizing the payment cannot be considered involuntary within the meaning
of the law.
In order to prove, therefore, that a defendant acted willfully as opposed to involuntarily in
authorizing a payment, the government must prove one of the following things: (a) that the
defendant was not motivated by a fear of economic harm in authorizing the particular
payment, or (b) the thing which the defendant sought to obtain by making the payment was
not something he believed Ingram Barge Company was legally entitled to have without
making the payment, or (c) the defendant did not perceive the threatened economic harm to
be of serious magnitude, or (d) the defendant's fear was not such as to substantially impair
his ability to exercise free choice, or (e) and finally, the defendant was aware of reasonable
alternatives to making the payments and chose not to pursue those alternatives.
Defendant Ingram urges that this instruction was prejudicial error in three respects. In
considering these contentions we shall assume without deciding, that as the instruction
states, under Illinois law, if one who pays a bribe is or believes himself to be "legally
entitled" to have the official take the action induced by the bribe, "then the
[595 F.2d 1340]
fear of economic harm from not receiving it may be sufficient to render the act of payment
involuntary." This court's decision in United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975),
cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976), in the following words, left
open the question whether this is so but did establish the rule applicable in the case of a
discretionary official decision:
[A]t least in a case where a discretionary or legislative decision . . . has been requested, the
withholding of such action until a money demand is met could not negate the intent (to
influence the performance of an official act) required by the Illinois bribery statute.
Id. at 84.
First, Ingram argues that the distinction between economic loss and gain was erroneous. The
prejudice from this distinction allegedly arose from the fact that the jury was likely to define
economic loss as the payment of money and economic gain as the receipt of money and
therefore might have rejected the extortion defense out of hand on the ground that the
admitted object of the payment was to complete the sludge-hauling project and thereby
gain a profit. In response we note initially that Ingram here has too narrowly characterized
his own defense. Ingram asserted throughout the trial and continues to assert before us that
the payments were at least in part motivated by a desire to avoid assessment of liquidated
damages. Even under the simplistic construction of the loss-gain distinction which Ingram
alleges was most likely, this would constitute an economic "loss" thereby preventing the jury
from rejecting the defense on the basis of the loss-gain distinction.19 Moreover it is not clear
that Ingram preserved this objection for appeal; the written objection to the instruction
tendered at trial makes no mention of any error in this distinction.20 Finally, we are not
convinced that the jury would put such a simplistic construction on the loss-gain distinction.
Certainly it requires no extraordinary economic acumen to realize that the receipt of money
may not represent an economic gain if the amount received is less than an amount to which
one was previously entitled. Conversely, an ordinary juror would certainly realize that a real
economic gain accrues only when a person becomes entitled to something to which he had
no prior entitlement, that is, when a discretionary official act is performed for his benefit.
The district court followed this gain-loss instruction with a discussion of the concept of
entitlement, explicitly denoting a "loss" as a failure to receive a benefit to which one was
entitled, thereby further clarifying the interdependent relation between these two
concepts.21
[595 F.2d 1341]
Ingram advances a second attack on this instruction. He argues that the district court erred
in instructing the jury that the extortion defense is unavailable if the defendant did not
believe that he had a legal entitlement to the official action. Once again we must note that

this objection appears not to have been properly preserved for appeal, since Ingram's
objection to the trial court did not criticize the entitlement aspects of the instruction.22 Even
if this objection were properly preserved, it lacks merit. The district court's instruction is
consistent with Peskin.23
Ingram's final objection to the trial court instruction is that the instruction, by its emphasis
on the voluntariness of the payments, implicitly disallowed the extortion defense and
permitted only the narrower defense of duress. Assuming that the distinction drawn in
United States v. Barash, 365 F.2d 395 (2d Cir. 1966), between the defenses of duress and
extortion is correct,24 the instruction could not have prejudiced Ingram since Ingram, before
this court and the trial court, characterized his own conduct in such a way as to absolutely
preclude the availability of the extortion defense, even assuming that the voluntariness of
his conduct alone would not negate the extortion defense. Ingram, during the course of the
trial, admitted that he had no legal entitlement to the benefits which his payments were
designed to obtain.25 Accordingly he is absolutely precluded from prevailing on an extortion
defense under Peskin, which makes that defense unavailable where the defendant is seeking
to obtain a benefit not owed and thus the emphasis
[595 F.2d 1342]
of the instructions on involuntariness could not have harmed the defendant.26
III.
Evidence of Ingram's Bribes of Foreign Officials
At trial the government, seeking to rebut Ingram's testimony that he made the payments
only as a victim of extortion, sought to demonstrate that in other instances Ingram had been
willing to make such payments without the alleged incentive of extortion. The trial court
carefully screened this proffer with an ex parte review of the evidence, an in camera
meeting with all counsel, and a voir dire of the government witnesses. After this careful
consideration, the court, although rejecting a substantial portion of the government's offer of
proof,27 permitted the government to introduce testimony that Ingram had made
surreptitious payments to an employee of a semi-official Brazilian corporation in order to
receive preferential treatment.
The government introduced at trial the testimony of Chris Daley, an official of the Ingram
Corporation, to establish the government's account of Ingram's alleged
[595 F.2d 1343]
prior bribe. Daley testified that in 1967 the Ingram Corporation became interested in
engaging in an off-shore drilling project conducted by Petrobas, a Brazilian oil company
owned jointly by the Brazilian government and private investors. Daley and Benton then met
with Levindo Caniero, the Petrobas official with responsibility for procuring the contractor for
the off-shore drilling. As a result of this meeting, Caniero agreed to provide inside
information to Ingram Corporation to assure that it was low-bidder in exchange for a "payoff
or commission." Benton, Daley and Caniero agreed that these payments should be made
into a Swiss bank account. The contract was then awarded to Ingram Corporation through a
letter of intent. However, Caniero threatened to withdraw the letter of intent because of a
delay in Ingram Corporation's establishment of a Swiss account for him. At this point Daley
informed Ingram that the letter of intent was about to be lost because of the delay in making
the payoffs. Ingram then put Daley in touch with an international banker at Lehmann
Brothers to expedite the establishment of the account. Subsequently, between 1969 and
1973, $172,000 was paid into the account.
We hold that this evidence was properly admissible against Ingram in that it tended to refute
Ingram's defense that he lacked the intent to bribe the Chicago defendants and made the
payments only to satisfy extortionate demands. Rule 404(b) of the Federal Rules of Evidence

permits proof of prior crimes or acts where it is used for such purposes "as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident." This provision has been interpreted as permitting admission of evidence of prior
acts as long as it has a substantial relevance to an issue other than showing that the
defendant has a criminal character and therefore possesses a propensity to commit criminal
acts. See, e. g., United States v. Sigal, 572 F.2d 1320, 1323 (9th Cir. 1978). Or, as this court
has held, such evidence is admissible "if, entirely apart from the matter of `propensity,' it
has a tendency to make the existence of an element of the crime charged more probable
than it would be without such evidence." United States v. Fairchild, 526 F.2d 185, 189 (7th
Cir. 1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976) (emphasis
added).
Ingram forwards three attacks on the admission of this evidence. First, he claims, the prior
payments to Caniero were not sufficiently similar to the payments for which he was indicted
to establish their relevance to his intent. Before examining the particular dissimilarities
urged, we note that there is no requirement that the prior acts be virtually identical to the
charged acts and that it is sufficient that the acts be similar enough and close enough in
time to be relevant. The major thrust of Ingram's argument is that there is no showing that
the Brazilian payments were either illegal or immoral since such payments are simply a way
of doing business in Brazil. Initially we must note that we would be loathe to assume that
surreptitious payments to governmental or private officials is a common and accepted
practice in Brazil absent proof to that effect. Ingram admits that neither he nor the
government offered proof on that matter, and thus this argument rests solely on Ingram's
facile and unsupported characterizations of Brazilian practice. However, even were we to
accept that such payments are a legal and accepted practice in Brazil,28 we do not find that
fact sufficient to differentiate the two transactions. In United States v. Boggett, 481 F.2d 114
[595 F.2d 1344]
(4th Cir.), cert. denied, 414 U.S. 1116, 94 S.Ct. 850, 38 L.Ed.2d 744 (1973), the government
was permitted to introduce in a Travel Act bribery prosecution against a zoning official
evidence showing a series of transactions wherein gifts were made to the official and
favorable actions by him on behalf of the donor followed shortly thereafter. The defendant
urged that since no showing of a quid pro quo had been made by the government there was
nothing to establish anything improper in these transactions. The court, however, admitted
the evidence holding that regardless of the propriety of the individual's acts, the evidence
demonstrated a course of conduct which indicated the defendant's "preference for favors
and gifts over his public duty." Id. at 115. Likewise here, whatever the moral and legal status
of the Brazilian payoffs, they indicate that the defendant had knowingly circumvented
ordinary business channels with "facilitating payments." Admittedly the illegality of such
payments to government officials in the United States would make such payments less likely
than those not involving illegality; that, however, does not deny that one making such
payments, legal or not, is more likely to have the intent to influence official action by similar
payments in other instances than one who has never made such payments.29 The other
differences urged by Ingram are even less substantial. The fact that the Brazilian official was
an employee of a semi-public entity and that the indictment alleged payments to employees
of a wholly public governmental entity is a completely negligible difference, unless of course
one makes the irrational assumption that one who would knowingly cheat both the public
and private investors would not knowingly cheat the public alone. Nor is it relevant that the
Brazilian payoff was not initiated by Ingram: we can see no difference in active participation
in making payments suggested by another and initiation of the suggestion itself, since one
who is willing to perform the essential act of bribery that is, to dispense the bribe moneys
themselves must be presumed to have also been willing to suggest the bribe. Finally, we
reject Ingram's characterization of the Brazilian transaction as involving less harm that the
Sanitary District bribes since the latter added the amount of the bribes onto the contract
price. Nothing in this record suggests that the amounts charged to Brazil would not have
decreased once the cost of the project was reduced by the amount of the bribes. Further, it

is axiomatic that for a competitively-bid project, where no inside information was available,
Ingram would have bid less and therefore charged less than where the project is guaranteed
by virtue of a bribe and Ingram could set its own price. It is therefore completely
disingenuous to suggest that the level of harm differed.
Ingram's second objection is that there was no clear and convincing proof that Ingram knew
the purpose of the payments made to Caniero. We have held that there must be clear and
convincing evidence of the prior act to justify its admissibility,30 and we find that there is
evidence in the record to meet that standard. Daley testified in camera as to Ingram's
reaction when he learned of the payments and that Benton's delay in setting up the account
might lead to a revocation of the letter of intent. Daley stated:
Benton was to open it, which we wouldn't do. So that's when I called Fritz, and Fritz says,
"Jesus Christ. How did you get into that," or whatever. And he says, "Okay, okay. We will go
ahead and call him back and see what we can put together."
[595 F.2d 1345]
(Tr. 5638). At trial, Daley testified as to Ingram's response to knowledge of the payments in
the following terms: "Mr. Ingram, in disgust, says `Well, okay. I will see what I can do about
it. . . .'" (Tr. 5674). It is difficult to understand why Ingram would have responded "in disgust"
or with queries as to how Daley became involved "in that" unless he knew that the
payments were illicit payments made to procure unauthorized benefits or at least were
improper in some respect. Furthermore, the government introduced a memorandum sent
out by Daley to Ingram in which Daley stated that he knew after speaking with Petrobas
personnel that Ingram would be the low bidder and that Caniero had assured Daley that "we
could count on him for any assistance we need." Considering all the evidence, particularly
Ingram's reaction to Daley's statement and his knowledge that Ingram was assured to be
the low bidder, there is a convincing portrait of Ingram's knowledge of the purpose of the
Caniero payments.
Finally, Ingram urges, relying on Rule 403 of the Federal Rules of Evidence, that the
prejudicial impact of the evidence outweighed its relevance and therefore should have been
excluded. Ingram must sustain a heavy burden to succeed on this argument since the
careful balancing of the probative value of prior acts versus their possible unduly prejudicial
effect is uniquely appropriate to the informed discretion of the trial judge. See United States
v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d
79 (1976); United States v. Sigal, 572 F.2d 1320, 1323 (9th Cir. 1978). More precisely, this
balancing entails considering whether the probative value this evidence had in indicating
that Ingram's intent was to bribe, not to satisfy extortionate demands, outweighs its possible
prejudicial effect, that is, the possibility that the jury will take the evidence to be indicative
of a criminal disposition.
The highly judgmental character of this test mandates that we not restrike the balance
ourselves but instead examine only the manner in which the district court exercised its
discretion. The record here shows that the trial court was meticulous and deliberate in its
decision to admit the evidence. The trial court heard in camera evidence of a number of
prior acts which the government had sought to introduce.31 After extensive discussion the
court permitted proof only of the Petrobas transaction. Further, the court required the
government to present its witness to the Petrobas transaction in camera to confirm the
substance of the testimony. Finally, to minimize any prejudice the court preceded the
presentation of this witness's testimony before the jury with an extensive limiting instruction
emphasizing that Ingram was not "on trial" for this previous transaction, that the evidence
was to be considered only as it concerned Ingram's intent in the Sanitary District transaction
and that the court passed no judgment on the value of this evidence. Courts have often
looked to these factors indicating due consideration to uphold the trial court's judgment.
See, e. g., United States v. Carleo, 576 F.2d 846 (10th Cir. 1978). In particular the use of

limiting instructions has been accorded great significance. See United States v. Sigal, 572
F.2d 1320, 1323 (9th Cir. 1978). We therefore decline to hold that the trial court abused its
discretion.
IV.
Government's Compliance with Brady v. Maryland
During his opening statement, counsel for the government revealed that the principal
government witness, Benton, had embezzled and applied to his own benefit $375,000 of the
money he obtained from Ingram in order to pay off the Chicago defendants. Although the
government had turned over to the defendants both Benton's and Ingram Corporation's
financial records, from which the government asserts the defalcations could have been
discerned by the defendants, the government did not turn over to
[595 F.2d 1346]
the defendants Benton's grand jury testimony in which he referred to the $375,000 as "the
amount of money I am responsible for keeping," nor did the government disclose that
Benton had expressly admitted the embezzlements in interviews with government counsel.
Defendants McPartlin and Janicki, relying on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963), urge that this failure to disclose this information earlier violated their
Due Process rights and mandates reversal of the convictions.
We note initially that Brady and its successor, United States v. Agurs, 427 U.S. 97, 96 S.Ct.
2392, 49 L.Ed.2d 342 (1976), address a thoroughly different problem than the one before us.
The concern of Agurs and Brady is whether the suppression of exculpatory material until
after trial requires that a new trial be given so that this evidence may be considered. The
Court in Agurs characterized the situations to which the Brady principles apply as those
involving "the discovery, after trial, of information which had been known to the prosecution
but unknown to the defense." 427 U.S. at 103, 96 S.Ct. at 2397 (emphasis supplied). Indeed
the standard developed in Agurs can only sensibly be applied to the suppression of evidence
throughout the trial: "if the omitted evidence creates a reasonable doubt that did not
otherwise exist, constitutional error has been committed. Id. at 112, 96 S.Ct. at 2402
(emphasis supplied).
The defendants here, however, do not complain of a total suppression of favorable evidence
but merely attack the timing of the disclosure of such evidence. Here the prosecutor did not
conceal or withhold evidence of Benton's defalcations but waited until early in the trial to
reveal them.32 There is nothing in Brady or Agurs to require that such disclosures be made
before trial, and we have explicitly held this in the past. United States v. Stone, 471 F.2d 170,
173-74 (7th Cir. 1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973). See
also United States v. Lomprez, 472 F.2d 860 (7th Cir. 1972), cert. denied, 411 U.S. 965, 93
S.Ct. 2144, 36 L.Ed.2d 685 (1973). Thus, even though evidence might be material or might
create a reasonable doubt as to guilt, Due Process, albeit requiring eventual disclosure, does
not require that in all instances this disclosure must occur before trial.
The appropriate standard to be applied in a case such as this is whether the disclosure came
so late as to prevent the defendant from receiving a fair trial. See United States v. Stone,
471 F.2d at 174. After considering the record and the claims of prejudice forwarded by the
defendants, we cannot say that this disclosure came so late as to violate Due Process.
The defendants, apparently relying on their misinterpretation of Brady as a constitutional
mandate for pretrial discovery, concentrated on the exculpatory nature of the evidence and
barely developed before this court any specific ways in which they were prejudiced by this
delay.33 McPartlin merely argues that, had the Benton embezzlements been revealed before
trial, "specific requests could have been directed toward more detailed information

concerning these [embezzled] funds. . . . A thorough investigation into the disposition of

those funds which he admittedly retained might have revealed that additional funds were
[595 F.2d 1347]
similarly expended, deposited or hidden." Brief for Defendant McPartlin at 34-36. It is difficult
for us to discern any undue prejudice on this basis. To begin with, there was nothing to
preclude the defendants from having made additional investigations between the time of the
disclosure and the close of the evidence almost two months later, and yet nothing in the
record reveals that defendants directed any further inquiries to Benton. This omission is
even more important given the statement of the trial court that it would reconsider the
defendant's motion for a recess if it later became apparent that "anyone has in fact been
prejudiced by a late disclosure." Tr. at 250. Nor did the defendants subsequently renew their
request for a continuance. Thus, given the failure of the defendants to pursue adequately
any subsequent investigation and their subsequent failure to request additional time for any
investigation thoroughly discredits their assertion that they were prejudiced by the timing of
the disclosure.
V.
Admission of Benton's Desk Calendars
At trial the government introduced as exhibits over the objections of the defendant, the desk
calendar-appointment diaries of William J. Benton described above, Part I, B, 1. These diaries
documented in some detail the dealings of Benton with the Chicago defendants. As a
foundation for admission of the diaries, Benton testified that he had kept such business
diaries since 1952 or 1953 and that he maintained these diaries during the period of his
dealings with Metropolitan Sanitary District officials. Benton further testified that he kept
these diaries and made entries in them as a regular part of his business activity as a vicepresident of Ingram Corp., noting in them anticipated meetings, telephone calls, personnel
matters and bids. These entries were characterized by Benton as "things which I would need
to look back on," to recall a bid or to prepare letters and memoranda, for example.
In admitting the diaries the trial court made the following findings:
It was the regular course of business for Mr. Benton to make entries in diaries about the
things he did during the course of a business day, where he went, what people said to him,
what commitments he made and what commitments were made to him in connection with
that business. The entries that are contained in the diary, in the series of diaries, do pertain
to Ingram's business.
The contents of the diaries further indicated their reliability to the district court:
I find no indication of a motive to falsify. At the time these entries were made back in 1971
and 1972, there is not the slightest bit of evidence to suggest that Mr. Benton thought this
scheme was going to be disclosed; that he thought that he would be caught. There is
nothing self-serving about these entries. They implicate Mr. Benton in serious criminal
misconduct. Indeed, if he were unavailable, I think these diaries might well be admissible as
statements against penal interest, so incriminatory are they of Mr. Benton.
So I think they have the earmarks of reliability in that sense.
We agree with the district court that these diaries were admissible. These diaries clearly
fulfilled all the requirements which justify the admission of business records under Federal
Rule of Evidence 803(6). These records were kept as part of a business activity and the
entries were made with regularity at or near the time of the described event. Most
importantly these diaries satisfied the central rationale of the business records exception:
since Benton had to rely on the entries made, there would be little reason for him to distort
or falsify the entries.

The application of the business record exception to documents differing greatly from the
classic "shopbook" or business ledger is well established. See, e. g., United States v. Reese,
568 F.2d 1246 (6th Cir. 1977) (scrapbook of press clippings compiled by public relations
department);
[595 F.2d 1348]
United States v. Yates, 553 F.2d 518 (6th Cir. 1977) (letter from bank to employees
describing recent robbery); Magnus Petroleum Co. v. Skelly Oil Co., 446 F.Supp. 874
(E.D.Wis.1978) (corporate officer's personal notes of business negotiations); Aluminum Co. v.
Sperry Products, Inc., 285 F.2d 911, 916 (6th Cir. 1960), cert. denied, 368 U.S. 890, 82 S.Ct.
139, 7 L.Ed.2d 87 (1961) (inventor's diary of progress on invention). Moreover, the business
record exception has been applied to admit documents indistinguishable in kind from
Benton's desk calendars. In United States v. Evans, 572 F.2d 455 (5th Cir. 1978), the court
permitted the introduction of "pocket-size appointment calendars known as `daytimers.'" Id.
at 487. The court noted in support of its holding that these calendars were business records
that "[t]he entries purport on their face to list . . . business entertainment expenses . . .
[and] such documents were used as a matter of company policy." Id. at 488. Likewise, the
calendars here on their face describe business matters and, even if not mandated by Ingram
policy, were kept in accord with the widespread practice of business executives to maintain
such records.
Defendants McPartlin and Weber have argued that several facts differentiate the records
here from admissible business records. First, the defendants stress that some of the entries
in the calendars were made out of sequence. The defendants' document expert testified that
fifteen entries out of all those made over a two-year period were made out of sequence. We
do not however agree with the defendants that nonsequential entries preclude admissibility
as business records. Although there is no dispute that Benton's entries in a few cases did not
proceed page by page in the book, the defendants' document examiner could not disprove
Benton's statements that entries were made at or about the time of the described event.34
Indeed, it seems to us that insisting that entries proceed methodically from the first to last
page is as pointless as insisting that ledger and account entries proceed in alphabetical
order or from top to bottom. As long as the entries satisfy the contemporaneity and
regularity requirements, their sequence is irrelevant. This point was made clear by the Tenth
Circuit in United States v. Carranco, 551 F.2d 1197 (10th Cir. 1977). There the defendants
attempted to block the admission of freight bills on the ground that some of the notations on
the bills occurred after the document had been completed by the freight originator. The
court rejected this argument noting:
The notations on the freight bill were explained by the witnesses, and this is probably more
than is required by the business records exception to the hearsay rule. As pointed out by the
appellee, a freight bill is not meant to be a static document nor is it used as such. As
testified to by those familiar with the shipping business, a freight bill is used by many
different people and it is their job to make notations on the freight bill so it will continue to
be an accurate description of the shipment. It was adopted by ICX as its record, in the
regular course of its business, when the ICX driver signed it as he picked up the interline
shipment. He used it as an ICX record, verified the shipment, and made the notations on it.
The notations as testified to by the witnesses were thus also made in the regular course of
business of ICX. One of the freight bill copies went into the ICX terminal records, and one or
more copies continued with the shipment. The requirements of Rule 803(6) of the Federal
Rules of Evidence were met.
Id. at 1200. Similarly here there is no reason to require that an appointment calendar remain
a "static document"; indeed as appointments and other matters change
[595 F.2d 1349]
the calendar to be useful must be nonsequentially revised. The only requirement is that
these revisions be contemporaneous and regular, and the defendant's proof of simple
nonsequentiality does not rebut Benton's testimony that the entries were made regularly

and contemporaneously. However, even if several of the entries were made noncontemporaneously, it remains within the district court's discretion to determine whether the
few non-contemporaneous entries so undermine the reliability of the record as to preclude
admissibility. Given that there were only fifteen non-sequential entries over a two year
period, even if many of these were shown to be non-contemporaneous, we could not say
that this discretion was abused.
The defendants also urge that these diaries could not be business records because they
were relied on by no one other than Benton and in any event contained many entries of a
purely private nature, viz., the alleged extortion scheme engaged in by Benton which
supposedly was not related to Ingram Corporation's official business. However, nothing in
the text or comments to the Rule provides any indication that a necessary prerequisite to
the reliability of a business record is verification by persons other than the one making the
entry. Indeed, the Advisory Committee Notes appear to suggest otherwise:
The element of unusual reliability of business records is said variously to be supplied by
systematic checking, by regularity and continuity which produce habits of precision, by
actual experience of business in relying upon them, or by a duty to make an accurate record
as part of a continuing job or occupation.
Certainly the second and fourth, and possibly the first, indicia of reliability contemplate only
the accuracy imposed by the record keeper on himself. Accordingly, admissibility has been
upheld even in instances in which the records were made only for the benefit of the record
keeper himself and not for the benefit of the entire business entity. See United States v.
Prevatt, 526 F.2d 400, 403 (5th Cir. 1976); Aluminum Co. of America v. Sperry Products, Inc.,
285 F.2d 911, 916 (6th Cir. 1960), cert. denied, 368 U.S. 890, 82 S.Ct. 139, 7 L.Ed.2d 87
(1961).
Nor do we consider it significant that the illegality of Benton's activities may have removed
these actions in some technical sense from a narrow construction of his duties at Ingram.
This argument proceeds on the false premise that because Benton's activities were not a
part of Ingram Corporation's business, they could not be a business at all. United States v.
Re, 336 F.2d 306 (2d Cir.), cert. denied, 379 U.S. 904, 85 S.Ct. 188, 13 L.Ed.2d 177 (1964),
addressed, and rejected, such a contention. There the defendant after having gained control
of a company, engaged in a fraudulent scheme for the distribution of that company's
securities for his own personal benefit. The court was unpersuaded that records relating to
that scheme, since they were not part of the company's business, could not constitute
business records. The court pointed out that the defendant, "while distributing a huge block
of control stock to the investing public through a complex system of brokerage accounts and
over-the-counter sales, was engaged in a `business,'" albeit a business of his own and not
the company's. Id. at 313. The court further rejected the notion that business records would
lose admissibility as such because of the illegality of the underlying business. We think that
the same rationale applies here. Benton was engaged in systematically negotiating underthe-counter payments either for himself or the Chicago defendants in order to facilitate the
award of business contracts. Although this is not a business of "the usual orthodox nature"
(id.), there is no question that this bribery scheme was as much a business as a fraudulent
securities-marketing scheme.
However, even if there were to be some question as to whether Benton's activities
constituted an independent business, we believe that his activities can also be characterized
as part of Ingram's business. As long as the recorded activities had become, properly or not,
an integral part of Benton's business activities for Ingram, the records are not too personal
to preclude admissibility
[595 F.2d 1350]
under this exception. In this matter we are persuaded by United States v. Schiller, 187 F.2d
572 (2d Cir. 1951). There the defendant, a government employee in the Rent Control

Program, maintained a diary which evidenced a bribe paid to him. The court, in refusing to
consider a Fourth Amendment challenge to the admission of the diary premised on the
personal, non-official nature of the papers, noted:
We think . . . there was a sufficient showing that the entries introduced in evidence dealt
with official duties. Such matters as rent adjustments and recommendations regarding the
same were within his general duties, whether he performed them rightly or wrongly, at lunch
or elsewhere. . . .
187 F.2d at 575 (emphasis supplied). Certainly if such papers have sufficient business
character to remove them from the personal paper protections of the Fourth Amendment,
they have sufficient reliability to permit admissibility.
Defendants finally rely heavily on Buckley v. Altheimer, 152 F.2d 502 (7th Cir. 1945) in
support of their position. In Buckley, this circuit declined to permit, under the business
record exception, the admission of a diary which contained entries documenting the amount
of indebtedness between two parties, Frost and Altheimer. The court, in denying admission,
noted that "[t]he book did not contain any regular set of entries relating to any accounts
between Frost and Altheimer." Id. at 507. It was argued that, although no claim was made
that the entries in the diary occurred in the regular course of business and was "informally
kept," the diary should have been admitted because the entries were made "precisely and
meticulously." Id. The court rejected this argument, stating that "private diaries as
distinguished from account books or individual memoranda of particular transactions" are
inadmissible. Id. at 508. It is this latter statement upon which the defendants rely.
We believe however that the defendants' emphasis on the court's language concerning
"private diaries" is misplaced. We do not believe that the court there intended to make any
per se rule precluding the admissibility of private diaries; instead it is clear that the decisive
factor in that case was that no regular entries had been made documenting the relationship.
The desk calendar before us is clearly a record of a different order: regular and frequent
entries documenting the relation between Benton and Sanitary District officials were made
systematically for the purpose of allowing Benton to rely on its accounts of the status of the
relationship.
We note as a final matter that even if any of the defendant's arguments were sufficient
grounds to prevent admission of these diaries under the business record exception, they
would be admissible under two other exceptions. First, they would be admissible under the
"residual" exception, Federal Rule of Evidence 803(24).35 A number of factors combine to
demonstrate the reliability of the entries: the highly self-incriminatory nature of the entries
themselves, the regularity with which they were made, Benton's need to rely on the entries.
Where evidence complies with the spirit, if not the latter, of several exceptions, admissibility
is appropriate under the residual exception. See generally, United States v. Ianconetti, 406
F.Supp. 554 (E.D.N.Y.), aff'd, 540 F.2d 574 (2d Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct.
739, 50 L.Ed.2d 752 (1977) (especially Judge Weinstein's opinion for the district court).
Furthermore the degree of reliability necessary for admission is greatly reduced where, as
here, the declarant is testifying and is available for cross-examination, thereby satisfying
[595 F.2d 1351]
the central concern of the hearsay rule. Second, these calendars would also be admissible
under Rule 801(d)(2)(E) as statements "by a coconspirator of a party during the course and
in furtherance of the conspiracy." Since these entries were made so that Benton could rely
on them in carrying out his scheme, they aided and were "in furtherance of" the conspiracy.
See United States v. Evans, 572 F.2d 455 (5th Cir. 1978).
VI.
Weber's Prior Consistent Statements

The government's evidence revealed that the first installment of the bribe money consisted
of $75,000 given to McPartlin in Weber's presence. Some part of that amount consisted of
thousand-dollar bills. The government further presented evidence to establish that three
days after this cash payment, Weber deposited nine thousand-dollar bills in the bank
account of one of the companies controlled by Weber. Weber, in an attempt to rebut the
damaging inferences that could properly be drawn from such a cash deposit, testified that
he obtained this money from a safe-deposit box maintained by himself and his mother. His
mother testified that they indeed had such a joint safe-deposit box and that it did contain
several thousand-dollar bills. As further corroboration, Weber sought to introduce the
testimony of his accountant, as well as the accountant's copy of the bank statement
recording the deposit. In an offer of proof Weber indicated that the accountant would testify
that in 1973, two years after the deposit, Weber told him, in connection with his preparation
of an IRS audit, that the funds were obtained from Weber's mother. The proffered bank
statement contained the accountant's notation next to the sum: "Overdraft covered and paid
in cash from Mother (per FNW)." The trial court refused the admission of the accountant's
testimony and his copy of the bank statement. Defendants McPartlin36 and Weber urge that
this was error.
Two theories of admissibility are advanced. First, it is argued that the evidence was
admissible under Federal Rule of Evidence 801(d)(1)(B) as a prior consistent statement.37
We do not believe, however, that these statements were admissible under this theory.
Evidence offered under this theory must have some probative value in rebutting the implied
charge of recent fabrication or improper motive. However, where a motive to falsify also
existed at the time of the earlier statement, it possesses no such probative value. As Judge
Weinstein correctly pointed out in his treatise on the Federal Rules:
Substantive use under Rule 801(d)(1)(B) is limited to situations where high probative value
is most likely . . . Evidence which merely shows that the witness said the same thing on
other occasions when his motive was the same does not have much probative force "for the
simple reason that mere repetition does not imply veracity."
4 J. Weinstein & M. Berger, Evidence 801(d)(1)(B)[01] at 801-100 (1977). Obviously Weber
would have had no more reason to tell the IRS that the proceeds were illegal bribes than he
has a motive now to tell that to a jury in a criminal prosecution. Indeed, Weber would have
even had a further
[595 F.2d 1352]
reason not to tell the IRS that the $9,000 was part of a kickback: a bribe would be includable
in Weber's gross income whereas an appropriation of jointly-held funds might not have been.
Thus, we do not feel that these prior statements were admissible under 801(d)(1)(B).
As a second ground of admissibility, Weber and McPartlin urge that the bank statement was
admissible as a business record under Federal Rule of Evidence 803(6). This argument
creates a paradoxical tension with their arguments that Benton's desk calendars were not
business records. The defendants assailed the diaries on the grounds that the entries were
not made at or near the time of the event related (but recorded in advance as reminders of
appointments) and that many of the entries were derived from "second or third-hand
information." Brief for Defendant Weber at 7. Yet the defendants urge that a single notation
of a cash transaction made more than two years after the transaction and based solely on
information supplied by someone other than the person making the entry constitutes a
business record. We do not rely on these two grounds, however, to uphold the exclusion of
the notation on the bank statement. Instead we find a more fundamental flaw in this
evidence: this notation, unlike those in Benton's diaries, was not made for future reference
and reliance but was made in anticipation of IRS litigation. The defendants appear to admit
this fact, and the trial judge was informed of this. (Tr. 1363-69). As such prelitigation records,
we hold that they lacked sufficient trustworthiness to permit admissibility. Indeed, this case

is not significantly distinguishable from Hartzog v. United States, 217 F.2d 706 (4th Cir.
1954), which was cited by the Advisory Committee Notes to Rule 803(6) as an example of
insufficient trustworthiness. In Hartzog the court held it was error to admit the worksheets of
an IRS agent, deceased at the time of trial, that had been prepared from his examination of
the defendant's records in preparation for a tax-evasion prosecution. The court explained the
reasons for finding insufficient trustworthiness as follows:
These worksheets were made in preparation for this prosecution; they were Baynard's [the
agent's] personal working papers, were the product of his judgment and discretion and not a
product of any efficient clerical system. There was no opportunity for anyone . . . to tell when
an error or misstatement had been made. These worksheets were not more than Baynard's
unsworn, unchecked version of what he thought [the defendant] Hartzog's records
contained.
Id. at 710. The records made by Weber's accountant are no more trustworthy than those
prepared by the agent in Hartzog: they were prepared as a matter of his judgment and
discretion; they were not produced as part of any regular system; there was no reliance on
these notations by the accountant or others to guard against error or misstatement. If
anything, the records in this case are less trustworthy since, unlike Hartzog where the agent
examined records that the defendant had prepared for his own use, these notations were the
product of Weber's own representations for the purposes of the audit, thereby furthering the
possibility of misstatement. Accordingly, we hold that the trial court properly exercised its
discretion to exclude these records.38
PELL, Circuit Judge:
I concur in the portions of this opinion prepared by Judges Tone and Sprecher.
[595 F.2d 1353]
VII.
Weber's Political Acquaintances
Henry Weber, brother of Franklin Weber, called as a Government witness, was permitted to
testify on direct examination without objection that his brother Franklin was an acquaintance
of Clyde Choate. He was then asked whether his brother was an acquaintance of Paul Powell
to which he also responded in the affirmative. An objection was made, without any
specificity, following the answer as to Powell. There was no motion to strike the answer and
the "objection" as such was overruled. No effort was made at the time to demonstrate to the
trial judge any particular basis for the objection.
Subsequently during redirect examination Weber moved for a mistrial on the basis of the
Powell matter because "[i]t was highly prejudicial and has no relation whatsoever to this
case." The court in denying the motion, properly from our examination of the record,
observed that:
the reason I let that in is that you cross examined several witnesses about whether or not
there was any reason to believe Mr. Weber had any political connections, whether it was
credible to believe that he knew anybody, and there again, that is something you opened
up.
Without specific reference to Powell, Weber again moved for a mistrial following final
argument. He now says that which he didn't say to the court specifically that on the basis of
Fed.R.Evid. 404(b) the testimony as to Powell was improper and prejudicial in the light of
widely-circulated publicity of wrongdoing on the part of Powell when he was Secretary of
State of Illinois. Certainly in any trial and particularly in a complex trial involving numerous
defendants such as the present case, a lawyer should make clear to the trial judge the exact

nature of the claimed prejudice, which was not done here. Even, however, if we assume
what probably was a fact that the notoriety given to the Powell case some seven years
earlier was such as to make it clear why Weber's attorney did not want his client linked with
Powell, we agree here with the district court that the door had been opened. Weber, not the
Government, portrayed political associations, which he sufficiently indicated he did not have,
as a unique requirement for accomplishing that with which Weber is charged.
For the court to admit relevant evidence in rebuttal on the subject was well within its
discretion. See United States v. Eliano, 522 F.2d 201 (2d Cir. 1975); United States v. Jones,
438 F.2d 461 (7th Cir. 1971). C. Wright and K. Graham, Federal Practice & Procedure 5241.
The purpose of Rule 404(b) is to prevent "the use of alleged particular acts ranging over the
entire period of the defendant's life [making] it impossible for him to be prepared to refute
the charges, any or all of which may be mere fabrications." 2 J. Weinstein, Evidence
405[04], at 405-39, quoting Wigmore, Evidence 194. The defendant focused the proof on
this issue and cannot complain of surprise if evidence of his political associations was
introduced.
VIII.
Henry Weber's Grand Jury Testimony
Franklin Weber also objects to the admission of his brother Henry's grand jury testimony at
trial. Henry Weber testified on direct examination that he went to Vaduz, Liechtenstein, to
negotiate two letters of credit given to him by the defendant. During the course of the direct
examination, the Government attempted to introduce Henry Weber's inconsistent grand jury
testimony that he had never gone to Liechtenstein, testimony given two weeks after his
return from that country at the first of his two appearances before the grand jury. The court
would not admit the testimony on direct examination, however, on the basis that the trial
jury might unfairly infer that the defendant had somehow been responsible for his brother's
falsehoods. When cross-examined by the defendant, Henry explained that because he was
by coincidence going to Europe, he negotiated the letters of credit as a favor to his brother.
Henry also testified that the defendant had
[595 F.2d 1354]
told him the letters "covered sale commissions for oil or Arabian interest or something." The
trial court then permitted the Government to introduce the grand jury testimony on redirect
examination, and the defendant argues that the evidence still created the prejudical
impression that Franklin Weber forced his brother to testify falsely.
Weber's argument that the admission of this evidence was a prejudicial linking of the
brothers Weber, however, shifts the focus from the basis on which the evidence was properly
admitted. As the district court pointed out there need be no connection between Franklin
Weber and the giving of the false testimony to the grand jury for that testimony to be
admissible.
The trial court properly admitted the statement as nonhearsay, Fed.R.Evid. 801(c); see
Anderson v. United States, 417 U.S. 211, 219-21, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), to
rebut the theory of the defense raised by the defendant during cross-examination. During
cross-examination, the defendant did not attempt to rebut the Government's showing on
direct examination that Henry Weber negotiated the letters of credit. The defendant instead
attempted to impose upon the transactions the appearance of innocence. Once the
defendant, again opening a door, attempted to create this impression, the testimony
became significant as rebuttal merely because it was given, and not for its truth.39 The
grand jury testimony, viewed with other admissible evidence showing that it was false,
tended to establish that Henry Weber was aware that he was involved in improper
transactions. See id. at 220.

In his reply brief, Weber argues that the Government has resorted to mere rules of
impeachment to justify the introduction of the grand jury testimony. It is true that as a
secondary justification the Government, citing Fed.R.Evid. 607, argues that it could properly
impeach its own witness, although Weber does not argue otherwise.40 Although the
impeachment aspect is one which enters the present picture, this aspect appears neither to
be the prime thrust of the Government's position nor the basis on which the trial court
admitted the evidence. As the trial judge pointed out when the impeaching testimony was
being discussed, the cross-examination by Franklin Weber was designed expressly to bring
out that this was a routine transaction that the witness was conducting for his brother,
nothing was wrong with it and there was no reason to suspect it. The judge then pointed out:
You didn't have to do that. I had earlier ruled that this [impeaching testimony] would not be
admissible. Having opened it up, I think the Government is now entitled to show that two
weeks after he returned from Liechtenstein and I hadn't realized that it was that soon that
he appeared before the Grand Jury this witness said he had never been to Liechtenstein.
We agree with the district judge that the evidence was properly admissible through the open
door.
IX.
Denial of Effective Assistance of Counsel
A second aspect of the Swiss letters and Henry Weber's various connections therewith is the
basis for a claim that Franklin Weber was denied effective assistance of
[595 F.2d 1355]
counsel. The gist of the claim is that evidence pertaining to the Swiss letters in addition to
that discussed in Part VIII of this opinion not only further linked Franklin Weber with his
brother's first grand jury testimony but also constituted such a challenge to the integrity of
Franklin Weber's trial lawyer as to deny the defendant effective assistance of counsel.
Specifically, the proof to which the objection is directed is the testimony, presented during
the Government's rebuttal, of Assistant United States Attorney Michael O'Brien, who had
conducted the preliminary grand jury investigation. The testimony described the following
sequence of events: About a week after Henry Weber testified truthfully before the grand
jury on December 3, 1975, his second appearance, that he carried the letters of credit to
Liechtenstein, Franklin Weber's attorney had called Government counsel to report his client's
possession of other letters of credit. During closing argument, the prosecutor suggested,
"Isn't it interesting that after Henry Weber has all this recollection, then everybody is calling
up and telling the Government about it, after the cat is out of the bag." The defendant
argues that this statement implied that defense counsel engaged in wrongdoing and
therefore denied the defendant assistance of counsel. This argument is completely without
merit. The cases cited by the defendant, United States v. Candelaria-Gonzalez, 547 F.2d 291
(5th Cir. 1977), and Zebouni v. United States, 226 F.2d 826 (5th Cir. 1955), concerned
continuous derision of the defense attorney by the trial judge and are not in point.
Furthermore, we have difficulty seeing how this testimony and final argument disparaged
defense counsel. The Government's questioning and argument were obviously for the
purpose of rebutting the defendant's exculpatory evidence that Franklin Weber had not
learned of the grand jury investigation until "very recently," and that he had been suspicious
of the purpose behind the letters of credit, and that he therefore directed his attorney to
notify the United States Attorney that he possessed more letters of credit.
We find no error in the admission of the rebuttal evidence. It was for the jury to draw such
inferences as the evidence properly supported on the issues to be determined by the jury.
The admission of this evidence properly bearing on what amounted to an assertion of a

defense does not by any stretch of the imagination so impugn the defendant's attorney as to
make his assistance ineffective to the prejudice of his client. We find no suggestion in the
record that the attorney had the information with respect to the letters any sooner than he
provided the information to the Government.
X.
Judge's Comment during Weber's Testimony
Franklin Weber finally argues that a comment by the trial judge during his testimony
constitutes reversible error. The defendant testified, "I can swear that I did not see Mr.
Benton give him anything . . . ." The trial judge then said in the presence of the jury, "that is
what you are doing in everything you say. You understand that." Thereafter the matter was
brought to the attention of the judge by way of a motion for a mistrial in which it was
claimed that Weber's credibility was seriously depreciated in the eyes of the jury. The court
immediately stated that the remark was not intended in any such way and offered to make
that clear to the jury.
The judge did fully explain to the jury that in reflecting upon the matter he thought he
should not have made the statement and that he in no way intended to reflect or comment
on Weber's testimony or indicate any attitude whatsoever about the testimony. The judge
also in final instructions made it clear that any comment by the court was not intended to
invade the jury's province to decide the facts.
Weber, while not challenging the completeness of the court's curative instruction, argues
that it did nothing to heal an incurable
[595 F.2d 1356]
situation, stating that "A placebo cannot cure a terminal condition." In candor, we regard this
hyperbolic characterization as a desperate bit of straw grabbing. In the first place we would
have had difficulty even absent the curative instruction in reading this remark as any
indication that the judge was expressing disbelief in the defendant's testimony. The judge,
however, made it abundantly clear, if there had been any doubt, by his curative instruction
that there was no reflection on the witness's credibility. In any event, this was an isolated
incident in a long and complex trial. Weber testified for two full days during which the jury
had ample opportunity to formulate its opinion of his credibility without regard to what was
at most an oblique passing remark by the judge. Courts generally, and properly, decline to
reverse in comparable situations. See, e. g., United States v. Cardall, 550 F.2d 604, 606 (10th
Cir. 1976), cert. denied, 434 U.S. 841, 98 S.Ct. 137, 54 L.Ed.2d 105 (1978); Gordon v. United
States, 438 F.2d 858, 862-63 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56
(1971); United States v. Allen, 431 F.2d 712, 712-13 (9th Cir. 1970); United States v. Wilkins,
422 F.Supp. 1371 (E.D.Pa. 1976), aff'd sub nom. Appeal of Smith, 547 F.2d 1164 (3d Cir.
1976), 547 F.2d 1166 (3d Cir. 1976), 559 F.2d 1210 (3d Cir. 1977).
As the Supreme Court stated in United States v. Glasser, 315 U.S. 60, 83, 62 S.Ct. 457, 471,
86 L.Ed. 680 (1942):
[An] examination of the record as a whole leads to the conclusion that the substantial rights
of the petitioners were not affected. The trial was long and the incidents relied on by
petitioners few. We must guard against the magnification on appeal of instances which were
of little importance in their setting.
XI.
Sufficiency of Evidence as to Edwin Bull

The defendant Edwin Bull argues that the evidence against him was insufficient to sustain a
conviction for conspiracy because of an absence of evidence showing that he had
knowledge of the illegal purposes of the conspiracy. He argues that the statements of coconspirators connecting him to the conspiracy were improperly admitted against him, and
that if these inadmissible statements had been excluded, his conviction could not stand.
Bull's theory of defense was that he was merely a "friendly and accommodating"
businessman who earned a finder's fee and a subcontract by introducing the Ingrams to the
contract opportunities available at the Sanitary District. Especially damaging to this defense,
however, was testimony admitted at trial of conversations between Bull's alleged coconspirators concerning Bull's role in the conspiracy. Benton testified, for example, that prior
to receiving the contract, Ingram was having trouble generating sufficient cash to meet the
demands of Sanitary District officials. When Weber learned of this problem, he instructed
Benton to write a check for $25,000 (the amount then demanded) payable to "Mr. Bull's
company, Bull Towing Company, and that he and Mr. Bull would handle this check and
convert it into cash and take care of the staff of the Sanitary District." Bull argues that
without this statement the evidence merely shows that he deposited a check from Ingram
for $25,000 in the No. 3 Bull Towing account and drew a counter-check for the same amount
and received cash. Bull also declared this sum on his corporate and personal income tax
returns and paid the necessary taxes. According to Bull's brief, "[t]here is not a scintilla of
evidence that any of these monies reached anyone else." We hold that the co-conspirators'
statements connecting Bull to the conspiracy were admissible under Fed.R. Evid. 801(d)(2)
(E) and that the evidence against Bull was adequate to sustain the conviction.
Rule 801(d)(2)(E) provides that statements of a co-conspirator made during the course of
and in furtherance of a conspiracy are not hearsay. In United States v. Santiago, 582 F.2d
1128 (7th Cir. 1978), we held that the trial court alone should decide, as a
[595 F.2d 1357]
question of competence under Rule 104(a), the preliminary question of whether the
proponent has submitted sufficient proof that there was a conspiracy before admitting a coconspirator's statement under Rule 801(d)(2)(E). For the statement to be admissible, we
held that this preliminary showing must satisfy the preponderance of the evidence standard,
and that the trial court's determination of admissibility is final as to admissibility.
The proceedings below, however, took place prior to our decision in Santiago, at a time
when there were ambiguities in the law about who was to decide co-conspirator preliminary
questions and by what standards. See generally, 1 J. Weinstein, Evidence 104[05]. In
Santiago we noted that in this circuit the former standard for determining the admissibility of
co-conspirators' statements committed the question to both judge and jury. The trial court
would admit the statement if the proponent made a prima facie showing, on the basis of
evidence other than the statement, that there had been a conspiracy. The jury, however,
was instructed not to consider the statement against another defendant unless they found,
beyond a reasonable doubt, that the evidence other than the statement showed that a
conspiracy existed and that the other defendant was a member of the conspiracy. See also
United States v. Rizzo, 418 F.2d 71 (7th Cir. 1969), cert. denied, 397 U.S. 967, 90 S.Ct. 1006,
25 L.Ed.2d 260 (1970); United States v. Santos, 385 F.2d 43 (7th Cir. 1967), cert. denied, 390
U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1148 (1968).
The trial court in this case proceeded substantially according to the prior standard,
described in Santiago.41 Bull, however, relying on Santiago language, which, of course, was
not available to the trial judge here, seizes upon a part of the court's instructions given
during the course of the trial in connection with the admission of testimony of statements of
alleged co-conspirators. It is true that the judge did say that the jury could consider such
statements on the question of whether a conspiracy existed. Bull cites us to criticism in
Santiago of "the view that the existence of a conspiracy could be proved by the very

hearsay statement for which admission is sought." 582 F.2d at 1133 n. 11. That was done
here, he argues, and constituted "boot-strapping" proof which had been condemned by
earlier cases.
This argument however, taking language of the instructions out of context, ignores the clear
and explicit admonitions of the court during the course of the trial that as to any particular
charged co-conspirator it was essential that he be proved a participant in the conspiracy by
independent evidence before statements of others could be considered on the question of
his liability.
Thus, on the first occasion during the trial that the subject was addressed, which was early
in the trial, the judge instructed as follows:
There are two fundamental questions that you have to decide in regard to the conspiracy
count of the indictment. The first of those questions is what is the conspiracy that is alleged
by the indictment to have existed? Was there such a conspiracy? On that question you
consider all of the evidence that I allow in and you make up your minds at the conclusion of
the case as to whether a conspiracy, as alleged in the indictment, has been shown to exist
as between somebody.
[595 F.2d 1358]
The second question is and it is eight separate questions here was this particular
defendant shown to have been a member of that conspiracy. On that second question which
you must answer in regard to each defendant, only those acts of that particular defendant
should be considered to answer that question. You can't decide that Defendant B was a
member of the conspiracy, if you find there has been a conspiracy, on the basis of
something Defendant A said. It has to be on the basis of what you find Defendant B said and
did.
Those are the two questions, and let's just assume, generally speaking, that a jury in a
hypothetical case finds Defendant B to have been a member of the conspiracy. All right, then
and only then are the statements and actions of his alleged co-conspirators admissible
against him. Provided they are acts and statements which the jury finds were committed in
furtherance of the objectives of the conspiracy.
So, to recapitulate, question one, was there a conspiracy? Question two, was Defendant B a
member of that conspiracy? Question three, as to any acts or statements of an alleged coconspirator in considering whether you are going to consider that against Defendant B, was
that act or statement committed in furtherance of the common conspiracy?
Only if you answer all three of those questions in the affirmative can you consider this act or
statement of, say, Defendant A against Defendant B.
On analysis, all that the district court was really saying as to the establishment of a
conspiracy was as follows: If there was testimony as to a conversation between B and C
which reflected an agreement to violate the law, this testimony would be admissible as to B
and C and would, if believed by the jury, tend to establish a conspiracy as to B and C. If
during the course of the conversation either B or C had spoken of A's participation this would
not have been proof of A's participation unless and until it had already been established by
independent evidence, other than the statements of co-conspirators, that A was a
participant.
While the quoted portion of the instructions above was perhaps repetitive, and we note its
substance as to the necessity for independent evidence as to any particular defendant
becoming a conspiracy member was repeated thereafter, it is evident that the trial judge
was attempting to make absolutely clear to the jury by repetitive emphasis that the
statements of others could not be considered against a defendant for finding him to be a
participant in a conspiracy unless his membership had been otherwise independently
established. From the record we regard this attempt by the judge to have been successful.

In sum, we fail to see any prejudice to Bull. The instructions on conspiracy as in the case of
all instructions must be considered in the whole complex of instructions, and it was made
perfectly clear to the jury by those instructions that even though a conspiracy had been
established by all of the evidence which the court had admitted, the jury could not find Bull
guilty as a conspirator unless his membership in the conspiracy had been established by
independent evidence other than the statements of co-conspirators.
Further, and in any event on the record in this case, we are firmly convinced that apart from
any statements there was overwhelming independent evidence sufficient to show the
existence of a conspiracy. If there had been any error in the instruction it would have been
harmless. Fed.R.Evid. 103(a); Williams v. United States, 119 U.S.App.D.C. 190, 338 F.2d 530
(1964).
Bull disagrees that there was independent evidence linking him to the conspiracy and
asserts that the co-conspirators' statements were therefore not admissible against him. As
we have said the trial court instructed the jury that it must find beyond a reasonable doubt
and on the basis of independent evidence that Bull was a member of the conspiracy before
it could consider co-conspirator statements against Bull.
In reviewing the jury's determination of the sufficiency of the independent evidence linking
Bull to the conspiracy, we do not weigh the evidence or determine the credibility of
witnesses. We will affirm the jury's finding if there is substantial evidence, viewed in the light
most favorable to the government, to support it, Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Buschman, 527 F.2d 1082, 1085 (7th Cir.
1976), and we therefore turn to an examination of that evidence.
[595 F.2d 1359]
Robert Howson, an Ingram Contractors, Inc. Vice President, testified that Bull came to New
Orleans in March 1971 and told him that for a southern contractor like Ingram to get the
Sanitary District contract, a political contribution would be necessary. Benton testified that
Bull brought Benton and Weber together for a meeting later that month, and that the day
after this meeting, Bull told Benton that "if [Benton] agreed with the discussion with Mr.
Weber, he felt Ingram would get this contract, there would be no problem, and that he
expected to receive $100,000 and Mr. Weber's group $200,000." There was evidence that
Bull deposited a $25,000 check from Ingram, and withdrew the same amount in cash.
Although Bull declared the amount on his taxes, there was also testimony that Bull insisted
to Benton that his finder's fee from Ingram include reimbursement for the taxes he paid on
the check drawn to his company. From this testimony, the jury certainly could infer that Bull
did not keep the $25,000, and from Bull's insistence that Ingram be responsible for the
taxes, the jury could infer that Bull's laundering of the check was a favor for Ingram, to
whom Bull had earlier suggested the need for political contributions in exchange for a
contract. The testimony also showed that Bull's involvement in the bribery scheme
continued. When insisting on an increase in his subcontract rates, Bull was reminded by
Benton in January 1975 "that this contract extension was a similar situation with the original
contract and that Ingram did not retain all of the increase that would be reflected between
the various unit prices in the two agreements."
We have already found that the evidence that a conspiracy existed was overwhelming. In
United States v. Robinson, 470 F.2d 121 (7th Cir. 1972), we noted that once the existence of
a common scheme is established, very little may be required to show beyond a reasonable
doubt that a particular defendant became a party. See also United States v. Harris, 542 F.2d
1283 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). From
the evidence of Bull's independent acts and statements, the jury was entitled to find beyond
a reasonable doubt that Bull was a member of this conspiracy, and the jury therefore was
entitled to use the statements of other conspirators against him.42 The discriminating

conclusions of guilt and innocence returned by the jury in this complex case demonstrate
that the jury studied the evidence with great care. See United States v. Kaufman, 429 F.2d
240, 244 (2d Cir.), cert. denied, 400 U.S. 925, 91 S.Ct. 185, 27 L.Ed.2d 184 (1970). We
decline to disturb their verdict, holding that the independent evidence of Bull's knowing
participation in the conspiracy was sufficient to support the jury's use of the co-conspirators'
statements against him, and that with such evidence there is no merit in his claim of
insufficiency.
XII.
Bull's Claim of Prosecutorial Misconduct
Edwin Bull also argues that during its closing argument, the Government raised for the first
time an unfounded inference that he bribed someone in the Illinois Commerce Commission
to procure a Certificate of Public Necessity and Convenience for
[595 F.2d 1360]
Ingram. Specifically, during closing arguments the Government attorney made the following
statement:
On July 27, 1971, Frank Weber and Ed Bull went through another series of transactions to
generate cash very similar to what they did in April, to generate the $25,000. This time the
amount involved was $20,000.
Frank Weber made out a Southwest Expressways' check for $20,000, payable to Bull Towing.
Bull took it to the bank, deposited it into the Bull Towing Company account, and wrote a
check in that amount made payable to himself and received $20,000 in cash.
This occurred on July 27, ladies and gentlemen, the day before Ingram received his
Commerce Commission Certificate of Registration.
During rebuttal argument, the Government added:
Would you put up Government Exhibit 1-12(A).
That is a check from Southwest Expressways to No. 3 Bull Towing dated July 27, 1971, the
same day as Government Exhibit 1-12(D) was issued. It is again a check to Ed Bull, and as
the evidence indicates, Mr. Bull left the bank with $20,000. Benton had nothing to do with
this transaction, but as you have seen from the notes that Mr. Weber wrote, there was
apparently some sort of problem at the ICC, Illinois Commerce Commission.
It just so happens that the following day, Ingram is granted their Certificate of Convenience
and Necessity by the Illinois Commerce Commission. Well, the bankers and those documents
are not ghosts, and they begin to add up.
Bull argues that this suggestion constituted an unconstitutional amendment of the
indictment and that it prejudiced unfairly the preparation of his defense. The defendant
concedes that the evidence shows he converted a $20,000 check from Franklin Weber to
cash on July 27, 1971, but argues that absolutely no evidence supports the implication in the
Government argument that he bribed the Commerce Commission.
Although the prosecution, of course, must never refer to matters with no basis in the
evidence, United States v. Morris, 568 F.2d 396 (5th Cir. 1978); United States v. Meeker, 558
F.2d 387 (7th Cir. 1977), the prosecutor may in argument suggest reasonable inferences
from the evidence already admitted. United States v. Jones, 157 U.S.App.D.C. 158, 482 F.2d
747 (1973). Because of the secret nature of the crime, conspiracy is especially subject to
proof by circumstantial evidence. We decline to require the prosecutor to suggest to the jury
only conclusions supported by direct evidence.
During the trial there was evidence that the Certificate of Public Necessity and Convenience
was granted to Ingram the day after Bull converted the check to cash. Government Exhibit
11-1, a memo made by Weber, also admitted in evidence, indicated that Weber had made

payments to the Commerce Commission on behalf of Ingram. On direct examination, Weber

testified that he gave Bull the $20,000 check as a payment for a dredge, and during crossexamination the Government confronted Weber with the connection between the memo, the
laundered check, and the issuance of the Certificate. Bull did not object to this line of
questioning.
These matters admitted in evidence were available to Bull in time to prepare his rebuttal.
The conversion of the $20,000 check to cash was one of the overt acts charged in the
conspiracy indictment. The documents connected with this line of proof were turned over to
Bull's attorney ten months prior to the trial. Bull's argument that this closing statement
unfairly prejudiced his defense must therefore fail.
Our examination of the Government's argument and the evidence supporting it also leads us
to conclude that the inference created was that Weber, not Bull, bribed the Commerce
Commission. The Government therefore did not stray beyond the confines of the scheme
alleged in the indictment, which describes Bull in paragraphs
[595 F.2d 1361]
21 and 27 as having been a knowing conduit for the bribery funds. Furthermore, paragraphs
21 and 27 of the indictment describe in broad language the objects of the bribery scheme as
"public officers and employees," so that proof of bribes to Illinois Commerce Commission
officials was entirely within the scope of the scheme alleged. Bull's argument that any proof
involving officials from agencies other than the Sanitary District amended the indictment is
therefore without merit. See Stirone v. United States, 361 U.S. 212, 218-19, 80 S.Ct. 270, 4
L.Ed.2d 252 (1960).
XIII.
Claimed Error of Instructions on Travel Act
The defendant Frederick Ingram challenges the portion of the court's instructions pertaining
to the counts charging violations of 18 U.S.C. 1952 (the "Travel Act") insofar as the jury
was told that under the Travel Act a defendant need not know or reasonably foresee that the
facilities of interstate commerce will be used or that someone will travel in interstate
commerce in order to be guilty under the Travel Act. The authority in this circuit is that
neither the language nor the purpose of the Travel Act compels this showing of knowledge
on the part of each co-conspirator. United States v. Peskin, 527 F.2d 71 (7th Cir. 1975), cert.
denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976). See United States v. Feola, 420 U.S.
671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). The defendant has offered no persuasive reason
for a different rule. The use of interstate facilities merely provides the basis for federal
jurisdiction. United States v. Peskin, 527 F.2d at 78; United States v. Bursten, 560 F.2d 779,
783-84 (7th Cir. 1977).
What we have said herein no way indicates that there is not a necessity for interstate travel
or the use of an interstate facility. The court did properly instruct the jury that the
Government had to prove:
(1) that someone traveled in interstate commerce, or used an interstate facility in
furtherance of the bribery scheme; (2) that a person who caused the travel or use did so
with intent to facilitate the bribery scheme; (3) that a member of the scheme thereafter
performed or caused to be performed acts to promote the carrying on of the bribery
scheme; and (4) that the particular defendant under consideration "was a knowing and
willful participant in the bribery scheme at the time of the interstate travel or use of the
interstate facility and at the time the subsequent act or acts took place."
The fact that Frederick Ingram did not travel interstate or use interstate facilities or that he
may not have known that others in the bribery scheme would do so is immaterial.

The judgments accordingly are affirmed.

AFFIRMED.
FootNotes
1. We use the spelling of Ingram's first name that appears in the indictment (Frederick)
rather than the spelling that appears in his brief (Frederic).
2. The indictment also charged appellants McPartlin, Weber, and Janicki with filing false
income tax returns in violation of 26 U.S.C. 7206(1). The tax counts against McPartlin and
Weber were dismissed before trial. Janicki was convicted of tax violations, but raises no issue
on appeal with respect thereto.
3. In 1975 the name was changed to "Board of Commissioners."
4. Since Benton did not meet Janicki until a month later, the caller was probably Weber.
5. Benton testified that Bull had informed him that he needed money to pay income taxes on
the money that he had laundered through Bull Towing Company. Part of the $76,000 was for
this purpose, but the government concedes that part of the $76,000 finder's fee was
legitimate.
6. Benton testified that he informed Frederick Ingram of Weber's first proposal that Ingram
Corporation make a political contribution immediately after Weber made it in March, 1971,
and that Ingram authorized the payments then.
7. It is not clear whether the $95,000 due in September on the first agreement was ever
paid. Nor is it clear why Benton paid Janicki and Weber $775,000 on January 26, 1973, rather
than the $750,000 agreed to.
8. It is not clear how Weber expected his brother to cash the sixth letter of credit in
November, 1975; it did not mature until December, 1975. Nevertheless, it is undisputed that
Henry Weber did go to Vaduz, Liechtenstein carrying the two letters of credit with the intent
to negotiate them.
9. Benton admitted siphoning off for his own use some of the funds that the Ingrams
intended be paid to the Illinois defendants. See Part IV, infra.
10. In Brady, which is famous for a holding irrelevant here (viz., that the prosecution's
suppression of evidence requested by the defense and material to punishment violated the
due process clause of the Fourteenth Amendment), the Court also held that no federal right
was violated by limiting a new trial to the issue of punishment where the suppressed
evidence was inadmissible as to guilt, even though there might have been some spillover
favorable to the defendant on the issue of guilt. At the first trial, in which a jury had
convicted Brady of first degree murder and fixed penalty as death, the prosecution had
failed to disclose a confession in which petitioner's accomplice admitted having actually
strangled the victim. Concerning the petitioner's right to a new trial on both guilt and
punishment, the Court said:
A sporting theory of justice might assume that if the suppressed confession had been used
at the first trial, the judge's ruling that it was not admissible on the issue of innocence or
guilt might have been flouted by the jury . . . . But we cannot raise that trial strategy to the
dignity of a constitutional right and say that the deprival of this defendant of that sporting
chance through the use of a bifurcated trial . . . denies him due process or violates the Equal
Protection Clause of the Fourteenth Amendment.
373 U.S. at 90-91, 83 S.Ct. at 1198 (footnote omitted).
11. Although the Commentary to 2.3(b) of the ABA Minimum Standards for Criminal Justice:
Standards Relating to Joinder and Severance (Approved Draft 1968), contains a sentence
which, standing alone, indicates that "defenses . . . antagonistic to each other" constitute a
sufficient basis for granting a severance, the Commentary elsewhere states that this is only
one of several factors to be considered and makes it clear that the appropriateness of

severance depends upon the degree and kind of antagonism. See also the federal cases
cited in the ALR Annotation referred to in the Commentary, 70 A.L.R. at 1184-1185; and see
Annot., 82 A.L.R.3d 245, 250-251, 257-259 (1978). As the cases cited in the text of this
opinion illustrate, the federal courts have held that an attempt by one defendant to place
the guilt upon another does not require severance. See also 82 A.L.R.3d at 260-261.
12. McPartlin's attorney advised McPartlin to meet with the investigator because it was in
the interest of all the defendants to "poke holes" in the Benton diaries.
13. In the alternative, the court ruled that McPartlin's statements were inadmissible hearsay
not within the exception provided by Rule 804(b)(3), Fed.R.Evid. (declarations against penal
interest). Since we agree that McPartlin's statements are protected by his attorney-client
privilege, and in any event their exclusion was not prejudicial, we do not reach the
alternative ground for exclusion.
14. The trial judge remarked at one point that the evidence "would be of great assistance to
Ingram" if admissible. With respect, we see no basis for that conclusion and believe that, if
the judge had been given the opportunity we have had to lay the facts proved in other ways
beside the proffered evidence and carefully compare the two, he would have reached the
same conclusion we do.
15. In Hunydee v. United States, supra, the attorney for Hunydee's co-defendant believed
that the government would not prosecute the co-defendant if Hunydee pleaded guilty, and
therefore their interests conflicted. Nevertheless, the Ninth Circuit held that statements
made by Hunydee during a joint conference held for the purpose of discussing his
willingness to plead guilty, a matter of common interest, which affected both attorneys'
subsequent representation of their respective clients, were privileged. Similarly, in Schmitt,
supra, the common interest of the co-defendants related to the exclusion of a specific item
of evidence. See, Note, supra, 63 Yale L.J. at 1035-1036.
16. Smale v. United States, 3 F.2d 101, 102 (7th Cir. 1924), relied on by Ingram, in which one
defendant volunteered statements to another defendant and the latter's attorney and the
requisite joint interest and confidentiality were both lacking, does not establish the
compatible defense requirement for which Ingram argues.
17. In United States v. McClure, 546 F.2d 670 (5th Cir. 1977), relied upon by Ingram, the
court held it to have been reversible error to exclude as irrelevant "evidence of a systematic
campaign of threats and intimidation" by an informer against persons other than the
defendant, offered to corroborate the defendant's testimony that he had been threatened
and coerced by the informer to commit the crime charged. The case is not authority for the
proposition that evidence of threats of physical violence, made by some unnamed person,
directed at a person other than the defendant, is relevant in a case in which the defendant
does not contend that his criminal activity was motivated by threats of physical violence or
that he even had knowledge of such threats at the time of his criminal activity.
18. It is to be noted that this defense is inapplicable to the counts under which Ingram was
found guilty of participation in payments made prior to February, 1972. (Counts 3, 4, and 6.)
As to these counts Ingram contended he did not know of the payments. The conspiracy
count (Count 1) involved payments made before and after that date, but the verdicts on the
three substantive counts tell us that the jury disbelieved Ingram's denial of knowledge of the
earlier payments, so the extortion defense would not suffice under the conspiracy count.
19. Indeed Ingram seems to have admitted as much. In his brief defendant Ingram states:
"Alternatively, the jury might confusingly [sic] have reasoned that threatened liability under
the liquidated damages clause was an `economic loss'. . . ." Brief for Defendant Ingram at
37.
20. Ingram made the following written objection to the instruction:
Court's Instruction No. 2: The Ingram defendants have tendered several alternative charges
dealing with the subject matter as Court's Instruction No. 2, each of which we submit
correctly states the law with respect to the effect of economic coercion on the defendant's
alleged intent to bribe. In support of the tendered charges, we referred to our memorandum
on the "extortion defense" submitted to the Court in July 1977, which we incorporate by
reference here. The instruction given by the Court treats the issue not as one of economic

coercion bearing on intent, but as one of duress, contrary to the analysis in United States v.
Barash, 365 F.2d 395 (2d Cir. 1966), and contrary to the pattern instruction in Devitt &
Blackmar 34.10. Accordingly, we object to the Court's charge in this respect and we object
to the omission of any of the proposed instructions on this issue tendered by the Ingram
defendants, or some modified version of those proposed instructions.
21. Ingram attempts to bolster this argument by urging that decisions under the Hobbs Act
have rejected any distinction between threats of economic loss and gain in extortion
prosecutions. See, e. g., United States v. Hathaway, 534 F.2d 386 (1st Cir.), cert. denied, 429
U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). We do not see the relevance of such authority,
however, since there is no reason that conduct giving rise to criminal liability for extortion
should necessarily provide a criminal defense for the reciprocal party. Indeed it does not
seem illogical to suggest that it may be reasonable to prosecute both the official who
conditions discretionary benefits on bribes and the person who seeks to obtain such
benefits. See United States v. Hall, 536 F.2d 313, 321 (10th Cir. 1976), cert. denied, 429 U.S.
919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1977) ("bribery and extortion are not to be considered
mutually exclusive nor does the fact that the alleged victims of the extortion were also
bribers nullify anything."); United States v. Gill, 490 F.2d 233 (7th Cir. 1973), cert. denied,
417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1139 (1974).
22. See note 20 supra.
23. United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97
S.Ct. 63, 50 L.Ed.2d 79 (1976). See p. 25 supra.
24. As the court in Barash noted:
Although the instruction that only a threat of death or serious bodily injury would make out
the defense of duress appears correct enough . . . that was only part of the story since
Barash had also requested instructions as to the bearing of threats of economic harm on the
intent required for conviction. . . . We think that if a government officer threatens serious
economic loss unless paid for giving a citizen his due, the latter is entitled to have the jury
consider this, not as a complete defense like duress but as bearing on the specific intent
required for the commission of bribery.
365 F.2d at 401-02.
25. The defendant clearly makes these admissions in his brief when he argues that the
entitlement distinction was erroneous:
This second element [of the instructions, that the extortion defense was not available if the
defendant was seeking a benefit to which he was not entitled,] was tantamount to a judicial
instruction to reject the extortion defense in light of the record that had already been made.
Bronson Ingram had testified (as quoted at pp. 16-17, supra) that on February 21, 1972,
during the meeting between the Ingram brothers and Benton, Benton had said, "[W]e don't
really have a legal position to get the rest of our money" (Tr. 4075). Indeed, it was precisely
because there was no legal recourse that, according to both Ingrams, they saw no option
other than to capitulate to the demands.
....
On any fair reading of the record, Mr. Ingram was in the position of ordinary applicants for
zoning variances or for discretionary governmental action. He honestly and with
substantial basis believed that it was right and proper for the MSD to exercise its
discretion to purchase the pipeline and to refrain from punitive use of the liquidated
damages clause. Whether he also believed that Ingram Corporation had a legal right under
the existing contracts to obtain this result was completely irrelevant to the question of his
intent to commit bribery.
Brief for Defendant Ingram at 39-41 (emphasis supplied). Ingram's admission that he was in
the same position as "ordinary applicants for zoning variances" is particularly damaging in
that it was in precisely that context in Peskin that we explicitly held the extortion defense to
be unavailable as a matter of law. 527 F.2d at 84. See also the cited quotation on p. 25
supra.

26. Ingram also objects to the trial court's refusal to give a "theory of defense" instruction
describing Ingram's view of the extortion. This is a somewhat surprising argument since the
trial court's instruction gave more factual information as to the defendant's theory, albeit
more concisely, than the defendant's proposed instructions. Ingram's factual theory of his
defense is detailed in the following excerpts from the defendant's proposed instructions:
If, on the other hand, the Ingram defendants had formed no purpose of offering any money
or thing of value to any personnel of the Metropolitan Sanitary District, and acted only
because of demands or threats communicated by Benton, and believed that the
Metropolitan Sanitary District intended to carry out the threats not to pay for the pipeline
and destroy the company on the barging operations unless their demands were satisfied, or
if you have a reasonable doubt on this issue, then the essential element of intent is not
present and you will find the defendants Frederic B. Ingram and E. Bronson Ingram not guilty
of all charges.
.....
It is the position of the defendants Frederic B. Ingram and E. Bronson Ingram that they had
no purpose of improperly offering or promising any money or thing of value to any official of
the Metropolitan Sanitary District in connection with the sludge contract, and that they did
not devise or intend to devise a scheme or artifice to defraud either the Metropolitan
Sanitary District, its citizens, its officers and employees, or the Burlington Northern Railroad
and other competitors. Indeed, it is the position of the defendants Frederic B. Ingram and E.
Bronson Ingram that they acted only because of demands or threats communicated to them
by William J. Benton and because they believed that those threats would be carried out
unless the demands were satisfied.
If you find that the defendants Frederic B. Ingram and E. Bronson Ingram did not act
voluntarily, or had formed no purpose of offering any money or thing of value to the
employees or officers of the Metropolitan Sanitary District, and acted only because of
demands or threats communicated by William J. Benton, and that they believed that those
threats would be carried out unless the demands for payment were satisfied, then the
essential element of intent is not present and you must find the defendants Frederic B.
Ingram and E. Bronson Ingram not guilty of the charges against them.
In contrast to these generalized and repetitive instructions, the trial court instructions, set
out on pages 23-25 supra, concisely explained the defendant's theory that the alleged
extortion scheme revolved around threats not to purchase the pipeline, as well as setting out
defendant's additional factual theory that the scheme involved threats to assess liquidated
damages in an unreasonable manner. Thus, the defendant Ingram's claim that the trial court
erred in rejecting a "theory of defense" instruction is without merit.
27. The government offered to prove that Ingram had personal control of a cash box
containing unreported funds from scrap sales which were distributed to Louisiana politicians.
Additionally the government offered to prove that a joint-venture in which Ingram Corp. was
a participant had paid a real-estate commission to a Louisiana state representative who
gave part of that payment to another state representative and kicked back another part of it
to Frederick Ingram personally. The government also offered to prove that Ingram Corp.
made kickback payments to an Amoco employee who was potentially able to provide inside
information and influence the level of payments by Amoco to Ingram. Finally, the
government said it could prove that Ingram Corp. had made an interest-free,
uncollateralized loan to an Indonesian military officer who was able to influence contracts for
Ingram in Indonesia.
28. Ingram's assertion that such a practice is "moral" in Brazil tempts us to examine the
philosophical underpinnings of an ethical system that varies with geographical or cultural
boundaries. Even if morality varies with one's own culture, can it be said that an individual
from a cultural and moral tradition that condemns a practice can morally engage in that
practice once he simply steps "across the river" into a culture with different norms? See B.
Pascal, Pensees 151 (Editions Garnier Freres 1964) ("Plaisante justice qu'une rivire borne!

Vrit au dea des Pyrnes; erreur au dela." "Curious justice that a river bounds! Truth
on one side of the Pyrenees; error on the other.")
29. See also United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), cert. denied, 429 U.S.
818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1978) (upholding admission of evidence of subsequent
bribes to public officials).
30. United States v. Feinberg, 535 F.2d 1004, 1009 (7th Cir.), cert. denied, 429 U.S. 929, 97
S.Ct. 337, 50 L.Ed.2d 300 (1976). Compare the majority opinion in United States v.
Beechum, 582 F.2d 898, 910, 912-913, (5th Cir. 1978) (en banc) with the dissent in that
case, id. 918, 922-923 (Goldberg, Godbold, Simpson, Morgan, and Roney, JJ., dissenting).
31. See note 27 supra.
32. Defendant Janicki also apparently claims that the government did not ultimately turn
over all exculpatory material relating to specific instances of embezzlement: "the
Government may have secured information about particular instances of embezzlement
about which the defendant was unaware. . . ." Brief of Defendant Janicki at 32. However, a
denial of Due Process cannot be premised on the defendant's mere conjecture that there
might have been favorable evidence which was undisclosed. The existence of the evidence
must be established, and here the defendants offered nothing to rebut the government's
assertion that it had turned over to the defendants all its information on the embezzlement.
33. At trial the defendants made only generalized claims of prejudice without advancing any
specific theories upon which a finding of prejudice might be based. Tr. at 230-31 (Janicki),
249-50 (McPartlin). Such specific theories were advanced for the first time in the briefs
submitted to this court.
34. The defendants have also attacked the contemporaneity of the entries, arguing that the
records were inadmissible because entries were made relating to appointments before the
appointment took place. This is an overly narrow construction of "at or near the time." Even
though such entries were not made "at or near the time" of the meeting they were "at or
near the time" the appointment was made. This seems to be sufficient contemporaneity to
constitute a business record documenting the making of appointments.
35. Rule 803(24) provides:
(24) Other exceptions. A statement not specifically covered by any of the foregoing
exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts; and (C) the general purpose of
these rules and the interests of justice will best be served by admission of the statement
into evidence.
36. McPartlin argues that evidence denying Weber's participation in the first bribe
installment would have inured to his benefit since the original installment was alleged to
have been delivered to McPartlin in Weber's presence. Thus, presumably, any cash
deposited by Weber, if not from innocuous sources, would have been obtained from
McPartlin. We do not think, however, that any benefit from such evidence would have been
sufficient to have made its exclusion a denial of a fair trial to McPartlin. The fact that Weber
may not have received a cash rake-off from this first installment in no way detracts from the
credibility of testimony that McPartlin received the money; at most such evidence would
have only contributed to a demonstration of McPartlin's penuriousness.
37. Rule 801(d)(1)(B) provides that
(d) A statement is not hearsay if . . . (B) consistent with his testimony and is offered to rebut
an express or implied charge against him of recent fabrication or improper influence or
motive . . ..
38. Further support can also be found in this circuit's decision in United States v. Ware, 247
F.2d 698 (7th Cir. 1957), also cited by the Advisory Committee as a proper application of the
untrustworthiness principle. In Ware this circuit held that records of drug purchases made by
a drug agent were inadmissible in subsequent prosecutions, noting that "such utility as . . .
[these records] possess relates primarily to prosecution of suspected law breakers and only
incidentally to the systematic conduct of the police business." Id. at 700 (emphasis

supplied). Likewise, the notations here must be seen as relating primarily to the avoidance
of additional tax liability or prosecution as a result of an audit and only incidentally to the
conduct of Weber's business.
39. The Government's theory of the case was that Henry Weber did go to Liechtenstein to
negotiate the letters of credit. Henry's negotiation of the letters of credit in Liechtenstein
formed the basis of Count 32 of the indictment. Because the Government was not trying to
prove the truth of the out-of-court statement, the defendant was not prejudiced by lack of
cross-examination at the time of the grand jury testimony. Anderson v. United States, 417
U.S. at 220-21, 94 S.Ct. 2253.
40. The Government also points out that pursuant to Rule 613(b), the witness was permitted
on recross-examination to explain the impeaching grand jury testimony by stating that he
had been unfamiliar with the geography of Liechtenstein and because of that he had not
understood the question at the time of his first grand jury appearance.
41. Although the record is not clear, we assume arguendo that the trial court, in letting in
the statements, applied the lesser prima facie standard then used for determining the
existence of a conspiracy for purposes of admission, rather than the stricter preponderance
test prescribed in Santiago.
42. Although our decision in Santiago commits this admissibility question to the court in the
future, we nevertheless apply the then current standards to evaluate the procedures at trial.
The defendant has not challenged the submission of the admissibility issue to the jury.
Furthermore, we fail to see how this "added layer of fact-finding," although unnecessary,
could prejudice the defendant. United States v. Santiago, 582 F.2d 1128, 1136 (7th Cir.
1978); United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977).
As we observed in Santiago, there is some danger of confusing the jury with the instruction
because the judge essentially is telling the jury not to consider the evidence unless it has
already found the defendant guilty. See Carbo v. United States, 314 F.2d 718, 736, 84 S.Ct.
1625, 12 L.Ed.2d 498 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d
498 (1964). We do not regard the instruction as prejudicial, however, because it at least
cautioned the jury against the dangers of using this evidence for improper purposes. 1 J.
Weinstein, Evidence 104[05], at 104-45.

518 F.2d 972

UNITED STATES of America, Plaintiff-Appellee,
v.
Ana Luisa GORDON-NIKKAR, Defendant-Appellant.
No. 75-1950
Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.
Sept. 5, 1975.
Lewis S. Kimler, Miami, Fla. (court appointed), for defendant-appellant.
Robert W. Rust, U. S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.

Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.

view counter
AINSWORTH, Circuit Judge:
1
Appellant, Ana Gordon-Nikkar, was convicted after a trial by jury on all three counts of an
indictment charging her with conspiracy to possess with intent to distribute approximately
four kilograms of cocaine, and the substantive charges of possession with intent to distribute
and distribution of the cocaine. 21 U.S.C. 841(a)(1), 846. On appeal, appellant contends
her conviction should be reversed because the district court permitted a Government
witness, Brenda Marchand, to give testimony regarding allegedly privileged conversations
between appellant's attorney and his clients, and because the trial court denied appellant's
motion to quash the jury panel on account of the exclusion of resident aliens from grand and
petit juries. We affirm.
I.
2
Brenda Marchand was charged as a codefendant with the crimes for which appellant was
convicted. Marchand subsequently pled guilty on Count I of the indictment and testified at
trial for the Government. Prior to entering her plea, Marchand had two meetings in the office
of appellant's attorney, Mr. Estrumsa.1 On each of these occasions, several of the
codefendants were present. Marchand, however, was not a client of Estrumsa, and it is
unclear whether all the other persons in these meetings were Estrumsa's clients. Of the two
conversations related by Marchand, the second was the subject of thorough crossexamination by Estrumsa. The second conversation involved Estrumsa's alleged
recommendation that Marchand leave the country and go to Venezuela. On redirect, the
Government inquired, over defense objection, into the substance of the conversation during
the first meeting. Marchand testified that at this meeting the participants, at Mr. Estrumsa's
suggestion, agreed to give perjured cover-up testimony at trial to the effect that none of
them had possessed the cocaine, but instead merely happened to be at a party where the
cocaine was discovered.
3
The principal issue in this regard is whether the statements in attorney Estrumsa's office
were protected by the attorney-client privilege.2 There were at least five persons present at
Estrumsa's office on this occasion; at least one of the persons, Brenda Marchand, and
perhaps others, were not clients of Mr. Estrumsa. A communication divulged to "strangers"
or outsiders can scarcely be considered a confidential communication between attorney and
client. See In re Grand Jury Proceedings, 5 Cir., 1975,517 F.2d 666; United States v.
Blackburn, 5 Cir., 1971, 446 F.2d 1089, 1091; International Business Machine Corp. v. Sperry
Rand Corp., D.Del., 1968,44 F.R.D. 10, 12; United States v. United Shoe Machinery Corp.,
D.Mass., 1950, 89 F.Supp. 357, 358; 8 Wigmore on Evidence 2311 (McNaughton Rev.1961).
Therefore, this communication is not protected by the attorney-client privilege. But even if it
appeared that the communication in question were otherwise privileged (i. e., that the
communication was considered confidential despite the presence of a stranger), the
testimony was nonetheless admissible. The conversations in question dealt with plans to
commit perjury so as to hide the criminal activity of appellant and others. It is beyond
dispute that the attorney-client privilege does not extend to communications regarding an
intended crime. See 8 Wigmore on Evidence 2298 (McNaughton Rev.1961) and cases cited;
Pollock v. United States, 5 Cir., 1953, 202 F.2d 281, 286. The policy underlying the attorney-

client privilege is to promote the administration of justice. It would be a perversion of the

privilege to extend it so as to protect communications designed to frustrate justice by
committing other crimes to conceal past misdeeds.
II.
4
Appellant next argues that the trial court erroneously refused to quash the petit jury venire
as requested on the ground that the exclusion therefrom of resident aliens deprived her of
her right to trial before a jury representing a fair cross-section of the community. The right
and duty to act as grand or petit jurors is presently reserved to citizens. "Any citizen of the
United States . . . is competent to serve as a grand or petit juror." 28 U.S.C. 1861
(emphasis added). See also 28 U.S.C. 1865. This statutory mandate serves to exclude
otherwise eligible resident aliens from jury service. All defendants at the trial below were of
Cuban origin. Defense counsel alleged to the trial court that in Miami, where the trial took
place, 30 per cent of the city's population are resident aliens, mostly of Cuban descent. It is
contended that the exclusion of otherwise eligible resident aliens under these circumstances
deprived appellant of a fair trial.
5
It is true that the Supreme Court has held that the Sixth Amendment right to an impartial
jury encompasses a fundamental right to trial by a jury which is a truly representative crosssection of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690
(1975); see Peters v. Kiff, 407 U.S. 493, 498, 92 S.Ct. 2163, 2166, 33 L.Ed.2d 83 (1972);
Glasser v. United States, 315 U.S. 60, 86, 62 S.Ct. 457, 472, 86 L.Ed. 680 (1942).3 Despite
this requirement, however, "it has never been thought that federal juries must be drawn
from a cross-section of the total population without the imposition of any qualifications."
United States v. McVean, 5 Cir., 1971, 436 F.2d 1120, 1122, cert. denied, 404 U.S. 822, 92
S.Ct. 45, 30 L.Ed.2d 50 (emphasis in original). Thus, if citizenship is a reasonable
qualification for jury duty and resident aliens may properly be excluded from jury service, no
Sixth Amendment violation results from such an exclusion. The "truly representative crosssection" requirement encompasses only individuals qualified to serve as jurors. Our inquiry is
thus whether the Government can constitutionally impose citizenship as a qualification for
jury service.
6
In a series of cases as recent as 1973, the Supreme Court has held that aliens are protected
by the Equal Protection Clause of the Fourteenth Amendment, and that classifications based
on alienage are inherently suspect and subject to close judicial scrutiny. In re Griffiths, 413
U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct.
2842, 37 L.Ed.2d 853 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d
534 (1971); Takahashi v. Fish and Game Commission,334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed.
1478 (1948); cf. Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Yick Wo v.
Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). While all the previous cases
involved challenges based on the Equal Protection Clause of the Fourteenth Amendment to
discrimination by states on the basis of alienage, the same analysis is applicable to the Due
Process Clause of the Fifth Amendment, which relates to classifications by the Federal
Government. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1953). If a
classification is invalid under the Equal Protection Clause of the Fourteenth Amendment, it is
also invalid under the Due Process Clause of the Fifth Amendment. Johnson v. Robinson,415
U.S. 361, 363 n. 4, 94 S.Ct. 1160, 1164 n. 4, 39 L.Ed.2d 289 (1974); see Richardson v.
Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971). Because alienage is a
suspect classification, the Federal Government must therefore demonstrate that it has a
compelling state interest in confining the selection of jurors to those who are citizens.

7
The precise issue before this court was considered in Perkins v. Smith, D.Md., 1974, 370
F.Supp. 134 (three-judge court), appeal docketed,43 U.S.L.W. 3001 (U.S., June 21, 1974)
(Docket No. 73-1915).4 In Perkins, the court held that there was a compelling state interest
in restricting jury service to citizens, and upheld the federal statutory scheme excluding noncitizens from jury service. We agree with the court's conclusion that there was a compelling
interest "in ensuring that persons who serve as jurors are personally committed to the
proper application and enforcement of the laws of the United States" which therefore
justifies the exclusion of aliens. Perkins v. Smith, supra, 370 F.Supp. at 142 (concurring
opinion). The following discussion from Perkins is pertinent:
8
In maintaining the jury system as "the very palladium of free government" the states
logically can anticipate that native-born citizens would be conversant with the social and
political institutions of our society, the customs of the locality, the nuances of local tradition
and language. Likewise naturalized citizens, who have passed through the citizenship
classes sponsored by the Immigration and Naturalization Service, have demonstrated a
basic understanding of our form of government, history and traditions. There is no
corresponding basis for assuming that resident aliens, who owe allegiance not to any state
or to the federal government, but are subjects of a foreign power, have so assimilated our
societal and political mores that an equal reliance could be placed on their performing as
well as citizens the duties of jurors in our judicial system.
9
The nature of the operation of juries makes it apparent that persons unfit for jury service can
work a great deal of harm, through inability or malice, to efficiency and fairness. Jury
deliberations are perhaps the most secret form of decision-making in the nation; the means
of persuasion used by jurors on each other are never revealed. A single juror who failed to
understand the import of the evidence being presented or who lacked any concern for the
fairness of the outcome could severely obstruct or distort the course of justice. A single
persuasive and unprincipled juror could even direct the course of justice into channels
deliberately chosen for their deleterious effect on this country. We conclude, therefore, that
the state has a compelling interest in the restriction of jury service to those who will be loyal
to, interested in, and familiar with, the customs of this country.
10
Resident aliens by definition have not yet been admitted to citizenship. Until they become
citizens, they remain in most cases legally bound to the country of their origin. Nothing is to
prevent their return to that country, or a move to yet a third nation. It is true that many, if
not most, aliens do intend to become citizens, and that their loyalty could probably be
counted upon. However, it is the process of filing for citizenship that establishes that loyalty;
any attempt at prior screening would undercut the efficiency and significance of existing
procedures. Therefore, although the presumption that all aliens owe no allegiance to the
United States is not valid in every case, no alternative to taking citizenship for testing
allegiance can be devised, so that we conclude that the classification is compelled by
circumstances, and that it is justifiable.
11
370 F.Supp. at 138.
12
While we are satisfied that the Government has a compelling state interest sufficient to
uphold the statute as constitutional, there is another reason why aliens may be excluded
from federal juries. Under Article I, section 8, clause 4 of the Constitution, Congress is
granted the power "to establish an uniform Rule of Naturalization." This specific grant of

authority vests in Congress the plenary, unqualified power to determine which aliens shall
be admitted to this country, the period they may remain, and the terms and conditions of
their naturalization. Graham v. Richardson, supra, 403 U.S. at 377, 91 S.Ct. at 1854;
Takahashi v. Fish and Game Comm'n, supra, 334 U.S. at 419, 68 S.Ct. at 1142; Hines v.
Davidowitz, 312 U.S. 52, 66, 61 S.Ct. 399, 403, 85 L.Ed. 581 (1941); see also Harisiades v.
Shaughnessy,353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950).
13
The plenary authority to admit or exclude aliens necessarily permits Congress to place
certain conditions on an alien's right of entry or continued residence. Silverman v. Rogers, 1
Cir., 1970, 437 F.2d 102, 107, cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149; see
Perdido v. I.N.S., 5 Cir., 1969, 420 F.2d 1179, 1181. While resident aliens are entitled to the
full protection of this country's laws, until they obtain and maintain citizenship by
naturalization they are subject to the plenary authority of Congress' immigration and
naturalization powers. Carlson v. Landon, 342 U.S. 524, 534, 72 S.Ct. 525, 531, 96 L.Ed. 547
(1952). Thus, while most state classifications based on alienage are inherently suspect,
Graham v. Richardson, In re Griffiths, Sugarman v. Dougall, Takahashi v. Fish and Game
Comm'n, supra, the same is not true of all such federal classifications where Congress'
plenary authority in the field of immigration is involved.
14
Although Congress may not single out aliens for discriminatory treatment in matters not
related to the furtherance of its naturalization responsibilities, Ramos v. United States Civil
Service Comm'n, D.P.R., 1974,376 F.Supp. 361, 366 (three-judge court), Congress has the
power to define reasonable prerequisites to an alien's exercise of the rights and duties of
citizenship. We believe that preventing resident aliens from serving as jurors is rationally
related to Congress' legitimate power to define the extent of resident aliens' rights prior to
obtaining citizenship. Recently, the Supreme Court stated that a state may deny to aliens
the opportunity to participate in the electoral process because of a "State's historical power
to exclude aliens from participation in its democratic political institutions" and its
"constitutional responsibility for the establishment and operation of its own government,"
Sugarman v. Dougall, supra, 413 U.S. at 648, 93 S.Ct. at 2850-2851. If a state has the
inherent power to deprive aliens of the right to vote, Congress, with its broad powers in
dealing with aliens, may validly require citizenship as a prerequisite to service on federal
juries. Cf. Ramos v. United States Civil Service Comm'n, supra, 376 F.Supp. at 367 n. 9;
Perkins v. Smith, supra, 370 F.Supp. at 139 n. 1 (concurring opinion). Since Congress may
validly exclude aliens from jury service, appellant was deprived of no Sixth Amendment right
by the failure to have resident aliens included in the grand or petit jury venires.
15
Affirmed.
*
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir.,
1970, 431 F.2d 409, Part I
1
The defense does not contend that Marchand's presence in the attorney's office during the
conversations was a deliberate and surreptitious invasion by a government agent into the
legal camp of the defense. Cf. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d
374 (1966)
2

While the Government contended that the statements were not privileged, it also defended
inquiry into the conversation not touched on during cross-examination as "completion of an
area only partially explored on cross-examination." United States v. Koss, 2 Cir., 1974, 506
F.2d 1103, 1113
3
We assume, without deciding, that resident aliens of Cuban descent in Miami constitute an
"identifiable segment" or a "distinctive group" in that community. Cf. Taylor v. Louisiana,
supra
4 In Carter v. Jury Commission, 396 U.S. 320, 332, 90 S.Ct. 518, 525, 24 L.Ed.2d 549 (1970),
the Supreme Court in dictum commented that states are "free to confine the selection (of
jurors) to citizens . . . ."
United States v. Nobles, 422 U.S. 225 (1975)
United States v. Nobles
No. 74-634
Argued April 23, 1975
Decided June 23, 1975
422 U.S. 225
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Syllabus
During respondent's federal criminal trial, which resulted in a conviction, defense counsel
sought to impeach the credibility of key prosecution witnesses by testimony of a defense
investigator regarding statements previously obtained from the witnesses by the
investigator. When the investigator was called as a witness, the District Court stated that a
copy of the investigator's report, inspected and edited by the court in camera so as to excise
references to matters not relevant to such statements, would have to be submitted to the
prosecution for inspection at the completion of the investigator's testimony. When defense
counsel said he did not intend to produce the report, the court ruled that the investigator
could not testify about his interviews with the witnesses. The Court of Appeals, considering
such ruling to be reversible error, held that both the Fifth Amendment and Fed.Rule
Crim.Proc. 16 prohibited the disclosure condition imposed.
Held:
1. In a proper case, the prosecution, as well as the defense, can invoke the federal
judiciary's inherent power to require production of previously recorded witness statements
that facilitate full disclosure of all the relevant facts. Here, the investigator's report might
provide critical insight into the issues of credibility that the investigator's testimony would
raise, and hence was highly relevant to such issues. Pp. 422 U. S. 230-232.
2. The Fifth Amendment privilege against compulsory self-incrimination, being personal to
the defendant, does not extend to the testimony or statements of third parties called as
witnesses at trial. In this instance, the fact that the statements of third parties were elicited

by a defense investigator on respondent's behalf does not convert them into respondent's
personal communications, and requiring their production would in no sense compel
respondent to be a witness against himself or extort communications from him. Pp. 422 U. S.
233-234.
3. Rule 16, whose language and history both indicate that it addresses only pretrial
discovery, imposes no constraint on the
Page 422 U. S. 226
District Court's power to condition the impeachment testimony of respondent's witness on
the production of the relevant portions of his report. The fact that the Rule incorporates the
Jencks Act limitation shows no contrary intent, and does not convert the Rule into a general
limitation on the trial court's broad discretion as to evidentiary questions at trial. Pp. 422 U.
S. 234-236.
4. The qualified privilege derived from the attorney work product doctrine is not available to
prevent disclosure of the investigative report, since respondent, by electing to present the
investigator as a witness, waived the privilege with respect to matters covered in his
testimony. Pp. 422 U. S. 236-240.
5. It was within the District Court's discretion to assure that the jury would hear the
investigator's full testimony, rather than a truncated portion favorable to respondent, and
the court's ruling, contrary to respondent's contention, did not deprive him of the Sixth
Amendment rights to compulsory process and cross-examination. That Amendment does not
confer the right to present testimony free from the legitimate demands of the adversarial
system, and cannot be invoked as a justification for presenting what might have been a halftruth. Pp. 422 U. S. 240-241.
501 F.2d 146, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN,
STEWART, MARSHALL, and BLACKMUN, JJ., joined, and in parts II, III, and V of which WHITE
and REHNQUIST, JJ., joined. WHITE, J., filed a concurring opinion, in which REHNQUIST, J.,
joined, post, p. 422 U. S. 242. DOUGLAS, J., took no part in the consideration or decision of
the case.
Page 422 U. S. 227
MR. JUSTICE POWELL delivered the opinion of the Court.
In a criminal trial, defense counsel sought to impeach the credibility of key prosecution
witnesses by testimony of a defense investigator regarding statements previously obtained
from the witnesses by the investigator. The question presented here is whether, in these
circumstances, a federal trial court may compel the defense to reveal the relevant portions
of the investigator's report for the prosecution's use in cross-examining him. The United
States Court of Appeals for the Ninth Circuit concluded that it cannot. 501 F.2d 146. We
granted certiorari, 419 U.S. 1120 (1975), and now reverse.
I
Respondent was tried and convicted on charges arising from an armed robbery of a federally
insured bank. The only significant evidence linking him to the crime was the identification
testimony of two witnesses, a bank teller and a salesman who was in the bank during the
robbery. [Footnote 1] Respondent offered an alibi but, as the Court of Appeals recognized,

501 F.2d at 150, his strongest defense centered around attempts to discredit these
eyewitnesses. Defense efforts to impeach them gave rise to the events that led to this
decision.
In the course of preparing respondent's defense, an investigator for the defense interviewed
both witnesses and preserved the essence of those conversations in a written report. When
the witnesses testified for the prosecution, respondent's counsel relied on the report in
conducting their cross-examination. Counsel asked the bank
Page 422 U. S. 228
teller whether he recalled having told the investigator that he had seen only the back of the
man he identified as respondent. The witness replied that he did not remember making such
a statement. He was allowed, despite defense counsel's initial objection, to refresh his
recollection by referring to a portion of the investigator's report. The prosecutor also was
allowed to see briefly the relevant portion of the report. [Footnote 2] The witness thereafter
testified that, although the report indicated that he told the investigator he had seen only
respondent's back, he, in fact, had seen more than that, and continued to insist that
respondent was the bank robber.
The other witness acknowledged on cross-examination that he too had spoken to the
defense investigator. Respondent's counsel twice inquired whether he told the investigator
that "all blacks looked alike" to him, and in each instance the witness denied having made
such a statement. The prosecution again sought inspection of the relevant portion of the
investigator's report, and respondent's counsel again objected. The court declined to order
disclosure at that time, but ruled that it would be required if the investigator testified as to
the witnesses' alleged statements from the witness stand. [Footnote 3] The
Page 422 U. S. 229
court further advised that it would examine the investigator's report in camera, and would
excise all reference to matters not relevant to the precise statements at issue.
After the prosecution completed its case, respondent called the investigator as a defense
witness. The court reiterated that a copy of the report, inspected and edited in camera,
would have to be submitted to Government counsel at the completion of the investigator's
impeachment testimony. When respondent's counsel stated that he did not intend to
produce the report, the court ruled that the investigator would not be allowed to testify
about his interviews with the witnesses. [Footnote 4]
The Court of Appeals for the Ninth Circuit, while acknowledging that the trial court's ruling
constituted a "very limited and seemingly judicious restriction," 501 F.2d at 151,
nevertheless considered it reversible
Page 422 U. S. 230
error. Citing United States v. Wright, 160 U.S.App.D.C. 57, 68, 489 F.2d 1181, 1192 (1973),
the court found that the Fifth Amendment prohibited the disclosure condition imposed in this
case. The court further held that Fed.Rule Crim.Proc. 16, while framed exclusively in terms of
pretrial discovery, precluded prosecutorial discovery at trial as well. 501 F.2d at 157; accord,
United States v. Wright, supra at 66-67, 489 F.2d at 1190-1191. In each respect, we think the
court erred.
II

The dual aim of our criminal justice system is "that guilt shall not escape or innocence
suffer," Berger v. United States, 295 U. S. 78, 295 U. S. 88 (1935). To this end, we have
placed our confidence in the adversary system, entrusting to it the primary responsibility for
developing relevant facts on which a determination of guilt or innocence can be made. See
United States v. Nixon, 418 U. S. 683, 418 U. S. 709 (1974); Williams v. Florida, 399 U. S. 78,
399 U. S. 82 (1970); Elkins v. United States, 364 U. S. 206, 364 U. S. 234 (1960) (Frankfurter,
J., dissenting).
While the adversary system depends primarily on the parties for the presentation and
exploration of relevant facts, the judiciary is not limited to the role of a referee or supervisor.
Its compulsory processes stand available to require the presentation of evidence in court or
before a grand jury. United States v. Nixon, supra; Kastigar v. United States, 406 U. S. 441,
406 U. S. 443-444 (1972); Murphy v. Waterfront Comm'n, 378 U. S. 52, 378 U. S. 93-9,4
(1964) (WHITE, J., concurring). As we recently observed in United States v. Nixon, supra at
418 U. S. 709:
"We have elected to employ an adversary system of criminal justice in which the parties
contest all issues before a court of law. The need to develop all relevant facts in the
adversary system is both
Page 422 U. S. 231
fundamental and comprehensive. The ends of criminal justice would be defeated if
judgments were to be founded on a partial or speculative presentation of the facts. The very
integrity of the judicial system and public confidence in the system depend on full disclosure
of all the facts, within the framework of the rules of evidence. To ensure that justice is done,
it is imperative to the function of courts that compulsory process be available for the
production of evidence needed either by the prosecution or by the defense."
Decisions of this Court repeatedly have recognized the federal judiciary's inherent power to
require the prosecution to produce the previously recorded statements of its witnesses so
that the defense may get the full benefit of cross-examination and the truthfinding process
may be enhanced. See, e.g., Jencks v. United States, 353 U. S. 657 (1957); [Footnote 5]
Gordon v. United States, 34 U. S. 414 (1953); Goldman v. United States, 316 U. S. 129
(1942); Palermo v. United States, 360 U. S. 343, 360 U. S. 361 (1959) (BRENNAN, J.,
concurring in result). At issue here is whether, in a proper case, the prosecution can call
upon that same power for production of witness statements that facilitate "full disclosure of
all the [relevant] facts." United States v. Nixon, supra, at 418 U. S. 709.
In this case, the defense proposed to call its investigator to impeach the identification
testimony of the prosecution's eyewitnesses. It was evident from cross-examination that the
investigator would testify that each witness' recollection of the appearance of the individual
identified as respondent was considerably less clear at
Page 422 U. S. 232
an earlier time than it was at trial. It also appeared that the investigator and one witness
differed even as to what the witness told him during the interview. The investigator's
contemporaneous report might provide critical insight into the issues of credibility that the
investigator's testimony would raise. It could assist the jury in determining the extent to
which the investigator's testimony actually discredited the prosecution's witnesses. If, for
example, the report failed to mention the purported statement of one witness that "all
blacks looked alike," the jury might disregard the investigator's version altogether. On the
other hand, if this statement appeared in the contemporaneously recorded report, it would

tend strongly to corroborate the investigator's version of the interview, and to diminish
substantially the reliability of that witness' identification. [Footnote 6]
It was therefore apparent to the trial judge that the investigator's report was highly relevant
to the critical issue of credibility. In this context, production of the report might substantially
enhance "the search for truth," Williams v. Florida, 399 U.S. at 399 U. S. 82. We must
determine whether compelling its production was precluded by some privilege available to
the defense in the circumstances of this case.
Page 422 U. S. 233
III
A
The Court of Appeals concluded that the Fifth Amendment renders criminal discovery
"basically a one-way street." 501 F.2d at 154. Like many generalizations in constitutional
law, this one is too broad. The relationship between the accused's Fifth Amendment rights
and the prosecution's ability to discover materials at trial must be identified in a more
discriminating manner.
The Fifth Amendment privilege against compulsory self-incrimination is an "intimate and
personal one," which protects "a private inner sanctum of individual feeling and thought and
proscribes state intrusion to extract self-condemnation." Couch v. United States, 409 U. S.
322, 409 U. S. 327 (1973); see also Bellis v. United States, 417 U. S. 85, 417 U. S. 90-91
(1974); United States v. White, 322 U. S. 694, 322 U. S. 698 (1944). As we noted in Couch,
supra, at 409 U. S. 328, the "privilege is a personal privilege: it adheres basically to the
person, not to information that may incriminate him." [Footnote 7]
In this instance, disclosure of the relevant portions of the defense investigator's report would
not impinge on the fundamental values protected by the Fifth Amendment. The court's order
was limited to statements
Page 422 U. S. 234
allegedly made by third parties who were available as witnesses to both the prosecution and
the defense. Respondent did not prepare the report, and there is no suggestion that the
portions subject to the disclosure order reflected any information that he conveyed to the
investigator. The fact that these statements of third parties were elicited by a defense
investigator on respondent's behalf does not convert them into respondent's personal
communications. Requiring their production from the investigator therefore would not in any
sense compel respondent to be a witness against himself or extort communications from
him.
We thus conclude that the Fifth Amendment privilege against compulsory self-incrimination,
being personal to the defendant, does not extend to the testimony or statements of third
parties called as witnesses at trial. The Court of Appeals' reliance on this constitutional
guarantee as a bar to the disclosure here ordered was misplaced.
B
The Court of Appeals also held that Fed.Rule Crim.Proc. 16 deprived the trial court of the
power to order disclosure of the relevant portions of the investigator's report. [Footnote 8]
Acknowledging that the Rule appears to control pretrial discovery only, the court
nonetheless determined

Page 422 U. S. 235

that its reference to the Jencks Act, 18 U.S.C. 3500, signaled an intention that Rule 16
should control trial practice as well. We do not agree.
Both the language and history of Rule 16 indicate that it addresses only pretrial discovery.
Rule 16(f) requires that a motion for discovery be filed "within 10 days after arraignment or .
. . such reasonable later time as the court may permit," and further commands that it
include all relief sought by the movant. When this provision is viewed in light of the Advisory
Committee's admonition that it is designed to encourage promptness in filing and to enable
the district court to avoid unnecessary delay or multiplication of motions, see Advisory
Committee's Notes on Rule 16, 18 U.S.C.App. p. 4494, the pretrial focus of the Rule becomes
apparent. The Government's right of discovery arises only after the defendant has
successfully sought discovery under subsections (a)(2) or (b), and is confined to matters
"which the defendant intends to produce at the trial." Fed.Rule Crim.Proc. 16(c). This hardly
suggests any intention that the Rule would limit the court's power to order production once
trial has begun. [Footnote 9] Finally, the Advisory Committee's Notes emphasize its pretrial
character. Those notes repeatedly characterize the Rule as a provision governing pretrial
disclosure, never once suggesting that it was intended to constrict a district court's
Page 422 U. S. 236
control over evidentiary questions arising at trial. 18 U.S.C.App. pp. 4493-4495.
The incorporation of the Jencks Act limitation on the pretrial right of discovery provided by
Rule 16 does not express a contrary intent. It only restricts the defendant's right of pretrial
discovery in a manner that reconciles that provision with the Jencks Act limitation on the trial
court's discretion over evidentiary matters. It certainly does not convert Rule 16 into a
general limitation on the trial court's broad discretion as to evidentiary questions at trial. Cf.
Giles v. Maryland, 386 U. S. 66, 386 U. S. 101 (1967) (Fortas, J., concurring in judgment).
[Footnote 10] We conclude, therefore, that Rule 16 imposes no constraint on the District
Court's power to condition the impeachment testimony of respondent's witness on the
production of the relevant portions of his investigative report. In extending the Rule into the
trial context, the Court of Appeals erred.
IV
Respondent contends further that the work product doctrine exempts the investigator's
report from disclosure at trial. While we agree that this doctrine applies to criminal litigation
as well as civil, we find its protection unavailable in this case.
The work product doctrine, recognized by this Court in Hickman v. Taylor, 329 U. S. 495
(1947), reflects the strong "public policy underlying the orderly prosecution
Page 422 U. S. 237
and defense of legal claims." Id. at 329 U. S. 510; see also id. at 329 U. S. 514-515 (Jackson,
J., concurring). As the Court there observed:
"Historically, a lawyer is an officer of the court, and is bound to work for the advancement of
justice while faithfully protecting the rightful interests of his clients. In performing his various
duties, however, it is essential that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's
case demands that he assemble information, sift what he considers to be the relevant from

the irrelevant facts, prepare his legal theories, and plan his strategy without undue and
needless interference. That is the historical and the necessary way in which lawyers act
within the framework of our system of jurisprudence to promote justice and to protect their
clients' interests. This work is reflected, of course, in interviews, statements, memoranda,
correspondence, briefs, mental impressions, personal beliefs, and countless other tangible
and intangible ways -- aptly though roughly termed by the Circuit Court of Appeals in this
case as the 'work product of the lawyer.' Were such materials open to opposing counsel on
mere demand, much of what is now put down in writing would remain unwritten. An
attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and
sharp practices would inevitably develop in the giving of legal advice and in the preparation
of cases for trial. The effect on the legal profession would be demoralizing. And the interests
of the clients and the cause of justice would be poorly served."
Id. at 329 U. S. 510-511. The Court therefore recognized a qualified privilege for
Page 422 U. S. 238
certain materials prepared by an attorney "acting for his client in anticipation of litigation."
Id. at 329 U. S. 508. [Footnote 11] See generally 4 J. Moore, Federal Practice

PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE SANDIGANBAYAN,

MANSUETO V. HONRADA, CEFERINO S. PAREDES, JR. and GENEROSO S. SANSAET,
respondents.
DECISION
REGALADO, J.:
Through the special civil action for certiorari at bar, petitioner seeks the annulment of the
resolution of respondent Sandiganbayan, promulgated on December 22, 1993, which denied
petitioners motion for the discharge of respondent Generoso S. Sansaet to be utilized as a

state witness, and its resolution of March 7, 1994 denying the motion for reconsideration of
its preceding disposition.[1]
The records show that during the dates material to this case, respondent Honrada was the
Clerk of Court and Acting Stenographer of the First Municipal Circuit Trial Court, San
Francisco-Bunawan-Rosario in Agusan del Sur. Respondent Paredes was successively the
Provincial Attorney of Agusan del Sur, then Governor of the same province, and is at present
a Congressman. Respondent Sansaet was a practicing attorney who served as counsel for
Paredes in several instances pertinent to the criminal charges involved in the present
recourse.
The same records also represent that sometime in 1976, respondent Paredes applied for a
free patent over Lot No. 3097-A, Pls-67 of the Rosario Public Land Subdivision Survey. His
application was approved and, pursuant to a free patent granted to him, an original
certificate of title was issued in his favor for that lot which is situated in the poblacion of San
Francisco, Agusan del Sur.
However, in 1985, the Director of Lands filed an action[2] for the cancellation of respondent
Paredes patent and certificate of title since the land had been designated and reserved as a
school site in the aforementioned subdivision survey. The trial court rendered judgment[3]
nullifying said patent and title after finding that respondent Paredes had obtained the same
through fraudulent misrepresentations in his application. Pertinently, respondent Sansaet
served as counsel of Paredes in that civil case.[4]
Consequent to the foregoing judgment of the trial court, upon the subsequent complaint of
the Sangguniang Bayan and the preliminary investigation conducted thereon, an information
for perjury[5] was filed against respondent Paredes in the Municipal Circuit Trial Court.[6] On
November 27, 1985, the Provincial Fiscal was, however, directed by the Deputy Minister of
Justice to move for the dismissal of the case on the ground inter alia of prescription, hence
the proceedings were terminated.[7] In this criminal case, respondent Paredes was likewise
represented by respondent Sansaet as counsel.
Nonetheless, respondent* Paredes was thereafter haled before the Tanodbayan for
preliminary investigation on the charge that, by using his former position as Provincial
Attorney to influence and induce the Bureau of Lands officials to favorably act on his
application for free patent, he had violated Section 3(a) of Republic Act No. 3019, as
amended. For the third time, respondent Sansaet was Paredes counsel of record therein.
On August 29, 1988, the Tanodbayan, issued a resolution[8] recommending the criminal
prosecution of respondent Paredes. Atty. Sansaet, as counsel for his aforenamed corespondent, moved for reconsideration and, because of its legal significance in this case, we
quote some of his allegations in that motion:
x x x respondent had been charged already by the complainants before the Municipal Circuit
Court of San Francisco, Agusan del Sur, went to jail on detention in 1984 under the same set
of facts and the same evidence x x x but said case after arraignment, was ordered dismissed
by the court upon recommendation of the Department of Justice. Copy of the dismissal
order, certificate of arraignment and the recommendation of the Department of Justice are
hereto attached for ready reference; thus the filing of this case will be a case of double
jeopardy for respondent herein x x x.[9] (Italics supplied.)
A criminal case was subsequently filed with the Sandiganbayan[10] charging respondent
Paredes with a violation of Section 3(a) of Republic Act No. 3019, as amended. However, a
motion to quash filed by the defense was later granted in respondent courts resolution of
August 1, 1991[11] and the case was dismissed on the ground of prescription.

On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated the perjury and graft
charges against respondent Paredes, sent a letter to the Ombudsman seeking the
investigation of the three respondents herein for falsification of public documents.[12] He
claimed that respondent Honrada, in conspiracy with his herein co-respondents, simulated
and certified as true copies certain documents purporting to be a notice of arraignment,
dated July 1, 1985, and transcripts of stenographic notes supposedly taken during the
arraignment of Paredes on the perjury charge.[13] These falsified documents were annexed
to respondent Paredes motion for reconsideration of the Tanodbayan resolution for the filing
of a graft charge against him, in order to support his contention that the same would
constitute double jeopardy.
In support of his claim, Gelacio attached to his letter a certification that no notice of
arraignment was ever received by the Office of the Provincial Fiscal of Agusan del Sur in
connection with that perjury case; and a certification of Presiding Judge Ciriaco Ario that said
perjury case in his court did not reach the arraignment stage since action thereon was
suspended pending the review of the case by the Department of Justice.[14]
Respondents filed their respective counter-affidavits, but Sansaet subsequently discarded
and repudiated the submissions he had made in his counter-affidavit. In a so-called Affidavit
of Explanations and Rectifications,[15] respondent Sansaet revealed that Paredes contrived
to have the graft case under preliminary investigation dismissed on the ground of double
jeopardy by making it that the perjury case had been dismissed by the trial court after he
had been arraigned therein.
For that purpose, the documents which were later filed by respondent Sansaet in the
preliminary investigation were prepared and falsified by his co-respondents in this case in
the house of respondent Paredes. To evade responsibility for his own participation in the
scheme, he claimed that he did so upon the instigation and inducement of respondent
Paredes. This was intended to pave the way for his discharge as a government witness in the
consolidated cases, as in fact a motion therefor was filed by the prosecution pursuant to
their agreement.
Withal, in a resolution[16] dated February 24, 1992, the Ombudsman approved the filing of
falsification charges against all the herein private respondents. The proposal for the
discharge of respondent Sansaet as a state witness was rejected by the Ombudsman on this
evaluative legal position:
x x x Taking his explanation, it is difficult to believe that a lawyer of his stature, in the
absence of deliberate intent to conspire, would be unwittingly induced by another to commit
a crime. As counsel for the accused in those criminal cases, Atty. Sansaet had control over
the case theory and the evidence which the defense was going to present. Moreover, the
testimony or confession of Atty. Sansaet falls under the mantle of privileged communication
between the lawyer and his client which may be objected to, if presented in the trial.
The Ombudsman refused to reconsider that resolution[17] and, ostensibly to forestall any
further controversy, he decided to file separate informations for falsification of public
documents against each of the herein respondents. Thus, three criminal cases,[18] each of
which named one of the three private respondents here as the accused therein, were filed in
the graft court. However, the same were consolidated for joint trial in the Second Division of
the Sandiganbayan.
As stated at the outset, a motion was filed by the People on July 27, 1993 for the discharge
of respondent Sansaet as a state witness. It was submitted that all the requisites therefor, as
provided in Section 9, Rule 119 of the Rules of Court, were satisfied insofar as respondent

Sansaet was concerned. The basic postulate was that, except for the eyewitness testimony
of respondent Sansaet, there was no other direct evidence to prove the confabulated
falsification of documents by respondents Honrada and Paredes.
Unfortunately for the prosecution, respondent Sandiganbayan, hewing to the theory of the
attorney-client privilege adverted to by the Ombudsman and invoked by the two other
private respondents in their opposition to the prosecutions motion, resolved to deny the
desired discharge on this ratiocination:
From the evidence adduced, the opposition was able to establish that client and lawyer
relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during and after
the period alleged in the information. In view of such relationship, the facts surrounding the
case, and other confidential matter must have been disclosed by accused Paredes, as client,
to accused Sansaet, as his lawyer in his professional capacity. Therefore, the testimony of
Atty. Sansaet on the facts surrounding the offense charged in the information is privileged.
[19]
Reconsideration of said resolution having been likewise denied,[20] the controversy was
elevated to this Court by the prosecution in an original action for the issuance of the
extraordinary writ of certiorari against respondent Sandiganbayan.
The principal issues on which the resolution of the petition at bar actually turns are therefore
(1) whether or not the projected testimony of respondent Sansaet, as proposed state
witness, is barred by the attorney-client privilege; and (2) whether or not, as a consequence
thereof, he is eligible for discharge to testify as a particeps criminis.
I
As already stated, respondent Sandiganbayan ruled that due to the lawyer-client relationship
which existed between herein respondents Paredes and Sansaet during the relevant periods,
the facts surrounding the case and other confidential matters must have been disclosed by
respondent Paredes, as client, to respondent Sansaet, as his lawyer. Accordingly, it found no
reason to discuss it further since Atty. Sansaet cannot be presented as a witness against
accused Ceferino S. Paredes, Jr. without the latters consent.[21]
The Court is of a contrary persuasion. The attorney-client privilege cannot apply in these
cases, as the facts thereof and the actuations of both respondents therein constitute an
exception to the rule. For a clearer understanding of that evidential rule, we will first sweep
aside some distracting mental cobwebs in these cases.
1. It may correctly be assumed that there was a confidential communication made by
Paredes to Sansaet in connection with Criminal Cases Nos. 17791-93 for falsification before
respondent court, and this may reasonably be expected since Paredes was the accused and
Sansaet his counsel therein. Indeed, the fact that Sansaet was called to witness the
preparation of the falsified documents by Paredes and Honrada was as eloquent a
communication, if not more, than verbal statements being made to him by Paredes as to the
fact and purpose of such falsification. It is significant that the evidentiary rule on this point
has always referred to any communication, without distinction or qualification.[22]
In the American jurisdiction from which our present evidential rule was taken, there is no
particular mode by which a confidential communication shall be made by a client to his
attorney. The privilege is not confined to verbal or written communications made by the
client to his attorney but extends as well to information communicated by the client to the
attorney by other means.[23]

Nor can it be pretended that during the entire process, considering their past and existing
relations as counsel and client and, further, in view of the purpose for which such falsified
documents were prepared, no word at all passed between Paredes and Sansaet on the
subject matter of that criminal act. The clincher for this conclusion is the undisputed fact
that said documents were thereafter filed by Sansaet in behalf of Paredes as annexes to the
motion for reconsideration in the preliminary investigation of the graft case before the
Tanodbayan.[24] Also, the acts and words of the parties during the period when the
documents were being falsified were necessarily confidential since Paredes would not have
invited Sansaet to his house and allowed him to witness the same except under conditions
of secrecy and confidence.
2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the
criminal act for which the latter stands charged, a distinction must be made between
confidential communications relating to past crimes already committed, and future crimes
intended to be committed, by the client. Corollarily, it is admitted that the announced
intention of a client to commit a crime is not included within the confidences which his
attorney is bound to respect. Respondent court appears, however, to believe that in the
instant case it is dealing with a past crime, and that respondent Sansaet is set to testify on
alleged criminal acts of respondents Paredes and Honrada that have already been
committed and consummated.
The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. It
is true that by now, insofar as the falsifications to be testified to in respondent court are
concerned, those crimes were necessarily committed in the past. But for the application of
the attorney-client privilege, however, the period to be considered is the date when the
privileged communication was made by the client to the attorney in relation to either a
crime committed in the past or with respect to a crime intended to be committed in the
future. In other words, if the client seeks his lawyers advice with respect to a crime that the
former has theretofore committed, he is given the protection of a virtual confessional seal
which the attorney-client privilege declares cannot be broken by the attorney without the
clients consent. The same privileged confidentiality, however, does not attach with regard to
a crime which a client intends to commit thereafter or in the future and for purposes of
which he seeks the lawyers advice.
Statements and communications regarding the commission of a crime already committed,
made by a party who committed it, to an attorney, consulted as such, are privileged
communications. Contrarily, the unbroken stream of judicial dicta is to the effect that
communications between attorney and client having to do with the clients contemplated
criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges
ordinarily existing in reference to communications between attorney and client.[25]
(Emphases supplied.)
3. In the present cases, the testimony sought to be elicited from Sansaet as state witness
are the communications made to him by physical acts and/or accompanying words of
Paredes at the time he and Honrada, either with the active or passive participation of
Sansaet, were about to falsify, or in the process of falsifying, the documents which were later
filed in the Tanodbayan by Sansaet and culminated in the criminal charges now pending in
respondent Sandiganbayan. Clearly, therefore, the confidential communications thus made
by Paredes to Sansaet were for purposes of and in reference to the crime of falsification
which had not yet been committed in the past by Paredes but which he, in confederacy with
his present co-respondents, later committed. Having been made for purposes of a future
offense, those communications are outside the pale of the attorney-client privilege.
4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of
falsification which he, Paredes and Honrada concocted and foisted upon the authorities. It is

well settled that in order that a communication between a lawyer and his client may be
privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of
an unlawful purpose prevents the privilege from attaching.[26] In fact, it has also been
pointed out to the Court that the prosecution of the honorable relation of attorney and client
will not be permitted under the guise of privilege, and every communication made to an
attorney by a client for a criminal purpose is a conspiracy or attempt at a conspiracy which
is not only lawful to divulge, but which the attorney under certain circumstances may be
bound to disclose at once in the interest of justice.[27]
It is evident, therefore, that it was error for respondent Sandiganbayan to insist that such
unlawful communications intended for an illegal purpose contrived by conspirators are
nonetheless covered by the so-called mantle of privilege. To prevent a conniving counsel
from revealing the genesis of a crime which was later committed pursuant to a conspiracy,
because of the objection thereto of his conspiring client, would be one of the worst
travesties in the rules of evidence and practice in the noble profession of law.
II
On the foregoing premises, we now proceed to the consequential inquiry as to whether
respondent Sansaet qualifies, as a particeps criminis, for discharge from the criminal
prosecution in order to testify for the State. Parenthetically, respondent court, having arrived
at a contrary conclusion on the preceding issue, did not pass upon this second aspect and
the relief sought by the prosecution which are now submitted for our resolution in the
petition at bar. We shall, however, first dispose likewise of some ancillary questions requiring
preludial clarification.
1. The fact that respondent Sandiganbayan did not fully pass upon the query as to whether
or not respondent Sansaet was qualified to be a state witness need not prevent this Court
from resolving that issue as prayed for by petitioner. Where the determinative facts and
evidence have been submitted to this Court such that it is in a position to finally resolve the
dispute, it will be in the pursuance of the ends of justice and the expeditious administration
thereof to resolve the case on the merits, instead of remanding it to the trial court.[28]
2. A reservation is raised over the fact that the three private respondents here stand
charged in three separate informations. It will be recalled that in its resolution of February
24, 1992, the Ombudsman recommended the filing of criminal charges for falsification of
public documents against all the respondents herein. That resolution was affirmed but,
reportedly in order to obviate further controversy, one information was filed against each of
the three respondents here, resulting in three informations for the same acts of falsification.
This technicality was, however, sufficiently explained away during the deliberations in this
case by the following discussion thereof by Mr. Justice Davide, to wit:
Assuming no substantive impediment exists to block Sansaets discharge as state witness, he
can, nevertheless, be discharged even if indicted under a separate information. I suppose
the three cases were consolidated for joint trial since they were all raffled to the Second
Division of the Sandiganbayan. Section 2, Rule XV of the Revised Rules of the
Sandiganbayan allows consolidation in only one Division of cases arising from the same
incident or series of incidents, or involving common questions of law and fact. Accordingly,
for all legal intents and purposes, Sansaet stood as co-accused and he could be discharged
as state witness. It is of no moment that he was charged separately from his co-accused.
While Section 9 of Rule 119 of the 1985 Rules of Criminal Procedure uses the word jointly,
which was absent in the old provision, the consolidated and joint trial has the effect of
making the three accused co-accused or joint defendants, especially considering that they

are charged for the same offense. In criminal law, persons indicted for the same offense and
tried together are called joint defendants.
As likewise submitted therefor by Mr. Justice Francisco along the same vein, there having
been a consolidation of the three cases, the several actions lost their separate identities and
became a single action in which a single judgment is rendered, the same as if the different
causes of action involved had originally been joined in a single action.[29]
Indeed, the former provision of the Rules referring to the situation (w)hen two or more
persons are charged with the commission of a certain offense was too broad and indefinite;
hence the word joint was added to indicate the identity of the charge and the fact that the
accused are all together charged therewith substantially in the same manner in point of
commission and time. The word joint means common to two or more, as involving the united
activity of two or more, or done or produced by two or more working together, or shared by
or affecting two or more.[30] Had it been intended that all the accused should always be
indicted in one and the same information, the Rules could have said so with facility, but it
did not so require in consideration of the circumstances obtaining in the present case and
the problems that may arise from amending the information. After all, the purpose of the
Rule can be achieved by consolidation of the cases as an alternative mode.
2. We have earlier held that Sansaet was a conspirator in the crime of falsification, and the
rule is that since in a conspiracy the act of one is the act of all, the same penalty shall be
imposed on all members of the conspiracy. Now, one of the requirements for a state witness
is that he does not appear to be the most guilty.[31] not that he must be the least guilty[32]
as is so often erroneously framed or submitted. The query would then be whether an
accused who was held guilty by reason of membership in a conspiracy is eligible to be a
state witness.
To be sure, in People vs. Ramirez, et al.[33] we find this obiter:
It appears that Apolonio Bagispas was the real mastermind. It is believable that he
persuaded the others to rob Paterno, not to kill him for a promised fee. Although he did not
actually commit any of the stabbings, it was a mistake to discharge Bagispas as a state
witness. All the perpetrators of the offense, including him, were bound in a conspiracy that
made them equally guilty.
However, prior thereto, in People vs. Roxas, et al.,[34] two conspirators charged with five
others in three separate informations for multiple murder were discharged and used as state
witnesses against their confederates. Subsequent thereto, in Lugtu, et al. vs. Court of
Appeals, et al.,[35] one of the co-conspirators was discharged from the information charging
him and two others with the crime of estafa. The trial court found that he was not the most
guilty as, being a poor and ignorant man, he was easily convinced by his two co-accused to
open the account with the bank and which led to the commission of the crime.
On appeal, this Court held that the finding of respondent appellate court that Lugtu was just
as guilty as his co-accused, and should not be discharged as he did not appear to be not the
most guilty, is untenable. In other words, the Court took into account the gravity or nature of
the acts committed by the accused to be discharged compared to those of his co-accused,
and not merely the fact that in law the same or equal penalty is imposable on all of them.
Eventually, what was just somehow assumed but not explicitly articulated found expression
in People vs. Ocimar, et al.,[36] which we quote in extenso:
Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the
discharge of a co-accused to become a state witness. He argues that no accused in a

conspiracy can lawfully be discharged and utilized as a state witness, for not one of them
could satisfy the requisite of appearing not to be the most guilty. Appellant asserts that since
accused Bermudez was part of the conspiracy, he is equally guilty as the others.
We do not agree. First, there is absolute necessity for the testimony of Bermudez. For,
despite the presentation of four (4) other witnesses, none of them could positively identify
the accused except Bermudez who was one of those who pulled the highway heist which
resulted not only in the loss of cash, jewelry and other valuables, but even the life of Capt.
Caeba, Jr. It was in fact the testimony of Bermudez that clinched the case for the
prosecution. Second, without his testimony, no other direct evidence was available for the
prosecution to prove the elements of the crime. Third, his testimony could be, as indeed it
was, substantially corroborated in its material points as indicated by the trial court in its
well-reasoned decision. Fourth, he does not appear to be the most guilty. As the evidence
reveals, he was only invited to a drinking party without having any prior knowledge of the
plot to stage a highway robbery. But even assuming that he later became part of the
conspiracy, he does not appear to be the most guilty. What the law prohibits is that the most
guilty will be set free while his co-accused who are less guilty will be sent to jail. And by
most guilty we mean the highest degree of culpability in terms of participation in the
commission of the offense and not necessarily the severity of the penalty imposed. While all
the accused may be given the same penalty by reason of conspiracy, yet one may be
considered least guilty if We take into account his degree of participation in the perpetration
of the offense. Fifth, there is no evidence that he has at any time been convicted of any
offense involving moral turpitude.
xxx
Thus, We agree with the observations of the Solicitor General that the rule on the discharge
of an accused to be utilized as state witness clearly looks at his actual and individual
participation in the commission of the crime, which may or may not have been perpetrated
in conspiracy with the other accused. Since Bermudez was not individually responsible for
the killing committed on the occasion of the robbery except by reason of conspiracy, it
cannot be said then that Bermudez appears to be the most guilty. Hence, his discharge to be
a witness for the government is clearly warranted. (Italics ours.)
The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal
offense is based on the concurrence of criminal intent in their minds and translated into
concerted physical action although of varying acts or degrees of depravity. Since the Revised
Penal Code is based on the classical school of thought, it is the identity of the mens rea
which is considered the predominant consideration and, therefore, warrants the imposition
of the same penalty on the consequential theory that the act of one is thereby the act of all.
Also, this is an affair of substantive law which should not be equated with the procedural rule
on the discharge of particeps criminis. This adjective device is based on other
considerations, such as the need for giving immunity to one of them in order that not all
shall escape, and the judicial experience that the candid admission of an accused regarding
his participation is a guaranty that he will testify truthfully. For those reasons, the Rules
provide for certain qualifying criteria which, again, are based on judicial experience distilled
into a judgmental policy.
III
The Court is reasonably convinced, and so holds, that the other requisites for the discharge
of respondent Sansaet as a state witness are present and should have been favorably
appreciated by the Sandiganbayan.

Respondent Sansaet is the only cooperative eyewitness to the actual commission of the
falsification charged in the criminal cases pending before respondent court, and the
prosecution is faced with the formidable task of establishing the guilt of the two other corespondents who steadfastly deny the charge and stoutly protest their innocence. There is
thus no other direct evidence available for the prosecution of the case, hence there is
absolute necessity for the testimony of Sansaet whose discharge is sought precisely for that
purpose. Said respondent has indicated his conformity thereto and has, for the purposes
required by the Rules, detailed the substance of his projected testimony in his Affidavit of
Explanations and Rectifications.
His testimony can be substantially corroborated on its material points by reputable
witnesses, identified in the basic petition with a digest of their prospective testimonies, as
follows: Judge Ciriaco C. Ario, Municipal Circuit Trial Court in San Francisco, Agusan del Sur;
Provincial Prosecutor and Deputized Ombudsman Prosecutor Claudio A. Nistal; Teofilo
Gelacio, private complainant who initiated the criminal cases through his letter-complaint;
Alberto Juvilan of the Sangguniang Bayan of San Fernando, Agusan del Sur, who participated
in the resolution asking their Provincial Governor to file the appropriate case against
respondent Paredes, and Francisco Macalit, who obtained the certification of nonarraignment from Judge Ario.
On the final requirement of the Rules, it does not appear that respondent Sansaet has at any
time been convicted of any offense involving moral turpitude. Thus, with the confluence of
all the requirements for the discharge of this respondent, both the Special Prosecutor and
the Solicitor General strongly urge and propose that he be allowed to testify as a state
witness.
This Court is not unaware of the doctrinal rule that, on this procedural aspect, the
prosecution may propose but it is for the trial court, in the exercise of its sound discretion, to
determine the merits of the proposal and make the corresponding disposition. It must be
emphasized, however, that such discretion should have been exercised, and the disposition
taken on a holistic view of all the facts and issues herein discussed, and not merely on the
sole issue of the applicability of the attorney-client privilege.
This change of heart and direction respondent Sandiganbayan eventually assumed, after the
retirement of two members of its Second Division [37]and the reconstitution thereof. In an
inversely anticlimactic Manifestation and Comment [38] dated June 14, 1995, as required by
this Court in its resolution on December 5, 1994, the chairman and new members thereof
[39] declared:
4) That the questioned Resolutions of December 22, 1993 and March 7, 1994 upon which the
Petition for Certiorari filed by the prosecution are based, was penned by Associate Justice
Narciso T. Atienza and concurred in by the undersigned and Associate Justice Augusto M.
Amores;
5) That while the legal issues involved had been already discussed and passed upon by the
Second Division in the aforesaid Resolution, however, after going over the arguments
submitted by the Solicitor-General and re-assessing Our position on the matter, We
respectfully beg leave of the Honorable Supreme Court to manifest that We are amenable to
setting aside the questioned Resolutions and to grant the prosecutions motion to discharge
accused Generoso Sansaet as state witness, upon authority of the Honorable Supreme Court
for the issuance of the proper Resolution to that effect within fifteen (15) days from notice
thereof.
WHEREFORE, the writ of certiorari prayed for is hereby granted SETTING ASIDE the
impugned resolutions and ORDERING that the present reliefs sought in these cases by
petitioner be allowed and given due course by respondent Sandiganbayan.

NELLY LIM, Petitioner, v. THE COURT OF APPEALS, HON. MANUEL D. VICTORIO, as

Presiding Judge of RTC-Rosales, Pangasinan, Branch 53, and JUAN SIM,
Respondents.
Quisumbing, Torres & Evangelista for Petitioner.
Bince, Oficiana & Dancel for Private Respondent.
SYLLABUS
1.
REMEDIAL LAW; ACTIONS; EVIDENCE; PRIVILEGED COMMUNICATIONS; PHYSICIANPATIENT PRIVILEGE; RATIONAL BEHIND THE RULE. This rule on the physician-patient
privilege is intended to facilitate and make safe full and confidential disclosure by the
patient to the physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and publication on the witness
stand, to the end that the physician may form a correct opinion, and be enabled safely and
efficaciously to treat his patient. It rests in public policy and is for the general interest of the
community.
2.
ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. Since the object of the privilege is to
protect the patient, it may be waived if no timely objection is made to the physicians
testimony.
3.
ID.; ID.; ID.; ID.; ID.; REQUISITES. In order that the privilege may be successfully
claimed, the following requisites must concur: "1. the privilege is claimed in a civil case; 2.
the person against whom the privilege is claimed is one duly authorized to practice
medicine, surgery or obstetrics; 3. such person acquired the information while he was
attending to the patient in his professional capacity; 4. the information was necessary to
enable him to act in that capacity; and 5. the information was confidential, and, if disclosed,
would blacken the reputation (formerly character) of the patient."cralaw virtua1aw library
4.
ID.; ID.; ID.; ID.; CONDITIONS. These requisites conform with the four (4)
fundamental conditions necessary for the establishment of a privilege against the disclosure
of certain communications, to wit: "1. The communications must originate in a confidence
that they will not be disclosed. 2. This element of confidentiality must be essential to the full
and satisfactory maintenance of the relation between the parties. 3. The relation must be
one which in the opinion of the community ought to be sedulously fostered 4. The injury that
would inure to the relation by the disclosure of the communications must be greater than
the benefit thereby gained for the correct disposal of litigation."cralaw virtua1aw library
5.
ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT PRIVILEGE; SCOPE. The physician may be
considered to be acting in his professional capacity when he attends to the patient for
curative, preventive, or palliative treatment. Thus, only disclosures which would have been
made to the physician to enable him "safely and efficaciously to treat his patient" are
covered by the privilege. It is to be emphasized that "it is the tenor only of the
communication that is privileged. The mere fact of making a communication, as well as the
date of a consultation and the number of consultations, are therefore not privileged from
disclosure, so long as the subject communicated is not stated."cralaw virtua1aw library
6.
ID.; ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; ONE WHO CLAIMS PRIVILEGED
COMMUNICATIONS MUST PROVE REQUISITES THEREOF. One who claims this privilege
must prove the presence of these aforementioned requisites.

7.
ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE;
INFORMATION GATHERED IN PRESENCE OF THIRD PARTIES, NOT PRIVILEGED. There is
authority to the effect that information elicited during consultation with a physician in the
presence of third parties removes such information from the mantle of the privilege: "Some
courts have held that the casual presence of a third person destroys the confidential nature
of the communication between doctor and patient and thus destroys the privilege, and that
under such circumstances the doctor may testify. Other courts have reached a contrary
result."cralaw virtua1aw library
8.
ID.; ID.; ID.; ID.; ID.; PRIVILEGED, WAIVED IN CASE AT BAR. while it may be true
that counsel for the petitioner opposed the oral request for the issuance of a subpoena ad
testificandum to Dr. Acampado and filed a formal motion for the quashal of the said
subpoena a day before the witness was to testify, the petitioner makes no claim in any of
her pleadings that her counsel had objected to any question asked of the witness on the
ground that it elicited an answer that would violate the privilege, despite the trial courts
advise that said counsel may interpose his objection to the testimony "once it becomes
apparent that the testimony, sought to be elicited is covered by the privileged
communication rule." The particular portions of the stenographic notes of the testimony of
Dr. Acampado quoted in the petitioners Petition and Memorandum, and in the private
respondents Memorandum, do not at all show that any objections were interposed. Even
granting ex gratia that the testimony of Dr. Acampado could be covered by the privilege, the
failure to seasonably object thereto amounted to a waiver thereof.
DECISION
DAVIDE, JR., J.:
This petition brings into focus the rule on the confidentiality of the physician-patient
relationship. Petitioner urges this Court to strike down as being violative thereof the
resolution of public respondent Court of Appeals in C.A.-G.R. SP No. 16991 denying due
course to a petition to annul the order of the trial court allowing a Psychiatrist of the National
Mental Hospital to testify as an expert witness and not as an attending physician of
petitioner.
The parties are in agreement as to the following facts:chanrob1es virtual 1aw library
Petitioner and private respondent are lawfully married to each other.
On 25 November 1987, private respondent filed with Branch 53 of the Regional Trial Court
(RTC) of Pangasinan a petition for annulment of such marriage on the ground that petitioner
has been allegedly suffering from a mental illness called schizophrenia "before, during and
after the marriage and until the present." After the issues were joined and the pre-trial was
terminated, trial on the merits ensued. Private respondent presented three (3) witnesses
before taking the witness stand himself to testify on his own behalf. On 11 January 1989,
private respondents counsel announced that he would present as his next witness the Chief
of the Female Services of the National Mental Hospital, Dr. Lydia Acampado, a Doctor of
Medicine who specializes in Psychiatry. Said counsel forthwith orally applied for the issuance
of a subpoena ad testificandum requiring Dr. Acampado to testify on 25 January 1989.
Petitioners counsel opposed the motion on the ground that the testimony sought to be
elicited from the witness is privileged since the latter had examined the petitioner in a
professional capacity and had diagnosed her to be suffering from schizophrenia. Over such

opposition, the subpoena was issued on 12 January 1989.chanrobles virtualawlibrary

chanrobles.com:chanrobles.com.ph
On 24 January 1989, petitioners counsel filed an urgent omnibus motion to quash the
subpoena and suspend the proceedings pending resolution of the motion.
Before Dr. Acampado took the witness stand on 25 January 1989, the court heard this urgent
motion. Movant argued that having seen and examined the petitioner in a professional
capacity, Dr. Acampado is barred from testifying under the rule on the confidentiality of a
physician-patient relationship. Counsel for private respondent contended, however, that Dr.
Acampado would be presented as an expert witness and would not testify on any
information acquired while attending to the petitioner in a professional capacity. The trial
court, per respondent Judge, denied the motion and allowed the witness to testify. Dr.
Acampado thus took the witness stand, was qualified by counsel for private respondent as
an expert witness and was asked hypothetical questions related to her field of expertise. She
neither revealed the illness she examined and treated the petitioner for nor disclosed the
results of her examination and the medicines she had prescribed.
Since petitioners counsel insisted that the ruling of the court on the motion be reduced to
writing,
respondent
Judge
issued
the
following
Order
on
the
same
date:jgc:chanrobles.com.ph
"In his omnibus motion filed with the Court only yesterday, January 24, 1989, petitioner
seeks to prevent Dr. Lydia Acampado from testifying because she saw and examined
respondent Nelly Lim in her professional capacity perforce her testimony is covered by the
privileged (sic) communication rule.
Petitioner contends that Dr. Acampado is being presented as an expert witness and that she
will not testify on any information she acquired in (sic) attending to Nelly Lim in her
professional capacity.
Based on the foregoing manifestation of counsel for petitioner, the Court denied the
respondents motion and forthwith allowed Dr. Acampado to testify. However, the Court
advised counsel for respondent to interpose his objection once it becomes apparent that the
testimony sought to be elicited is covered by the privileged communication rule.
On the witness box, Dr. Acampado answered routinary (sic) questions to qualify her as an
expert in psychiatry; she was asked to render an opinion as to what kind of illness (sic) are
stelazine tablets applied to; she was asked to render an opinion on a (sic) hypothetical facts
respecting certain behaviours of a person; and finally she admitted she saw and treated
Nelly Lim but she never revealed what illness she examined and treated her (sic); nor (sic)
the result of her examination of Nelly Lim, nor (sic) the medicines she prescribed.
WHEREFORE, the omnibus motion dated January 19, 1989 is hereby DENIED." 1
On 3 March 1989, petitioner filed with the public respondent Court of Appeals a petition 2 for
certiorari and prohibition, docketed therein as C.A.-G.R. SP No. 16991, to annul the aforesaid
order of respondent Judge on the ground that the same was issued with grave abuse of
discretion amounting to lack of jurisdiction, and to prohibit him from proceeding with the
reception of Dr. Acampados testimony.chanrobles.com : virtual law library
On 18 September 1989, the Court of Appeals promulgated a resolution 3 denying due course
to the petition on the ground that "the petitioner failed in establishing the confidential
nature of the testimony given by or obtained from Dr. Acampado when she testified on
January 25, 1989." Hence, the respondent Judge committed no grave abuse of discretion. In

support thereof, the respondent Court discussed the conditions which would render as
inadmissible testimonial evidence between a physician and his patient under paragraph (c),
Section 24, Rule 130 of the Revised Rules of Court and made the following
findings:jgc:chanrobles.com.ph
"The present suit is a civil case for annulment of marriage and the person whose testimony
is sought to be stopped as a privileged communication is a physician, who was summoned
by the patient in her professional capacity for curative remedy or treatment. The divergence
in views is whether the information given by the physician in her testimony in open court on
January 25, 1989 was a privileged communication. We are of the opinion that they do not fall
within the realm of a privileged communication because the information were (sic) not
obtained from the patient while attending her in her professional capacity and neither were
(sic) the information necessary to enable the physician to prescribe or give treatment to the
patient Nelly Lim. And neither does the information obtained from the physician tend to
blacken the character of the patient or bring disgrace to her or invite reproach. Dr.
Acampado is a Medical Specialist II and in-charge (sic) of the Female Service of the National
Center for Mental Health a fellow of the Philippine Psychiatrist Association and a Diplomate
of the Philippine Board of Psychiatrists. She was summoned to testify as an expert witness
and not as an attending physician of petitioner.
After a careful scrutiny of the transcript of Dr. Acampados testimony, We find no declaration
that touched (sic) or disclosed any information which she has acquired from her patient,
Nelly Lim, during the period she attended her patient in a professional capacity. Although
she testified that she examined and interviewed the patient, she did not disclose anything
she obtained in the course of her examination, interview and treatment of her patient. Given
a set of facts and asked a hypothetical question, Dr. Acampado rendered an opinion
regarding the history and behaviour of the fictitious character in the hypothetical problem.
The facts and conditions alleged in the hypothetical problem did not refer and (sic) had no
bearing to (sic) whatever information or findings the doctor obtained from attending the (sic)
patient. A physician is not disqualified to testify as an expert concerning a patients ailment,
when he can disregard knowledge acquired in attending such patient and make answer
solely on facts related in (sic) the hypothetical question. (Butler v. Role, 242 Pac. 436;
Supreme Court of Arizona Jan. 7, 1926). Expert testimony of a physician based on
hypothetical question (sic) as to cause of illness of a person whom he has attended is not
privileged, provided the physician does not give testimony tending to disclose confidential
information related to him in his professional capacity while attending to the patient. (Crago
v. City of Cedar Rapids, 98 NW 354, see Jones on Evidence, Vol. 3, p. 843, 3rd Ed.).
The rule on privilege (sic) communication in the relation of physician and patient proceeds
from the fundamental assumption that the communication to deserve protection must be
confidential in their origin. Confidentiality is not to be blindly implied from the mere relation
of physician and patient. It might be implied according to circumstances of each case, taking
into consideration the nature of the ailment and the occasion of the consultation. The
claimant of the privilege has the burden of establishing in each instance all the facts
necessary to create the privilege, including the confidential nature of the information given."
4
Her motion to reconsider the resolution having been denied, petitioner took this recourse
under Rule 45 of the Rules of Court. In her view, the respondent Court of Appeals "seriously
erred" :chanrob1es virtual 1aw library
"I.

. . . in not finding that all the essential elements of the rule on physician-patient privileged
communication under Section 21, Rule 130 of the Rules of Court (Section 24, Rule 130 of the
Revised Rules of Evidence) exist in the case at bar.
II.
. . . in believing that Dr. Acampado was summoned as an expert witness and not as an
attending physician of petitioner.
III.
. . . in concluding that Dr. Acampado made no declaration that touched (sic) or disclosed
any information which she has acquired from her patient, Nelly Lim, during the period she
attended her patient in a professional capacity.
IV.
. . . in declaring that the petitioner failed in establishing the confidential nature of the
testimony given by or obtained from Dr. Acampado." 5
We gave due course to the petition and required the parties to submit their respective
Memoranda 6 after the private respondent filed his Comment 7 and the petitioner submitted
her reply 8 thereto. The parties subsequently filed their separate Memoranda.
The petition is devoid of any merit. Respondent Court of Appeals committed no reversible
error in its challenged resolution.
The law in point is paragraph (c), Section 24 of the Revised Rules on Evidence which
reads:jgc:chanrobles.com.ph
"SECTION 24. Disqualification by reason of privileged communication. The following
persons cannot testify as to matters learned in confidence in the following cases:chanrob1es
virtual 1aw library
x

(c)
A person authorized to practice medicine, surgery or obstetrics cannot in a civil case,
without the consent of the patient, be examined as to any advice or treatment given by him
or any information which he may have acquired in attending such patient in a professional
capacity, which information was necessary to enable him to act in that capacity, and which
would blacken the reputation of the patient." chanrobles virtual lawlibrary
This is a reproduction of paragraph (c), Section 21, Rule 130 of the 1964 Revised Rules of
Court with two (2) modifications, namely: (a) the inclusion of the phrase "advice or
treatment given by him," and (b) substitution of the word reputation for the word character.
Said Section 21 in turn is a reproduction of paragraph (f), Section 26, Rule 123 of the 1940
Rules of Court with a modification consisting in the change of the phrase "which would tend
to blacken" in the latter to "would blacken." 9 Verily, these changes affected the meaning of
the provision. Under the 1940 Rules of Court, it was sufficient if the information would tend
to blacken the character of the patient. In the 1964 Rules of Court, a stricter requirement
was imposed; it was imperative that the information would blacken such character. With the

advent of the Revised Rules on Evidence on 1 July 1989, the rule was relaxed once more by
the substitution of the word character with the word reputation. There is a distinction
between these two concepts." Character is what a man is, and reputation is what he is
supposed to be in what people say he is.Character depends on attributes possessed, and
reputation on attributes which others believe one to possess. The former signifies reality
and the latter merely what is accepted to be reality at present." 10
This rule on the physician-patient privilege is intended to facilitate and make safe full and
confidential disclosure by the patient to the physician of all facts, circumstances and
symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and
publication on the witness stand, to the end that the physician may form a correct opinion,
and be enabled safely and efficaciously to treat his patient. 11 It rests in public policy and is
for the general interest of the community. 12
Since the object of the privilege is to protect the patient, it may be waived if no timely
objection is made to the physicians testimony. 13
In order that the privilege may be successfully claimed, the following requisites must
concur:jgc:chanrobles.com.ph
"1.

the privilege is claimed in a civil case;

2.
the person against whom the privilege is claimed is one duly authorized to practice
medicine, surgery or obstetrics;
3.
such person acquired the information while he was attending to the patient in his
professional capacity;
4.

the information was necessary to enable him to act in that capacity; and

5.
the information was confidential, and, if disclosed, would blacken the reputation
(formerly character) of the patient." 14
These requisites conform with the four (4) fundamental conditions necessary for the
establishment of a privilege against the disclosure of certain communications, to
wit:jgc:chanrobles.com.ph
"1.

The communications must originate in a confidence that they will not be disclosed.

2.
This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties.
3.
The relation must be one which in the opinion of the community ought to be
sedulously fostered
4.
The injury that would inure to the relation by the disclosure of the communications
must be greater than the benefit thereby gained for the correct disposal of litigation." 15
The physician may be considered to be acting in his professional capacity when he attends
to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which
would have been made to the physician to enable him "safely and efficaciously to treat his
patient" are covered by the privilege. 16 It is to be emphasized that "it is the tenor only of
the communication that is privileged. The mere fact of making a communication, as well as
the date of a consultation and the number of consultations, are therefore not privileged from
disclosure, so long as the subject communicated is not stated." 17

One who claims this privilege must prove the presence of these aforementioned requisites.
18
Our careful evaluation of the submitted pleadings leads Us to no other course of action but
to agree with the respondent Courts observation that the petitioner failed to discharge that
burden. In the first place, Dr. Acampado was presented and qualified as an expert witness.
As correctly held by the Court of Appeals, she did not disclose anything obtained in the
course of her examination, interview and treatment of the petitioner; moreover, the facts
and conditions alleged in the hypothetical problem did not refer to and had no bearing on
whatever information or findings the doctor obtained while attending to the patient. There is,
as well, no showing that Dr. Acampados answers to the questions propounded to her
relating to the hypothetical problem were influenced by the information obtained from the
petitioner. Otherwise stated, her expert opinion excluded whatever information or
knowledge she had about the petitioner which was acquired by reason of the physicianpatient relationship existing between them. As an expert witness, her testimony before the
trial court cannot then be excluded. The rule on this point is summarized as
follows:chanrobles virtual lawlibrary
"The predominating view, with some scant authority otherwise, is that the statutory
physician-patient privilege, though duly claimed, is not violated by permitting a physician to
give expert opinion testimony in response to a strictly hypothetical question in a lawsuit
involving the physical mental condition of a patient whom he has attended professionally,
where his opinion is based strictly upon the hypothetical facts stated, excluding and
disregarding any personal professional knowledge he may have concerning such patient. But
in order to avoid the bar of the physician-patient privilege where it is asserted in such a
case, the physician must base his opinion solely upon the facts hypothesized in the
question, excluding from consideration his personal knowledge of the patient acquired
through the physician and patient relationship. If he cannot or does not exclude from
consideration his personal professional knowledge of the patients condition he should not
be permitted to testify as to his expert opinion." 19
Secondly, it is quite clear from Dr. Acampados testimony that the petitioner was never
interviewed alone. Said interviews were always conducted in the presence of a third party,
thus:jgc:chanrobles.com.ph
"Q

I am asking you, doctor, whom did you interview?

A
I interviewed the husband first, then the father and after having the history, I
interviewed the patient, Nelly.
Q

How many times did Juan Sim and Nelly Lim go to your office?

A
Now, the two (2) of them came three (3) times. As I have stated before, once in the
month of April of 1987 and two (2) times for the month of June 1987, and after that, since
July of 1987, it was the father of Nelly, Dr. Lim, who was bringing Nelly to me until November
of 1987.
Q

Now, Dr. Lim is a fellow physician?

Yes, I understand.

Was there anything that he told you when he visited with you in a clinic?

A
I would say that there was none. Even if I asked information about Nelly, I could not
get anything from Dr. Lim.
Q
Now, when Dr. Lim and his daughter went to your clinic, was there any doctor who
was also present during that interview?
A

No, sir, I dont remember any." 20

There is authority to the effect that information elicited during consultation with a physician
in the presence of third parties removes such information from the mantle of the
privilege:jgc:chanrobles.com.ph
"Some courts have held that the casual presence of a third person destroys the confidential
nature of the communication between doctor and patient and thus destroys the privilege,
and that under such circumstances the doctor may testify. Other courts have reached a
contrary result." 21
Thirdly, except for the petitioners sweeping claim that" (T)he information given by Dr.
Acampado brings disgrace and invite (sic) reproach to petitioner by falsely making it appear
in the eyes of the trial court and the public that the latter was suffering from a mental
disturbance called schizophrenia which caused, and continues to cause, irreparable injury
to the name and reputation of petitioner and her family," 22 which is based on a wrong
premise, nothing specific or concrete was offered to show that indeed, the information
obtained from Dr. Acampado would blacken the formers "character" (or "reputation"). Dr.
Acampado never disclosed any information obtained from the petitioner regarding the
latters ailment and the treatment recommended therefor.chanrobles.com : virtual law
library
Finally, while it may be true that counsel for the petitioner opposed the oral request for the
issuance of a subpoena ad testificandum to Dr. Acampado and filed a formal motion for the
quashal of the said subpoena a day before the witness was to testify, the petitioner makes
no claim in any of her pleadings that her counsel had objected to any question asked of the
witness on the ground that it elicited an answer that would violate the privilege, despite the
trial courts advise that said counsel may interpose his objection to the testimony "once it
becomes apparent that the testimony, sought to be elicited is covered by the privileged
communication rule." The particular portions of the stenographic notes of the testimony of
Dr. Acampado quoted in the petitioners Petition 23 and Memorandum, 24 and in the private
respondents Memorandum, 25 do not at all show that any objections were interposed. Even
granting ex gratia that the testimony of Dr. Acampado could be covered by the privilege, the
failure to seasonably object thereto amounted to a waiver thereof.
WHEREFORE, the instant petition is DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.
Bidin, Romero and Melo, JJ., concur.
Gutierrez, Jr., J., is on official leave.
MA. PAZ FERNANDEZ KROHN, petitioner,
vs.
COURT OF APPEALS and EDGAR KROHN, JR., respondents.

Cruz, Durian, Agabin, Atienza, Alday and Tuason for petitioner.

Oscar F. Martinez for private respondent.

BELLOSILLO, J.:
A confidential psychiatric evaluation report is being presented in evidence before the trial
court in a petition for annulment of marriage grounded on psychological incapacity. The
witness testifying on the report is the husband who initiated the annulment proceedings, not
the physician who prepared the report.
The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on
privileged communication between physician and patient, seeks to enjoin her husband from
disclosing the contents of the report. After failing to convince the trial court and the
appellate court, she is now before us on a petition for review on certiorari.
On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint Vincent
de Paul Church in San Marcelino, Manila. The union produced three children, Edgar Johannes,
Karl Wilhelm and Alexandra. Their blessings notwithstanding, the relationship between the
couple developed into a stormy one. In 1971, Ma. Paz underwent psychological testing
purportedly in an effort to ease the marital strain. The effort however proved futile. In 1973,
they finally separated in fact.
In 1975, Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz
prepared and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November 1978,
presenting the report among others, he obtained a decree ("Conclusion") from the Tribunal
Metropolitanum Matrimoniale in Manila nullifying his church marriage with Ma. Paz on the
ground of "incapacitas assumendi onera conjugalia due to lack of due discretion existent at
the time of the wedding and thereafter." 1 On 10 July 1979, the decree was confirmed and
pronounced "Final and Definite." 2
Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial Court) of
Pasig, Br. II, issued an order granting the voluntary dissolution of the conjugal partnership.
On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz
before the trial court. 3 In his petition, he cited the Confidential Psychiatric Evaluation Report
which Ma. Paz merely denied in her Answer as "either unfounded or irrelevant." 4
At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the
contents of the Confidential Psychiatric Evaluation Report. This was objected to on the
ground that it violated the rule on privileged communication between physician and patient.
Subsequently, Ma. Paz filed a Manifestation expressing her "continuing objection" to any
evidence, oral or documentary, "that would thwart the physician-patient privileged
communication rule," 5 and thereafter submitted a Statement for the Record asserting
among others that "there is no factual or legal basis whatsoever for petitioner (Edgar) to
claim 'psychological incapacity' to annul their marriage, such ground being completely false,
fabricated and merely an afterthought." 6 Before leaving for Spain where she has since
resided after their separation, Ma. Paz also authorized and instructed her counsel to oppose
the suit and pursue her counterclaim even during her absence.

On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the introduction of the
confidential psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz'
Statement for the Record. 8
On 4 June 1991, the trial court issued an Order admitting the Confidential Psychiatric
Evaluation Report in evidence and ruling that
. . . the Court resolves to overrule the objection and to sustain the Opposition to the
respondent's Motion; first, because the very issue in this case is whether or not the
respondent had been suffering from psychological incapacity; and secondly, when the said
psychiatric report was referred to in the complaint, the respondent did not object thereto on
the ground of the supposed privileged communication between patient and physician. What
was raised by the respondent was that the said psychiatric report was irrelevant. So, the
Court feels that in the interest of justice and for the purpose of determining whether the
respondent as alleged in the petition was suffering from psychological incapacity, the said
psychiatric report is very material and may be testified to by petitioner (Edgar Krohn, Jr.)
without prejudice on the part of the respondent to dispute the said report or to crossexamination first the petitioner and later the psychiatrist who prepared the same if the latter
will be presented. 9
On 27 November 1991, the trial court denied the Motion to Reconsider Order dated June 4,
1991, and directed that the Statement for the Record filed by Ma. Paz be stricken off the
record. A subsequent motion for reconsideration filed by her counsel was likewise denied.
Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a Decision
promulgated 30 October 1992, the appellate court dismissed the petition for certiorari. 10
On 5 February 1993, the motion to reconsider the dismissal was likewise denied. Hence, the
instant petition for review.
Petitioner now seeks to enjoin the presentation and disclosure of the contents of the
psychiatric report and prays for the admission of her Statement for the Record to form part
of the records of the case. She argues that since
Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician from testifying on
matters which he may have acquired in attending to a patient in a professional capacity,
"WITH MORE REASON should be third person (like respondent-husband in this particular
instance) be PROHIBITED from testifying on privileged matters between a physician and
patient or from submitting any medical report, findings or evaluation prepared by a
physician which the latter has acquired as a result of his confidential and privileged relation
with a patient." 12 She says that the reason behind the prohibition is
. . . to facilitate and make safe, full and confidential disclosure by a patient to his physician
of all facts, circumstances and symptoms, untrammeled by apprehension of their
subsequent and enforced disclosure and publication on the witness stand, to the end that
the physician may form a correct opinion, and be enabled safely and efficaciously to treat
his patient. 13
She further argues that to allow her husband to testify on the contents of the psychiatric
evaluation report "will set a very bad and dangerous precedent because it abets
circumvention of the rule's intent in preserving the sanctity, security and confidence to the
relation of physician and his patient." 14 Her thesis is that what cannot be done directly
should not be allowed to be done indirectly.
Petitioner submits that her Statement for the Record simply reiterates under oath what she
asserted in her Answer, which she failed to verify as she had already left for Spain when her
Answer was filed. She maintains that her "Statement for the Record is a plain and simple

pleading and is not as it has never been intended to take the place of her testimony;" 15
hence, there is no factual and legal basis whatsoever to expunge it from the records.
Private respondent Edgar Krohn, Jr., however contends that "the rules are very explicit: the
prohibition applies only to a physician. Thus . . . the legal prohibition to testify is not
applicable to the case at bar where the person sought to be barred from testifying on the
privileged communication is the husband and not the physician of the petitioner." 16 In fact,
according to him, the Rules sanction his testimony considering that a husband may testify
against his wife in a civil case filed by one against the other.
Besides, private respondent submits that privileged communication may be waived by the
person entitled thereto, and this petitioner expressly did when she gave her unconditional
consent to the use of the psychiatric evaluation report when it was presented to the Tribunal
Metropolitanum Matrimoniale which took it into account among others in deciding the case
and declaring their marriage null and void. Private respondent further argues that petitioner
also gave her implied consent when she failed to specifically object to the admissibility of
the report in her Answer where she merely described the evaluation report as "either
unfounded or irrelevant." At any rate, failure to interpose a timely objection at the earliest
opportunity to the evidence presented on privileged matters may be construed as an
implied waiver.
With regard to the Statement for the Record filed by petitioner, private respondent posits
that this in reality is an amendment of her Answer and thus should comply with pertinent
provisions of the Rules of Court, hence, its exclusion from the records for failure to comply
with the Rules is proper.
The treatise presented by petitioner on the privileged nature of the communication between
physician and patient, as well as the reasons therefor, is not doubted. Indeed, statutes
making communications between physician and patient privileged are intended to inspire
confidence in the patient and encourage him to make a full disclosure to his physician of his
symptoms and condition. 17 Consequently, this prevents the physician from making public
information that will result in humiliation, embarrassment, or disgrace to the patient. 18 For,
the patient should rest assured with the knowledge that the law recognizes the
communication as confidential, and guards against the possibility of his feelings being
shocked or his reputation tarnished by their subsequent disclosure. 19 The physician-patient
privilege creates a zone of privacy, intended to preclude the humiliation of the patient that
may follow the disclosure of his ailments. Indeed, certain types of information
communicated in the context of the physician-patient relationship fall within the
constitutionally protected zone of privacy, 20 including a patient's interest in keeping his
mental health records confidential. 21 Thus, it has been observed that the psychotherapistpatient privilege is founded upon the notion that certain forms of antisocial behavior may be
prevented by encouraging those in need of treatment for emotional problems to secure the
services of a psychotherapist.
Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of Appeals 22
clearly lays down the requisites in order that the privilege may be successfully invoked: (a)
the privilege is claimed in a civil case; (b) the person against whom the privilege is claimed
is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired
the information while he was attending to the patient in his professional capacity; (d) the
information was necessary to enable him to act in that capacity; and, (e) the information
was confidential and, if disclosed, would blacken the reputation (formerly character) of the
patient.
In the instant case, the person against whom the privilege is claimed is not one duly
authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband

who wishes to testify on a document executed by medical practitioners. Plainly and clearly,
this does not fall within the claimed prohibition. Neither can his testimony be considered a
circumvention of the prohibition because his testimony cannot have the force and effect of
the testimony of the physician who examined the patient and executed the report.
Counsel for petitioner indulged heavily in objecting to the testimony of private respondent
on the ground that it was privileged. In his Manifestation before the trial court dated 10 May
1991, he invoked the rule on privileged communications but never questioned the testimony
as hearsay. It was a fatal mistake. For, in failing to object to the testimony on the ground
that it was hearsay, counsel waived his right to make such objection and, consequently, the
evidence offered may be admitted.
The other issue raised by petitioner is too trivial to merit the full attention of this Court. The
allegations contained in the Statement for the Records are but refutations of private
respondent's declarations which may be denied or disproved during the trial.
The instant appeal has taken its toll on the petition for annulment. Three years have already
lapsed and private respondent herein, as petitioner before the trial court, has yet to
conclude his testimony thereat. We thus enjoin the trial judge and the parties' respective
counsel to act with deliberate speed in resolving the main action, and avoid any and all
stratagems that may further delay this case. If all lawyers are allowed to appeal every
perceived indiscretion of a judge in the course of trial and include in their appeals depthless
issues, there will be no end to litigations, and the docket of appellate courts will forever be
clogged with inconsequential cases. Hence, counsel should exercise prudence in appealing
lower court rulings and raise only legitimate issues so as not to retard the resolution of
cases. Indeed, there is no point in unreasonably delaying the resolution of the petition and
prolonging the agony of the wedded couple who after coming out from a storm still have the
right to a renewed blissful life either alone or in the company of each other. 23
WHEREFORE, the instant petition for review is DENIED for lack of merit. The assailed
Decision of respondent Court of Appeals promulgated on 30 October 1992 is AFFIRMED.
SO ORDERED

United States v. Nixon, 418 U.S. 683 (1974)

United States v. Nixon
No. 73-1766
Argued July 8, 1974
Decided July 24, 1974*
418 U.S. 683
CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Syllabus
Following indictment alleging violation of federal statutes by certain staff members of the
White House and political supporters of the President, the Special Prosecutor filed a motion
under Fed.Rule Crim.Proc. 17(c) for a subpoena duces tecum for the production before trial
of certain tapes and documents relating to precisely identified conversations and meetings
between the President and others. The President, claiming executive privilege, filed a motion
to quash the subpoena. The District Court, after treating the subpoenaed material as
presumptively privileged, concluded that the Special Prosecutor had made a sufficient
showing to rebut the presumption and that the requirements of Rule 17(c) had been
satisfied. The court thereafter issued an order for an in camera examination of the
subpoenaed material, having rejected the President's contentions (a) that the dispute
between him and the Special Prosecutor was nonjusticiable as an "intra-executive" conflict
and (b) that the judiciary lacked authority to review the President's assertion of executive
privilege. The court stayed its order pending appellate review, which the President then
sought in the Court of Appeals. The Special Prosecutor then filed in this Court a petition for a
writ of certiorari before judgment (No. 73-1766), and the President filed a cross-petition for

such a writ challenging the grand jury action (No. 73-1834). The Court granted both
petitions.
Held:
1. The District Court's order was appealable as a "final" order under 28 U.S.C. 1291, was
therefore properly "in" the Court of Appeals, 28 U.S.C. 1254, when the petition for certiorari
before judgment was filed in this Court, and is now properly before this Court for review.
Although such an order is normally not final and subject to appeal, an exception is made in a
"limited class of
Page 418 U. S. 684
cases where denial of immediate review would render impossible any review whatsoever of
an individual's claims,"
United States v. Ryan, 402 U. S. 530, 402 U. S. 533. Such an exception is proper in the
unique circumstances of this case, where it would be inappropriate to subject the President
to the procedure of securing review by resisting the order and inappropriate to require that
the District Court proceed by a traditional contempt citation in order to provide appellate
review. Pp. 418 U. S. 690-692.
2. The dispute between the Special Prosecutor and the President presents a justiciable
controversy. Pp. 418 U. S. 692-697.
(a) The mere assertion of an "intra-branch dispute," without more, does not defeat federal
jurisdiction. United States v. ICC, 337 U. S. 426. P. 418 U. S. 693.
(b) The Attorney General, by regulation, has conferred upon the Special Prosecutor unique
tenure and authority to represent the United States, and has given the Special Prosecutor
explicit power to contest the invocation of executive privilege in seeking evidence deemed
relevant to the performance of his specially delegated duties. While the regulation remains
in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy,
347 U. S. 260. Pp. 418 U. S. 694-696.
(c) The action of the Special Prosecutor within the scope of his express authority seeking
specified evidence preliminarily determined to be relevant and admissible in the pending
criminal case, and the President's assertion of privilege in opposition thereto, present issues
"of a type which are traditionally justiciable," United States v. ICC, supra, at 337 U. S. 430,
and the fact that both litigants are officers of the Executive Branch is not a bar to
justiciability. Pp. 418 U. S. 696-697.
3. From this Court's examination of the material submitted by the Special Prosecutor in
support of his motion for the subpoena, much of which is under seal, it is clear that the
District Court's denial of the motion to quash comported with Rule 17(c), and that the
Special Prosecutor has made a sufficient showing to justify a subpoena for production before
trial. Pp. 418 U. S. 697-702.
4. Neither the doctrine of separation of powers nor the generalized need for confidentiality
of high-level communications, without more, can sustain an absolute, unqualified
Presidential privilege of immunity from judicial process under all circumstances. See, e.g., 5
U. S. Madison, 1 Cranch 137, 5 U. S. 177; Baker v. Carr, 369 U. S. 186, 369 U. S. 211. Absent
a claim of need to protect military, diplomatic, or sensitive national security secrets, the
confidentiality of

Page 418 U. S. 685

Presidential communications is not significantly diminished by producing material for a
criminal trial under the protected conditions of in camera inspection, and any absolute
executive privilege under Art. II of the Constitution would plainly conflict with the function of
the courts under the Constitution. Pp. 418 U. S. 703-707.
5. Although the courts will afford the utmost deference to Presidential acts in the
performance of an Art. II function, United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No.
14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a
criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are
implicated, but merely on the ground of a generalized interest in confidentiality, the
President's generalized assertion of privilege must yield to the demonstrated, specific need
for evidence in a pending criminal trial and the fundamental demands of due process of law
in the fair administration of criminal justice. Pp. 418 U. S. 707-713.
6. On the basis of this Court's examination of the record, it cannot be concluded that the
District Court erred in ordering in camera examination of the subpoenaed material, which
shall now forthwith be transmitted to the District Court. Pp. 418 U. S. 713-714.
7. Since a president's communications encompass a vastly wider range of sensitive material
than would be true of an ordinary individual, the public interest requires that Presidential
confidentiality be afforded the greatest protection consistent with the fair administration of
justice, and the District Court has a heavy responsibility to ensure that material involving
Presidential conversations irrelevant to or inadmissible in the criminal prosecution be
accorded the high degree of respect due a President, and that such material be returned
under seal to its lawful custodian. Until released to the Special Prosecutor, no in camera
material is to be released to anyone. Pp. 418 U. S. 714-716.
No. 73-1766, 377 F.Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as improvidently
granted.
BURGER, C.J., delivered the opinion of the Court, in which all Members joined except
REHNQUIST, J., who took no part in the consideration or decision of the cases.
Page 418 U. S. 686
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This litigation presents for review the denial of a motion, filed in the District Court on behalf
of the President of the United States, in the case of United States v. Mitchell (D.C.Crim. No.
7110), to quash a third-party subpoena duces tecum issued by the United States District
Court for the District of Columbia, pursuant to Fed.Rule Crim.Proc. 17(c). The subpoena
directed the President to produce certain tape recordings and documents relating to his
conversations with aides and advisers. The court rejected the President's claims of absolute
executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule
17(c). The President appealed to the Court of Appeals. We granted both the United States'
petition for certiorari before judgment (No. 7 1766), [Footnote 1] and also the President's
cross-petition for certiorari
Page 418 U. S. 687
before judgment (No. 73-1834), [Footnote 2] because of the public importance of the issues
presented and the need for their prompt resolution. 417 U.S. 927 and 960 (1974).

On March 1, 1974, a grand jury of the United States District Court for the District of
Columbia returned an indictment charging seven named individuals [Footnote 3] with
various offenses, including conspiracy to defraud the United States and to obstruct justice.
Although he was not designated as such in the indictment, the grand jury named the
President, among others, as an unindicted coconspirator. [Footnote 4] On April 18, 1974,
upon motion of the Special
Page 418 U. S. 688
Prosecutor, see n 8, infra, a subpoena duces tecum was issued pursuant to Rule 17(c) to the
President by the United States District Court and made returnable on May 2, 1974. This
subpoena required the production, in advance of the September 9 trial date, of certain
tapes, memoranda, papers, transcripts, or other writings relating to certain precisely
identified meetings between the President and others. [Footnote 5] The Special Prosecutor
was able to fix the time, place, and persons present at these discussions because the White
House daily logs and appointment records had been delivered to him. On April 30, the
President publicly released edited transcripts of 43 conversations; portions of 20
conversations subject to subpoena in the present case were included. On May 1, 1974, the
President's counsel filed a "special appearance" and a motion to quash the subpoena under
Rule 17(c). This motion was accompanied by a formal claim of privilege. At a subsequent
hearing, [Footnote 6] further motions to expunge the grand jury's action naming the
President as an unindicted coconspirator and for protective orders against the disclosure of
that information were filed or raised orally by counsel for the President.
On May 20, 1974, the District Court denied the motion to quash and the motions to expunge
and for protective orders. 377 F.Supp. 1326. It further ordered "the President or any
subordinate officer, official, or employee with custody or control of the documents or
Page 418 U. S. 689
objects subpoenaed," id. at 1331, to deliver to the District Court, on or before May 31, 1974,
the originals of all subpoenaed items, as well as an index and analysis of those items,
together with tape copies of those portions of the subpoenaed recordings for which
transcripts had been released to the public by the President on April 30. The District Court
rejected jurisdictional challenges based on a contention that the dispute was nonjusticiable
because it was between the Special Prosecutor and the Chief Executive and hence "intraexecutive" in character; it also rejected the contention that the Judiciary was without
authority to review an assertion of executive privilege by the President. The court's rejection
of the first challenge was based on the authority and powers vested in the Special
Prosecutor by the regulation promulgated by the Attorney General; the court concluded that
a justiciable controversy was presented. The second challenge was held to be foreclosed by
the decision in Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973).
The District Court held that the judiciary, not the President, was the final arbiter of a claim of
executive privilege. The court concluded that, under the circumstances of this case, the
presumptive privilege was overcome by the Special Prosecutor's prima facie "demonstration
of need sufficiently compelling to warrant judicial examination in chambers. . . ." 377 F.Supp.
at 1330. The court held, finally, that the Special Prosecutor had satisfied the requirements of
Rule 17(c). The District Court stayed its order pending appellate review on condition that
review was sought before 4 p.m., May 24. The court further provided that matters filed
under seal remain under seal when transmitted as part of the record.
On May 24, 1974, the President filed a timely notice of appeal from the District Court order,
and the certified record from the District Court was docketed in the United

Page 418 U. S. 690

States Court of Appeals for the District of Columbia Circuit. On the same day, the President
also filed a petition for writ of mandamus in the Court of Appeals seeking review of the
District Court order.
Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a writ of
certiorari before judgment. On May 31, the petition was granted with an expedited briefing
schedule. 417 U.S. 927. On June 6, the President filed, under seal, a cross-petition for writ of
certiorari before judgment. This cross-petition was granted June 1, 1974, 417 U.S. 960, and
the case was set for argument on July 8, 1974.
I
JURISDICTION
The threshold question presented is whether the May 20, 1974, order of the District Court
was an appealable order and whether this case was properly "in" the Court of Appeals when
the petition for certiorari was filed in this Cort. 28 U.S.C. 1254. The Court of Appeals'
jurisdiction under 28 U.S.C. 1291 encompasses only "final decisions of the district courts."
Since the appeal as timely filed and all other procedural requirements were met, the petition
is properly before this Court for consideration if the District Court order was final. 28 U.S.C.
1254(1), 2101(e).
The finality requirement of 28 U.S.C. 1291 embodies a strong congressional policy against
piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by
interlocutory appeals. See, e.g., Cobbledick v. United States, 309 U. S. 323, 309 U. S. 324326 (1940). This requirement ordinarily promotes judicial efficiency and hastens the ultimate
termination of litigation. In applying this principle to an order denying a motion to quash and
requiring the production of evidence pursuant
Page 418 U. S. 691
to a subpoena duces tecum, it has been repeatedly held that the order is not final, and
hence not appealable. United States v. Ryan, 402 U. S. 530, 402 U. S. 532 (1971);
Cobbledick v. United States, supra; Alexander v. United States, 201 U. S. 117 (1906). This
Court has
"consistently held that the necessity for expedition in the administration of the criminal law
justifies putting one who seeks to resist the production of desired information to a choice
between compliance with a trial court's order to produce prior to any review of that order,
and resistance to that order with the concomitant possibility of an adjudication of contempt
if his claims are rejected on appeal."
United States v. Ryan, supra, at 402 U. S. 533.
The requirement of submitting to contempt, however, is not without exception, and in some
instances the purposes underlying the finality rule require a different result. For example, in
Perlman v. United States, 247 U. S. 7 (1918), a subpoena had been directed to a third party
requesting certain exhibits; the appellant, who owned the exhibits, sought to raise a claim of
privilege. The Court held an order compelling production was appealable because it was
unlikely that the third party would risk a contempt citation in order to allow immediate
review of the appellant's claim of privilege. Id. at 247 U. S. 12-13. That case fell within the

"limited class of cases where denial of immediate review would render impossible any
review whatsoever of an individual's claims." United States v. Ryan, supra, at 402 U. S. 533.
Here too, the traditional contempt avenue to immediate appeal is peculiarly inappropriate
due to the unique setting in which the question arises. To require a President of the United
States to place himself in the posture of disobeying an order of a court merely to trigger the
procedural mechanism for review of the ruling would be
Page 418 U. S. 692
unseemly, and would present an unnecessary occasion for constitutional confrontation
between two branches of the Government. Similarly, a federal judge should not be placed in
the posture of issuing a citation to a President simply in order to invoke review. The issue
whether a President can be cited for contempt could itself engender protracted litigation,
and would further delay both review on the merits of his claim of privilege and the ultimate
termination of the underlying criminal action for which his evidence is sought. These
considerations lead us to conclude that the order of the District Court was an appealable
order. The appeal from that order was therefore properly "in" the Court of Appeals, and the
case is now properly before this Court on the writ of certiorari before judgment. 28 U.S.C.
1254; 28 U.S.C. 2101(e). Gay v. Ruff, 292 U. S. 25, 292 U. S. 30 (1934). [Footnote 7]
II
JUSTICIABILITY
In the District Court, the President's counsel argued that the court lacked jurisdiction to issue
the subpoena because the matter was an intra-branch dispute between a subordinate and
superior officer of the Executive Branch, and hence not subject to judicial resolution. That
argument has been renewed in this Court with emphasis on the contention that the dispute
does not present a "case" or "controversy" which can be adjudicated in the federal courts.
The President's counsel argues that the federal courts should not intrude into areas
committed to the other branches of Government.
Page 418 U. S. 693
He views the present dispute as essentially a "jurisdictional" dispute within the Executive
Branch which he analogizes to a dispute between two congressional committees. Since the
Executive Branch has exclusive authority and absolute discretion to decide whether to
prosecute a case, Confiscation Cases, 7 Wall. 454 (1869); United States v. Cox, 342 F.2d 167,
171 (CA5), cert. denied sub nom. Cox v. Hauber, 381 U.S. 935 (1965), it is contended that a
President's decision is final in determining what evidence is to be used in a given criminal
case. Although his counsel concedes that the President ha delegated certain specific powers
to the Special Prosecutor, he has not
"waived nor delegated to the Special Prosecutor the President's duty to claim privilege as to
all materials . . . which fall within the President's inherent authority to refuse to disclose to
any executive officer."
Brief for the President 42. The Special Prosecutor's demand for the items therefore presents,
in the view of the President's counsel, a political question under Baker v. Carr, 369 U. S. 186
(1962), since it involves a "textually demonstrable" grant of power under Art. II.
The mere assertion of a claim of an "intra-branch dispute," without more, has never
operated to defeat federal jurisdiction; justiciability does not depend on such a surface
inquiry. In United States v. ICC, 337 U. S. 426 (1949), the Court observed, "courts must look

behind names that symbolize the parties to determine whether a justiciable case or
controversy is presented." Id. at 337 U. S. 430. See also Powell v. McCormack, 395 U. S. 486
(1969); ICC v. Jersey City, 322 U. S. 503 (1944); United States ex rel. Chapman v. FPC, 345 U.
S. 153 (1953); Secretary of Agriculture v. United States, 347 U. S. 645 (1954); FMB v.
Isbrandtsen Co., 356 U. S. 481, 356 U. S. 483 n. 2 (1958); United States v. Marine
Bancorporation, ante, p. 418 U. S. 602; and United States v. Connecticut National Bank,
ante, p. 418 U. S. 656.
Page 418 U. S. 694
Our starting point is the nature of the proceeding for which the evidence is sought -- here, a
pending criminal prosecution. It is a judicial proceeding in a federal court alleging violation
of federal laws, and is brought in the name of the United States as sovereign. Berger v.
United States, 295 U. S. 78, 295 U. S. 88 (1935). Under the authority of Art. II, 2, Congress
has vested in the Attorney General the power to conduct the criminal litigation of the United
States Government. 28 U.S.C. 516. It has also vested in him the power to appoint
subordinate officers to assist him in the discharge of his duties. 28 U.S.C. 509, 510, 515,
533. Acting pursuant to those statutes, the Attorney General has delegated the authority to
represent the United States in these particular matters to a Special Prosecutor with unique
authority and tenure. [Footnote 8] The regulation gives the
Page 418 U. S. 695
Special Prosecutor explicit power to contest the invocation of executive privilege in the
process of seeking evidence deemed relevant to the performance of these specially
delegated duties. [Footnote 9] 38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805.
So long as this regulation is extant, it has the force of law. In United States ex rel. Accardi v.
Shaughnessy, 347 U. S. 260 (1954), regulations of the Attorney General delegated certain of
his discretionary powers to the Board
Page 418 U. S. 696
of Immigration Appeals and required that Board to exercise its own discretion on appeals in
deportation cases. The Court held that, so long as the Attorney General's regulations
remained operative, he denied himself the authority to exercise the discretion delegated to
the Board even though the original authority was his and he could reassert it by amending
the regulations. Service v. Dulles, 354 U. S. 363, 354 U. S. 388 (1957), and Vitarelli v. Seaton,
359 U. S. 535 (1959), reaffirmed the basic holding of Accardi.
Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke
the regulation defining the Special Prosecutor's authority. But he has not done so. [Footnote
10] So long as this regulation remains in force, the Executive Branch is bound by it, and
indeed the United States, as the sovereign composed of the three branches, is bound to
respect and to enforce it. Moreover, the delegation of authority to the Special Prosecutor in
this case is not an ordinary delegation by the Attorney General to a subordinate officer: with
the authorization of the President, the Acting Attorney General provided in the regulation
that the Special Prosecutor was not to be removed without the "consensus" of eight
designated leaders of Congress. N 8, supra.
The demands of and the resistance to the subpoena present an obvious controversy in the
ordinary sense, but that alone is not sufficient to meet constitutional standards. In the
constitutional sense, controversy means more than disagreement and conflict; rather it
means the kind of controversy courts traditionally resolve. Here

Page 418 U. S. 697

at issue is the production or nonproduction of specified evidence deemed by the Special
Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one
official of the Executive Branch within the scope of his express authority; it is resisted by the
Chief Executive on the ground of his duty to preserve the confidentiality of the
communications of the President. Whatever the correct answer on the merits, these issues
are "of a type which are traditionally justiciable." United States v. ICC, 337 U.S. at 337 U. S.
430. The independent Special Prosecutor, with his asserted need for the subpoenaed
material in the underlying criminal prosecution, is opposed by the President, with his
steadfast assertion of privilege against disclosure of the material. This setting assures there
is
"that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions."
Baker v. Carr, 369 U.S. at 369 U. S. 204. Moreover, since the matter is one arising in the
regular course of a federal criminal prosecution, it is within the traditional scope of Art. III
power. Id. at 369 U. S. 198.
In light of the uniqueness of the setting in which the conflict arises, the fact that both parties
are officer of the Executive Branch cannot be viewed as a barrier to justiciability. It would be
inconsistent with the applicable law and regulation, and the unique facts of this case, to
conclude other than that the Special Prosecutor has standing to bring this action, and that a
justiciable controversy is presented for decision.
III
RULE 17(c)
The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to
satisfy the requirements of Fed.Rule Crim.Proc. 17(c), which governs
Page 418 U. S. 698
the issuance of subpoenas duces tecum in federal criminal proceedings. If we sustained this
challenge, there would be no occasion to reach the claim of privilege asserted with respect
to the subpoenaed material. Thus, we turn to the question whether the requirements of Rule
17(c) have been satisfied. See Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U.
S. 61, 304 U. S. 64 (1938); Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346-347 (1936)
(Brandeis, J., concurring).
Rule 17(c) provides:
"A subpoena may also command the person to whom it is directed to produce the books,
papers, documents or other objects designated therein. The court on motion made promptly
may quash or modify the subpoena if compliance would be unreasonable or oppressive. The
court may direct that books, papers, documents or objects designated in the subpoena be
produced before the court at a time prior to the trial or prior to the time when they are to be
offered in evidence and may upon their production permit the books, papers, documents or
objects or portions thereof to be inspected by the parties and their attorneys."
A subpoena for documents may be quashed if their production would be "unreasonable or
oppressive," but not otherwise. The leading case in this Court interpreting this standard is
Bowman Dairy Co. v. United States, 341 U. S. 214 (1951). This case recognized certain

fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not
intended to provide a means of discovery for criminal cases, id. at 341 U. S. 220; (2) its chief
innovation was to expedite the trial by providing a time and place before trial for the
inspection of
Page 418 U. S. 699
subpoenaed materials, [Footnote 11] ibid. As both parties agree, cases decided in the wake
of Bowman have generally followed Judge Weinfeld's formulation in United States v. Iozia, 13
F.R.D. 335, 338 (SDNY 1952), as to the required showing. Under this test, in order to require
production prior to trial, the moving party must show: (1) that the documents are evidentiary
[Footnote 12] and relevant; (2) that they are not otherwise procurable reasonably in advance
of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial
without such production and inspection in advance of trial, and that the failure to obtain
such inspection may tend unreasonably to delay the trial; and (4) that
Page 418 U. S. 700
the application is made in good faith and is not intended as a general "fishing expedition."
Against this background, the Special Prosecutor, in order to carry his burden, must clear
three hurdles: (1) relevancy; (2) admissibility; (3) specificity. Our own review of the record
necessarily affords a less comprehensive view of the total situation than was available to the
trial judge, and we are unwilling to conclude that the District Court erred in the evaluation of
the Special Prosecutor's showing under Rule 17(c). Our conclusion is based on the record
before us, much of which is under seal. Of course, the contents of the subpoenaed tapes
could not at that stage be described fully by the Special Prosecutor, but there was a
sufficient likelihood that each of the tapes contains conversations relevant to the offenses
charged in the indictment. United States v. Gross, 24 F.R.D. 138 (SDNY 1959). With respect
to many of the tapes, the Special Prosecutor offered the sworn testimony or statements of
one or more of the participants in the conversations as to what was said at the time. As for
the remainder of the tapes, the identity of the participants and the time and place of the
conversations, taken in their total context, permit a rational inference that at least part of
the conversations relate to the offenses charged in the indictment.
We also conclude there was a sufficient preliminary showing that each of the subpoenaed
tapes contains evidence admissible with respect to the offenses charged in the indictment.
The most cogent objection to the admissibility of the taped conversations here at issue is
that they are a collection of out-of-court statements by declarants who will not be subject to
cross-examination, and that the statements are therefore inadmissible hearsay. Here,
however, most of the tapes apparently contain conversations
Page 418 U. S. 701
to which one or more of the defendant named in the indictment were party. The hearsay rule
does not automatically bar all out-of-court statements by a defendant in a criminal case.
[Footnote 13] Declarations by one defendant may also be admissible against other
defendant upon a sufficient showing, by independent evidence, [Footnote 14] of a
conspiracy among one or more other defendants and the declarant and if the declarations at
issue were in furtherance of that conspiracy. The same is true of declarations of
coconspirators who are not defendants in the case on trial. Dutton v. Evans, 400 U. S. 74,
400 U. S. 81 (1970). Recorded conversations may also be admissible for the limited purpose
of impeaching the credibility of any defendant who testifies or any other coconspirator who
testifies. Generally, the need for evidence to impeach witnesses is insufficient to require its
production in advance of trial. See, e.g., United States v. Carter, 15 F.R.D. 367,

Page 418 U. S. 702

371 (DC 1954). Here, however, there are other valid potential evidentiary uses for the same
material, and the analysis and possible transcription of the tapes may take a significant
period of time. Accordingly, we cannot conclude that the District Court erred in authorizing
the issuance of the subpoena duces tecum.
Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the
sound discretion of the trial court, since the necessity for the subpoena most often turns
upon a determination of factual issues. Without a determination of arbitrariness or that the
trial court finding was without record support, an appellate court will not ordinarily disturb a
finding that the applicant for a subpoena complied with Rule 17(c). See, e.g., Sue v. Chicago
Transit Authority, 279 F.2d 416, 419 (CA7 1960); Shotkin v. Nelson, 146 F.2d 402 (CA10
1944).
In a case such as this, however, where a subpoena is directed to a President of the United
States, appellate review, in deference to a coordinate branch of Government, should be
particularly meticulous to ensure that the standards of Rule 17(c) have been correctly
applied. United States v. Burr, 25 F.Cas. 30, 34 (No. 14,692d) (CC Va. 1807). From our
examination of the materials submitted by the Special Prosecutor to the District Court in
support of his motion for the subpoena, we are persuaded that the District Court's denial of
the President's motion to quash the subpoena was consistent with Rule 17(c). We also
conclude that the Special Prosecutor has made a sufficient showing to justify a subpoena for
production before trial. The subpoenaed materials are not available from any other source,
and their examination and processing should not await trial in the circumstances shown.
Bowman Dairy Co. v. United States, 341 U. S. 214 (1951); United States v. Iozia, 13 F.R.D.
335 (SDNY 1952).
Page 418 U. S. 703
IV
THE CLAIM OF PRIVILEGE A
Having determined that the requirements of Rule 17(c) were satisfied, we turn to the claim
that the subpoena should be quashed because it demands "confidential conversations
between a President and his close advisors that it would be inconsistent with the public
interest to produce." App. 48a. The first contention is a broad claim that the separation of
powers doctrine precludes judicial review of a President's claim of privilege. The second
contention is that, if he does not prevail on the claim of absolute privilege, the court should
hold as a matter of constitutional law that the privilege prevails over the subpoena duces
tecum.
In the performance of assigned constitutional duties, each branch of the Government must
initially interpret the Constitution, and the interpretation of its powers by any branch is due
great respect from the others. The President's counsel, as we have noted, reads the
Constitution as providing an absolute privilege of confidentiality for all Presidential
communications. Many decisions of this Court, however, have unequivocally reaffirmed the
holding of Marbury v. Madison, 1 Cranch 137 (1803), that "[i]t is emphatically the province
and duty of the judicial department to say what the law is." Id. at 5 U. S. 177. No holding of
the Court has defined the scope of judicial power specifically relating to the enforcement of
a subpoena for confidential Presidential communications for use in a criminal prosecution,
but other exercises of power by the Executive Branch and the Legislative Branch have been

found invalid as in conflict with the Constitution. Powell v. McCormack, 395 U. S. 486 (1969);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). In a
Page 418 U. S. 704
series of cases, the Court interpreted the explicit immunity conferred by express provisions
of the Constitution on Members of the House and Senate by the Speech or Debate Clause,
U.S.Const. Art. I, 6. Doe v. McMillan, 412 U. S. 306 (1973); Gravel v. United States, 408 U.
S. 606 (1972); United States v. Brewster, 408 U. S. 501 (1972); United States v. Johnson 383
U. S. 169 (1966). Since this Court has consistently exercised the power to construe and
delineate claims arising under express powers, it must follow that the Court has authority to
interpret claims with respect to powers alleged to derive from enumerated powers.
Our system of government
"requires that federal courts on occasion interpret the Constitution in a manner at variance
with the construction given the document by another branch."
Powell v. McCormack, supra, at 395 U. S. 549. And in Baker v. Carr, 369 U.S. at 369 U. S.
211, the Court stated:
"Deciding whether a matter has in any measure been committed by the Constitution to
another branch of government, or whether the action of that branch exceeds whatever
authority has been committed, is itself a delicate exercise in constitutional interpretation,
and is a responsibility of this Court as ultimate interpreter of the Constitution."
Notwithstanding the deference each branch must accord the others, the "judicial Power of
the United States" vested in the federal courts by Art. III, 1, of the Constitution can no
more be shared with the Executive Branch than the Chief Executive, for example, can share
with the Judiciary the veto power, or the Congress share with the Judiciary the power to
override a Presidential veto. Any other conclusion would be contrary to the basic concept of
separation of powers and the checks and balances that flow from the scheme of a tripartite
government. The Federalist, No. 47, p. 313 (S. Mittell ed.
Page 418 U. S. 705
1938). We therefore reaffirm that it is the province and duty of this Court "to say what the
law is" with respect to the claim of privilege presented in this case. Marbury v. Madison,
supra at 5 U. S. 177.
B
In support of his claim of absolute privilege, the President's counsel urges two grounds, one
of which is common to all governments and one of which is peculiar to our system of
separation of powers. The first ground is the valid need for protection of communications
between high Government officials and those who advise and assist them in the
performance of their manifold duties; the importance of this confidentiality is too plain to
require further discussion. Human experience teaches that those who expect public
dissemination of their remarks may well temper candor with a concern for appearances and
for their own interests to the detriment of the decisionmaking process. [Footnote 15]
Whatever the nature of the privilege of confidentiality of Presidential communications in the
exercise of Art. II powers, the privilege can be said to derive from the supremacy of each
branch within its own assigned area of constitutional duties. Certain powers and privileges
flow from the nature of enumerated powers; [Footnote 16] the protection of the
confidentiality of

Page 418 U. S. 706

Presidential communications has similar constitutional underpinnings.
The second ground asserted by the President's counsel in support of the claim of absolute
privilege rests on the doctrine of separation of powers. Here it is argued that the
independence of the Executive Branch within its own sphere, Humphrey's Executor v. United
States, 295 U. S. 602, 295 U. S. 629-630 (1935); Kilbourn v. Thompson, 103 U. S. 168, 103 U.
S. 190-191 (1881), insulates a President from a judicial subpoena in an ongoing criminal
prosecution, and thereby protects confidential Presidential communications.
However, neither the doctrine of separation of powers nor the need for confidentiality of
high-level communications, without more, can sustain an absolute, unqualified Presidential
privilege of immunity from judicial process under all circumstances. The President's need for
complete candor and objectivity from advisers calls for great deference from the courts.
However, when the privilege depends solely on the broad, undifferentiated claim of public
interest in the confidentiality of such conversations, a confrontation with other values arises.
Absent a claim of need to protect military, diplomatic, or sensitive national security secrets,
we find it difficult to accept the argument that even the very important interest in
confidentiality of Presidential communications is significantly diminished by production of
such material for in camera inspection with all the protection that a district court will be
obliged to provide.
Page 418 U. S. 707
The impediment that an absolute, unqualified privilege would place in the way of the
primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would
plainly conflict with the function of the courts under Art. III. In designing the structure of our
Government and dividing and allocating the sovereign power among three co-equal
branches, the Framers of the Constitution sought to provide a comprehensive system, but
the separate powers were not intended to operate with absolute independence.
"While the Constitution diffuses power the better to secure liberty, it also contemplate that
practice will integrate the dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but reciprocity."
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 343 U. S. 635 (Jackson, J., concurring).
To read the Art. II powers of the President as providing an absolute privilege as against a
subpoena essential to enforcement of criminal statutes on no more than a generalized claim
of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would
upset the constitutional balance of "a workable government" and gravely impair the role of
the courts under Art. III.
C.
Since we conclude that the legitimate needs of the judicial process may outweigh
Presidential privilege, it is necessary to resolve those competing interests in a manner that
preserves the essential functions of each branch. The right and indeed the duty to resolve
that question does not free the Judiciary from according high respect to the representations
made on behalf of the President. United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No.
14,694) (CC Va. 1807).
Page 418 U. S. 708

The expectation of a President to the confidentiality of his conversations and

correspondence, like the claim of confidentiality of judicial deliberations, for example, has all
the values to which we accord deference for the privacy of all citizens and, added to those
values, is the necessity for protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him
must be free to explore alternatives in the process of shaping policies and making decisions,
and to do so in a way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of Government, and inextricably rooted in the
separation of powers under the Constitution. [Footnote 17] In Nixon v. Sirica, 159
U.S.App.D.C. 58, 487 F.2d 700 (1973), the Court of Appeals held that such Presidential
communications are "presumptively privileged," id. at 75, 487 F.2d at 717, and this position
is accepted by both parties in the present litigation. We agree with Mr. Chief Justice
Marshall's observation, therefore, that "[i]n no case of his kind would a court be required to
proceed against the president as against an ordinary individual." United States v. Burr, 25
F.Cas. at 192.
But this presumptive privilege must be considered in light of our historic commitment to the
rule of law. This
Page 418 U. S. 709
is nowhere more profoundly manifest than, in our view, that "the twofold aim [of criminal
justice] is that guilt shall not escape or innocence suffer." Berger v. United States, 295 U.S.
at 295 U. S. 88. We have elected to employ an adversary system of criminal justice in which
the parties contest all issues before a court of law. The need to develop all relevant facts in
the adversary system is both fundamental and comprehensive. The ends of criminal justice
would be defeated if judgments were to be founded on a partial or speculative presentation
of the facts. The very integrity of the judicial system and public confidence in the system
depend on full disclosure of all the facts, within the framework of the rules of evidence. To
ensure that justice is done, it is imperative to the function of courts that compulsory process
be available for the production of evidence needed either by the prosecution or by the
defense.
Only recently the Court restated the ancient proposition of law, albeit in the context of a
grand jury inquiry, rather than a trial,
"that 'the public . . . has a right to every man's evidence,' except for those persons protected
by a constitutional, common law, or statutory privilege, United States v. Bryan, 339 U.S.
[323, 339 U. S. 331 (1950)]; Blackmer v. United States, 284 U. S. 421, 284 U. S. 438 (1932). .
. ."
Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 688 (1972). The privileges referred to by the
Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth
Amendment to the Constitution provides that no man "shall be compelled in any criminal
case to be a witness against himself." And, generally, an attorney or a priest may not be
required to disclose what has been revealed in professional confidence. These and other
interests are recognized in law by privileges
Page 418 U. S. 710
against forced disclosure, established in the Constitution, by statute, or at common law.
Whatever their origins, these exceptions to the demand for every man's evidence are not
lightly created nor expansively construed, for they are in derogation of the search for truth.
[Footnote 18]

In this case, the President challenges a subpoena served on him as a third party requiring
the production of materials for use in a criminal prosecution; he does so on the claim that he
has a privilege against disclosure of confidential communications. He does not place his
claim of privilege on the ground they are military or diplomatic secrets. As to these areas of
Art. II duties, the courts have traditionally shown the utmost deference to Presidential
responsibilities. In C. & S. Air Lines v. Waterman S.S. Corp., 333 U. S. 103, 333 U. S. 111
(1948), dealing with Presidential authority involving foreign policy considerations, the Court
said:
"The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs,
has available intelligence services whose reports are not and ought not to be published to
the world. It would be intolerable that courts, without the relevant information, should
review and perhaps nullify actions of the Executive taken on information properly held
secret."
In United States v. Reynolds, 345 U. S. 1 (1953), dealing
Page 418 U. S. 711
with a claimant's demand for evidence in a Tort Claims Act case against the Government,
the Court said:
"It may be possible to satisfy the court, from all the circumstances of the case, that there is
a reasonable danger that compulsion of the evidence will expose military matters which, in
the interest of national security, should not be divulged. When this is the case, the occasion
for the privilege is appropriate, and the court should not jeopardize the security which the
privilege is meant to protect by insisting upon an examination of the evidence, even by the
judge alone, in chambers."
Id. at 345 U. S. 10. No case of the Court, however, has extended this high degree of
deference to a President's generalized interest in confidentiality. Nowhere in the
Constitution, as we have noted earlier, is there any explicit reference to a privilege of
confidentiality, yet to the extent this interest relates to the effective discharge of a
President's powers, it is constitutionally based.
The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial
the right "to be confronted with the witnesses against him" and "to have compulsory process
for obtaining witnesses in his favor." Moreover, the Fifth Amendment also guarantees that no
person shall be deprived of liberty without due process of law. It is the manifest duty of the
courts to vindicate those guarantees, and to accomplish that it is essential that all relevant
and admissible evidence be produced.
In this case, we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President's responsibilities against the
inroads of such a privilege on the fair
Page 418 U. S. 712
administration of criminal justice. [Footnote 19] The interest in preserving confidentiality is
weighty indeed, and entitled to great respect. However, we cannot conclude that advisers
will be moved to temper the candor of their remarks by the infrequent occasions of
disclosure because of the possibility that such conversations will be called for in the context
of a criminal prosecution. [Footnote 20]

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably
relevant in a criminal trial would cut deeply into the guarantee of due process of law and
gravely impair the basic function of the court. A President's acknowledged need for
confidentiality
Page 418 U. S. 713
in the communications of his office is general in nature, whereas the constitutional need for
production of relevant evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of justice. Without access to
specific facts, a criminal prosecution may be totally frustrated. The President's broad interest
in confidentiality of communications will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending criminal cases.
We conclude that, when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized interest in confidentiality, it
cannot prevail over the fundamental demands of due process of law in the fair
administration of criminal justice. The generalized assertion of privilege must yield to the
demonstrated, specific need for evidence in a pending criminal trial.
D
We have earlier determined that the District Court did not err in authorizing the issuance of
the subpoena. If a President concludes that compliance with a subpoena would be injurious
to the public interest, he may properly, as was done here, invoke a claim of privilege on the
return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it
became the further duty of the District Court to treat the subpoenaed material as
presumptively privileged and to require the Special Prosecutor to demonstrate that the
Presidential material was "essential to the justice of the [pending criminal] case." United
States v. Burr, 25 F.Cas. at 192. Here, the District Court treated the material as
presumptively privileged, proceeded to find that the Special
Page 418 U. S. 714
Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in
camera examination of the subpoenaed material. On the basis of our examination of the
record, we are unable to conclude that the District Court erred in ordering the inspection.
Accordingly, we affirm the order of the District Court that subpoenaed materials be
transmitted to that court. We now turn to the important question of the District Court's
responsibilities in conducting the in camera examination of Presidential materials or
communications delivered under the compulsion of the subpoena duces tecum.
E
Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of the
issues raised by the petitions for certiorari. Those issues now having been disposed of, the
matter of implementation will rest with the District Court.
"[T]he guard, furnished to [the President] to protect him from being harassed by vexatious
and unnecessary subpoenas, is to be looked for in the conduct of a [district] court after
those subpoenas have issued; not in any circumstance which is to precede their being
issued."

United States v. Burr, 25 F.Cas. at 34. Statements that meet the test of admissibility and
relevance must be isolated; all other material must be excised. At this stage, the District
Court is not limited to representations of the Special Prosecutor as to the evidence sought by
the subpoena; the material will be available to the District Court. It is elementary that in
camera inspection of evidence is always a procedure calling for scrupulous protection
against any release or publication of material not found by the court, at that stage, probably
admissible in evidence and relevant to the issues of the trial for which it is sought. That
being true of an ordinary situation, it is obvious that the District Court has
Page 418 U. S. 715
a very heavy responsibility to see to it that Presidential conversations, which are either not
relevant or not admissible, are accorded that high degree of respect due the President of the
United States. Mr. Chief Justice Marshall, sitting as a trial judge in the Burr case, supra, was
extraordinarily careful to point out that
"[i]n no case of this kind would a court be required to proceed against the president as
against an ordinary individual."
25 F.Cas. at 192. Marshall's statement cannot be read to mean in any sense that a President
is above the law, but relates to the singularly unique role under Art. II of a President's
communications and activities, related to the performance of duties under that Article.
Moreover, a President's communications and activities encompass a vastly wider range of
sensitive material than would be true of any "ordinary individual." It is therefore necessary
[Footnote 21] in the public interest to afford Presidential confidentiality the greatest
protection consistent with the fair administration of justice. The need for confidentiality even
as to idle conversations with associates in which casual reference might be made concerning
political leaders within the country or foreign statesmen is too obvious to call for further
treatment. We have no doubt that the District Judge will at all times accord to Presidential
records that high degree of deference suggested in United States v. Burr, supra, and will
discharge his responsibility to see to
Page 418 U. S. 716
it that, until released to the Special Prosecutor, no in camera material is revealed to anyone.
This burden applies with even greater force to excised material; once the decision is made to
excise, the material is restored to its privileged status, and should be returned under seal to
its lawful custodian.
Since this matter came before the Court during the pendency of a criminal prosecution, and
on representations that time is of the essence, the mandate shall issue forthwith.
Affirmed.
MR. JUSTICE REHNQUIST took no part in the consideration or decision of these cases.
* Together with No. 73-1834, Nixon, President of the United States v. United States, also on
certiorari before judgment to the same court.
[Footnote 1]
See 28 U.S.C. 1254(1) and 2101(e) and our Rule 20. See, e.g., Youngstown Sheet & Tube
Co. v. Sawyer, 343 U. S. 579 (1952); United States v. United Mine Workers, 330 U. S. 258
(1947); Carter v. Carter Coal Co, 298 U. S. 238 (1936); Rickert Rice Mills v. Fontenot, 297 U.

S. 110 (1936); Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 (1935); Norman v.
Baltimore & Ohio R. Co, 294 U. S. 240 (1935)
[Footnote 2]
The cross-petition in No. 73-1824 raised the issue whether the grand jury acted within its
authority in naming the President as an unindicted coconspirator. Since we find resolution of
this issue unnecessary to resolution of the question whether the claim of privilege is to
prevail, the cross-petition for certiorari is dismissed as improvidently granted and the
remainder of this opinion is concerned with the issues raised in No. 73-1766. On June 19,
1974, the President's counsel moved for disclosure and transmittal to this Court of all
evidence presented to the grand jury relating to its action in naming the President as an
unindicted coconspirator. Action on this motion was deferred pending oral argument of the
case, and is now denied.
[Footnote 3]
The seven defendants were John N. Mitchell, H. R. Haldeman, John D. Ehrlichman, Charles W.
Colson, Robert C. Mardian, Kenneth W. Parkinson, and Gordon Strachan. Each has occupied
either a position of responsibility on the White House Staff or a position with the Committee
for the Re-election of the President. Colson entered a guilty plea on another charge, and is
no longer a defendant.
[Footnote 4]
The President entered a special appearance in the District Court on June 6 and requested
that court to lift its protective order regarding the naming of certain individuals as
coconspirators and to any additional extent deemed appropriate by the Court. This motion of
the President was based on the ground that the disclosures to the news media made the
reasons for continuance of the protective order no longer meaningful. On June 7, the District
Court removed its protective order and, on June 10, counsel for both parties jointly moved
this Court to unseal those parts of the record which related to the action of the grand jury
regarding the President. After receiving a statement in opposition from the defendants, this
Court denied that motion on June 15, 1974, except for the grand jury's immediate finding
relating to the status of the President as an unindicted coconspirator. 417 U.S. 960.
[Footnote 5]
The specific meetings and conversations are enumerated in a schedule attached to the
subpoena. App. 42a-46a.
[Footnote 6]
At the joint suggestion of the Special Prosecutor and counsel for the President, and with the
approval of counsel for the defendants, further proceedings in the District Court were held in
camera.
[Footnote 7]
The parties have suggested that this Court has jurisdiction on other grounds. In view of our
conclusion that there is jurisdiction under 28 U.S.C. 1254(1) because the District Court's
order was appealable, we need not decide whether other jurisdictional vehicles are
available.
[Footnote 8]

The regulation issued by the Attorney General pursuant to his statutory authority vests in
the Special Prosecutor plenary authority to control the course of investigations and litigation
related to
"all offenses arising out of the 1972 Presidential Election for which the Special Prosecutor
deems it necessary and appropriate to assume responsibility, allegations involving the
President, members of the White House staff, or Presidential appointees, and any other
matters which he consents to have assigned to him by the Attorney General."
38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805. In particular, the Special Prosecutor
was given full authority, inter alia, "to contest the assertion of Executive Privilege' . . . and
handl[e] all aspects of any cases within his jurisdiction." Id. at 30739. The regulation then
goes on to provide:
"In exercising this authority, the Special Prosecutor will have the greatest degree of
independence that is consistent with the Attorney General's statutory accountability for all
matters falling within the jurisdiction of the Department of Justice. The Attorney General will
not countermand or interfere with the Special Prosecutor's decisions or actions. The Special
Prosecutor will determine whether and to what extent he will inform or consult with the
Attorney General about the conduct of his duties and responsibilities. In accordance with
assurances given by the President to the Attorney General that the President will not
exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit
the independence that he is hereby given, the Special Prosecutor will not be removed from
his duties except for extraordinary improprieties on his part and without the President's first
consulting the Majority and the Minority Leaders and Chairmen and ranking Minority
Members of the Judiciary Committees of the Senate and House of Representatives and
ascertaining that their consensus is in accord with his proposed action."
[Footnote 9]
That this was the understanding of Acting Attorney General Robert Bork, the author of the
regulation establishing the independence of the Special Prosecutor, is shown by his
testimony before the Senate Judiciary Committee:
"Although it is anticipated that Mr. Jaworski will receive cooperation from the White House in
getting any evidence he feels he needs to conduct investigations and prosecutions, it is
clear and understood on all sides that he has the power to use judicial processes to pursue
evidence if disagreement should develop."
Hearings on the Special Prosecutor before the Senate Committee on the Judiciary, 93d
Cong., 1st Sess., pt. 2, p. 450 (1973). Acting Attorney General Bork gave similar assurances
to the House Subcommittee on Criminal Justice. Hearings on H. J Res. 784 and H.R. 10937
before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 93d
Cong., 1st Sess., 266 (1973). At his confirmation hearings, Attorney General William Saxbe
testified that he shared Acting Attorney General Bork's views concerning the Special
Prosecutor's authority to test any claim of executive privilege in the courts. Hearings on the
Nomination of William B. Saxbe to be Attorney General before the Senate Committee on the
Judiciary, 93d Cong., 1st Sess., 9 (1973).
[Footnote 10]
At his confirmation hearings, Attorney General William Saxbe testified that he agreed with
the regulation adopted by Acting Attorney General Bork, and would not remove the Special

Prosecutor except for "gross impropriety." Id. at 5-6, 8-10. There is no contention here that
the Special Prosecutor is guilty of any such impropriety.
[Footnote 11]
The Court quoted a statement of a member of the advisory committee that the purpose of
the Rule was to bring documents into court
"in advance of the time that they are offered in evidence, so that they may then be
inspected in advance, for the purpose . . . of enabling the party to see whether he can use
[them] or whether he wants to use [them]."
341 U.S. at 341 U. S. 220 n. 5. The Manual for Complex and Multidistrict Litigation published
by the Federal Judicial Center recommends that use of Rule 17(c) be encouraged in complex
criminal cases in order that each party may be compelled to produce its documentary
evidence well in advance of trial and in advance of the time it is to be offered. P. 150.
[Footnote 12]
The District Court found here that it was faced with
"the more unusual situation . . . where the subpoena, rather than being directed to the
government by defendants, issues to what, as a practical matter, is a third party."
United States v. Mitchell, 377 F.Supp. 1326, 1330 (DC 1974). The Special Prosecutor
suggests that the evidentiary requirement of Bowman Dairy Co. and Iozia does not apply in
its full vigor when the subpoena duces tecum is issued to third parties, rather than to
government prosecutors. Brief for United States 128-129. We need not decide whether a
lower standard exists, because we are satisfied that the relevance and evidentiary nature of
the subpoenaed tapes were sufficiently shown as a preliminary matter to warrant the District
Court's refusal to quash the subpoena.
[Footnote 13]
Such statements are declarations by a party defendant that "would surmount all objections
based on the hearsay rule . . ." and, at least as to the declarant himself, "would be
admissible for whatever inferences" might be reasonably drawn. United States v. Matlock,
415 U. S. 164, 415 U. S. 172 (1974). On Lee v. United States, 343 U. S. 747, 343 U. S. 757
(1952). See also C. McCormick, Evidence 270, pp. 651-652 (2d ed.1972).
[Footnote 14]
As a preliminary matter, there must be substantial, independent evidence of the conspiracy,
at least enough to take the question to the jury. United States v. Vaught, 485 F.2d 320, 323
(CA4 1973); United States v. Hoffa, 349 F.2d 20, 412 (CA6 1965), aff'd on other grounds, 385
U. S. 293 (1966); United States v. Santos, 385 F.2d 43, 45 (CA7 1967), cert. denied, 390 U.S.
954 (1968); United States v. Morton, 483 F.2d 573, 576 (CA8 1973); United States v. Spanos,
462 F.2d 1012, 1014 (CA9 1972); Carbo v. United States, 314 F.2d 718, 737 (CA9 1963), cert.
denied, 377 U.S. 953 (1964). Whether the standard has been satisfied is a question of
admissibility of evidence to be decided by the trial judge.
[Footnote 15]
There is nothing novel about governmental confidentiality. The meetings of the
Constitutional Convention in 1787 were conducted in complete privacy. 1 M. Farrand, The

Records of the Federal Convention of 1787, pp. xi-xxv (1911). Moreover, all records of those
meetings were sealed for more than 30 years after the Convention. See 3 Stat. 475, 15th
Cong., 1st Sess., Res. 8 (1818). Most of the Framers acknowledged that, without secrecy, no
constitution of the kind that was developed could have been written. C. Warren, The Making
of the Constitution 134-139 (1937).
[Footnote 16]
The Special Prosecutor argues that there is no provision in the Constitution for a Presidential
privilege as to the President's communications corresponding to the privilege of Members of
Congress under the Speech or Debate Clause. But the silence of the Constitution on this
score is not dispositive.
"The rule of constitutional interpretation announced in McCulloch v. Maryland, 4 Wheat. 316,
that that which was reasonably appropriate and relevant to the exercise of a granted power
was to be considered as accompanying the grant, has been so universally applied that it
suffices merely to state it."
Marshall v. Gordon, 243 U. S. 521, 243 U. S. 537 (1917).
[Footnote 17]
"Freedom of communication vital to fulfillment of the aims of wholesome relationships is
obtained only by removing the specter of compelled disclosure. . . . [G]overnment . . . needs
open but protected channels for the kind of plain talk that is essential to the quality of its
functioning."
Carl Zeiss Stiftung v. v. E. B. Carl Zeis, Jena, 4 F.R.D. 318, 325 (DC 1966). See Nixon v. Sirica,
159 U.S.App.D.C. 58, 71, 487 F.2d 700, 713 (1973); Kaiser Aluminum & Chem. Corp. v.
United States, 141 Ct.Cl. 38, 157 F.Supp. 939 (1958) (Reed, J.); The Federalist, No. 64 (S.
Mittell ed.1938).
[Footnote 18]
Because of the key role of the testimony of witnesses in the judicial process, courts have
historically been cautious about privileges. Mr. Justice Frankfurter, dissenting in Elkins v.
United States, 364 U. S. 206, 364 U. S. 234 (1960), said of this:
"Limitations are properly placed upon the operation of this general principle only to the very
limited extent that permitting a refusal to testify or excluding relevant evidence has a public
good transcending the normally predominant principle of utilizing all rational means for
ascertaining truth."
[Footnote 19]
We are not here concerned with the balance between the President's generalized interest in
confidentiality and the need for relevant evidence in civil litigation, nor with that between
the confidentiality interest and congressional demands for information, nor with the
President's interest in preserving state secrets. We address only the conflict between the
President's assertion of a generalized privilege of confidentiality and the constitutional need
for relevant evidence in criminal trials.
[Footnote 20]

Mr. Justice Cardozo made this point in an analogous context. Speaking for a unanimous
Court in Clark v. United States, 289 U. S. 1 (1933), he emphasized the importance of
maintaining the secrecy of the deliberations of a petit jury in a criminal case.
"Freedom of debate might be stifled and independence of thought checked if jurors were
made to feel that their arguments and ballots were to be freely published to the world."
Id. at 289 U. S. 13. Nonetheless, the Court also recognized that isolated inroads on
confidentiality designed to serve the paramount need of the criminal law would not vitiate
the interests served by secrecy:
"A juror of integrity and reasonable firmness will not fear to speak his mind if the
confidences of debate are barred to the ears of mere impertinence or malice. He will not
expect to be shielded against the disclosure of his conduct in the event that there is
evidence reflecting upon his honor. The chance that now and then there may be found some
timid soul who will take counsel of his fears and give way to their repressive power is too
remote and shadowy to shape the course of justice."
Id. at 289 U. S. 16.
[Footnote 21]
When the subpoenaed material is delivered to the District Judge in camera, questions may
arise as to the excising of parts, and it lies within the discretion of that court to seek the aid
of the Special Prosecutor and the President's counsel for in camera consideration of the
validity of particular excision, whether the basis of excision is relevancy or admissibility or
under such cases as United States v. Reynolds, 345 U. S. 1 (1953), or C. & S. Air Line v.
Waterman S.S. Corp., 333 U. S. 103 (1948).

BANCO FILIPINO, petitioner,

vs.
MONETARY BOARD, ET AL., respondents.
Ramon Quisumbing and Norberto Quisumbing and Emmanuel Pelaez for petitioner.
Inigo B. Regalado, Jr. counsel for Central Bank.
Sycip, Salazar, Feliciano & Hernandez for respondents.
RESOLUTION
On November 4, 1985, Petitioner Bank filed in the instant case a "Motion to Pay Back
Salaries to All BF Officers and Employees from February to August 29, 1985" in connection
with its "Opposition to Respondents" Motion for Reconsideration or for Clarification of the
Resolution of the Court En Banc of October 8, 1985." On November 7, 1985, this Court
referred said motion to pay back salaries to Branch 136 (Judge Ricardo Francisco, presiding)

of the Makati Regional Trial Court, which this Court had earlier directed under our Resolution
of October 8, 1985 issued in G.R. No. 77054, to conduct hearings on the matter of the
closure of petitioner Bank and its alleged pre-planned liquidation.
On January 22, 1986, said Regional Trial Court, after considering the petitioner's motion of
November 4, 1985, the respondents' opposition thereto dated January 15, 1986; the
petitioner's Reply dated January 16, 1986, and the respondents' Rejoinder dated January 20,
1986, issued an order directing the respondents herein "to pay all officers and employees of
petitioner their back salaries and wages corresponding to the period from February to
August 29, 1985."
On February 4, 1986, respondents herein filed with this Court an "Appeal from, or Petition to
Set Aside, order to Pay Back Salaries dated 22 January 1986" praying for the reversal and
setting aside of the aforestated trial court's Order dated January 22, 1986. This was formally
opposed by Petitioner when it filed its "Answer to Appeal (re: back salaries)" on February 26,
1986. A month later, on March 26, 1986, respondents filed their "Reply to the Answer" which
petitioner traversed in a "Rejoinder to the Reply" dated April 2, 1986.
In a normal situation, no controversy would be expected in the matter of the payment of
said back salaries because in the instant case, the party praying for the same is the
employer Bank. The attendant circumstances here present have, however, created a
peculiar situation. There is resistance to the claim because the management of the assets of
the Bank has been transferred to the Respondents' Receiver who perceived that the
directive to pay back salaries after closure of the Bank would be dissipation of the banks'
assets to the prejudice of its various creditors.
There is, however, in this case a significant matter that deserves consideration of this Court
and which must be viewed from the stand-point of equity. What stands out is that, regardless
of whether the employees of Banco Filipino worked or not after January 25, 1985, there is the
uncontested manifestation found in BF's Answer to the Appeal, dated February 26, 1986
(Vol. IV of Case Records) that:
2.
In the fact the receiver/liquidator Carlota Valenzuela had paid Union employees of
petitioner BF back salaries for no work from January 25, 1985 up to June, 1985. .. (Emphasis
supplied)
All employees, thereto, of petitioner Banco Filipino who have not yet received their back
salaries corresponding to the period from January 25, 1985 up to June, 1985 manifestly
deserve and ought to be similarly paid by the respondent Monetary Board. It is but fair that
the issue whether or not the employees of petitioner Bank had actually worked during said
period should now be discounted considering this voluntary act of respondent Monetary
Board which would remove by estoppel any impediment to the receipt by all bank
employees of their back salaries from January 25, 1985 up to June, 1985, assuming that
some of them have not yet received the same.
As the remaining period from June, 1985 to August, 1985, involves but a minimal period only
of two (2) months, and considering the unfortunate plight of the numerous employees who
now invoke the symphathetic concern of this Court, and inasmuch as the appealed Order for
the payment of back salaries is only for a limited period or up to August, 1985, the appealed
order of November 7, 1985 may be sustained.
Petitioner BF and its stockholders have long put on record their consent to this patment of
back salaries of its separated officers and employees. It is also averred that BF intends to
reopen its bank and branches, and the payment of back salaries to its employees, no less
would help in the preservation of its personnel which is the bank's most important assest,

apart from doing justice to those aggrieved employees. It is mentioned that the Central Bank
Liquidator has now more than a billion pesos in cash of Banco Filipino since it continued to
receive payments from BF borrowers some P1.5 million a day. It is also said that with the
deposits of petitioner BF with the Bank of PI, there is money sufficient to allow the
withdrawal of the sums needed to pay the salaries of the employees who have been now out
of work for over a year. Apparently, no substantial prejudice for the payment of the
distressed employees of the bank for only a specified limited period until the other issues in
the consolidated consideration.
WHEREFORE, ruling that the Order of November 7, 1985 of Judge Ricardo Francisco, granting
salary to the officers and employees of Banco Filipino for the period from February, 1985 to
August 29, 1985, may now be deemed moot and academic insofar as it relates to the period
from January 25, 1985 to June, 1985 up to August, 1985, covers but a minimal span of two
(2) months, the Court RESOLVES, for the reasons of equity, to allow the aforestated Order to
remain undisturbed and to DISMISS the appeal therefrom. This Order is immediately held
executory.
Gutierrez Jr., J., took no part.

G.R. No. 70054

July 8, 1986
BANCO FILIPINO vs. MONETARY BOARD
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 70054

July 8, 1986

BANCO FILIPINO, petitioner,

vs.
MONETARY BOARD, ET AL., respondents.
RESOLUTION
Subject of this "Petition to Set Aside Order to Produce Documents dated 17 February 1986"
is the Order of Branch 136, Regional Trial Court, Makati, granting the motion of the petitioner
herein, based on Section 1, Rule 27, of the Rules of Court, for the production, inspection, and
copying of certain papers and records which are claimed as needed by the Petitioner Bank
for the preparation of its comments, objections, and exceptions to the Conservator's report
dated January 8, 1985, and Receiver's Report dated March 19, 1985. The documents now
asked to be produced, inspected, and copied are the following:
(1)
Copies of tapes and transcripts of the Monetary Board (MB) deliberations on the
closure of Banco Filipino (BF) and its meeting on July 27, 1984, and March 22, 1985;
(2)
Copies of the letter and reports of first conservator, Mr. Basilio Estanislao, to the MB
and to Central Bank Governor Jose Fernandez;

(3)
Papers showing computations of all the interests and penalties charged by the CB
against BF;
(4)
Schedule of recommended valuation of reserves per Mr. Tiaoqui's report dated March
19, 1985;
(5)

Adjustment per Annex "C" of Mr. Tiaoqui's report;

(6)
Annexes"A","B",and"C"of the joint report of Mr. Tiaoqui, Mr. Aurellano, and Mrs.
Valenzuela;
(7)

Schedule of devaluation of CB premises of Paseo de Roxas of same report;

(8)
Schedule of BF's realizable assets from P5,159.44 B to P3,909.23 B as of January 25,
1985;
(9)

Documents listed in BF's letter to Mrs. Carlota Valenzuela dated October 25, 1985.

In issuing the challenged order, the court below took the view that the Supreme Court's
resolution referring to it the matters relative to the bank's closure does not preclude the
petitioner from availing of this mode of discovery as an additional means of preparing for the
hearing. It considered the documents sought to be produced as not privileged because these
constitute or contain evidence material to the issues into by the Court. These materials are
said to comprise of records of the administrative proceedings conducted by respondent's
officials and representatives from the inception of and preparation of the challenged reports
and the resolution placing petitioner under receivership and thereafter under liquidation as it
is the regularity and impartiality of these administrative proceedings which are being
assailed by the petitioner, the trial court saw no reason why said documents should be thus
concealed from it.
Respondents Monetary Board and Central Bank take exception to the said order and pray in
their petition before this Court for the reversal and setting aside of the same. The grounds
recited in support of their petition are the following:
(1)
The ratiocination of the trial court is wholly in error because the proceedings before it
do not at all deal with either the administrative proceedings conducted by the respondents
or the regularity and impartiality of the CB actions on BF; it does so simply upon the charge
that no "hearing" was given BF prior to those actions of closure and liquidation. However, no
such prior hearing had been called as none is required by the law and by the Supreme Court
decisions in force to this date (Rural Bank of Lucena, Inc. vs. Arca, 15 SCRA 66, and Rural
Bank of Bato vs. IAC, G.R. 65642, Oct. 15, 1984).
(2)
The tapes and transcripts of the Monetary Board deliberations are confidential
pursuant to Sections 13 and 15 of the Central Bank Act.
Sec. 13. Withdrawal of persons having a personal interest. Whenever any member attending
a meeting of the Monetary Board has a material personal interest, directly or indirectly, in
the discussion or resolution of any given matter, said member shall not participate in the
discussion or resolution of the matter and must retire from the meeting during the
deliberation thereon. The subject matter, when resolved, and the fact that a member had a
personal interest in it, shall be made available to the public. The minutes of the meeting
shall note the withdrawal of the member concerned. (As amended by PD No. 1827).
Sec. 15. Responsibility. Any member of the Monetary Board or officer or employee of the
Central Bank who wilfully violates this Act or who is guilty of gross negligence in the

performance of his duties shall be held liable for any loss or injury suffered by the Bank as a
result of such violation or negligence. Similar responsibility shall apply to the disclosure of
any information of a confidential nature about the discussion or resolutions of the Monetary
Board, except as required in Section 13 of this Act, or about the operations of the Bank, and
to the use of such information for personal gain or to the detriment of the Government, the
Bank or third parties. (As amended by Presidential Decree No. 72). (Italics supplied).
(3)
The Monetary Board deliberations were necessarily held subsequent t the submission
of the CB reports. They did not enter into the making of those reports and can have no
materiality to any question of fact that may be raised in relation to their contents.
On April 16, 1986, Petitioner Banco Filipino filed its Comment on Respondent's petition to set
aside the order for the production of the documents. In said pleading, the petitioner bank
assails the respondent's petition on the following grounds:
(1)
There is no reason why Banco Filipino should not be furnished the documents,
particularly Nos. 3 to 9 of its motion, when these are merely attachments to the Supervision
and Examination Sector, Dept. It (SES) Reports, copies of which were given to it pursuant to
a Supreme Court order.
(2)
The Supreme Court in its referral of October 8, 1985 to the RTC Makati intended full
evidence taking of the proceeding for judicial review of administrative action filed with the
Supreme Court, the trial court being better equipped for evidence taking.
(3)
The respondents cannot claim privilege in refusing to produce the Central Bank
records because it is based only on the generalized interest in confidentiality. Petitioner cites
as a precedent the doctrine established in the case of U.S. vs. Nixon, 418 U.S. 683, 713,
which states that "when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal case is based only on the generalized interest in confidentiality,
it cannot prevail over the fundamental demands of due process of law."
(4)
The requested documents and records of the Central Bank are material and relevant
because BF is entitled to prove from the CB records (a) that Governor Fernandez closed BF
without a MB resolution and without examiner's reports on the financial position of BF; (b)
that a MB resolution was later made to legalize the BF closure but it had no supporting
examiner's report; (c) that the earlier reports did not satisfy respondent Governor Fernandez
and he ordered the examiners and the conservator, Gilberto Teodoro, to "improve" them;
and (d) that the reports were then fabricated.
Petitioner adds that what respondents fear is disclosure of their proceedings because
petitioner has accused the CB governor of (a) covering 51% of its stockholding, (b)
encashing BF securities in trickles as fuel a run, (c) appointing a conservator when the
President ordered the MB to grant petitioner a P 3 Billion credit line, (d) replacing Estanislao
with Gilberto Teodoro when the former wanted to resume normal operations of BF, and (e)
changing the conservatorship to receivership when it appointed Carlota Valenzuela as
receiver again without hearing.
On May 13, 1986, Respondent Monetary Board filed their Reply to Petitioner Bank's
Comment dated April 15, 1986. Respondents argue that:
(1)
The case of U.S. vs. Nixon and the other decisions cited by petitioner are inapplicable
becausea) The authorities cited refer only to a claim of privilege based only on the generalized
interest of confidentiality or on an executive privilege that is merely presumptive. On the

other hand, the so-called MB deliberations are privileged communications pursuant to

Section 21, Rule 130 of the Rules of Court because statements and opinions expressed in the
deliberation of the members of the MB are specifically vested with confidentiality under
Secs. 13 and 15 of the Central Bank Act. The "public interest" requirement for non-disclosure
is evident from the fact that the statute punishes any disclosure of such deliberations.
b)
Petitioner has not in the least shown any relevance or need to produce the alleged
MB deliberations. What petitioner intends to prove are not "issues" raised in the pleadings of
the main petition.
(2) Petitioner is interested, not in discovering evidence, but in practicing oppression by the
forced publication of the MB members' confidential statements at board meetings.
(3) The so-called deliberations of the Monetary Board are in truth merely the individual
statements and expressions of opinion of its members. They are not statements or opinions
that can be imputed to the board itself or to the Central Bank. The transcripts of
stenographic notes on the deliberations of the MB are not official records of the CB; they are
taken merely to assist the Secretary of the MB in the preparation of the minutes of the
meetings. And as advertedly also, the tape recordings are not available as these are used
over and over again.
The motion for the production of the subject documents was filed by petitioner pursuant to
Section 1, Rule 27, of the Rules of Court. It has been held that "a party is ordinarily entitled
to the production of books, documents and papers which are material and relevant to the
establishment of his cause of action or defense" (General Electric Co. vs. Superior Court in
and for Alameda County, 45 C. 2d 879, cited in Martin, Rules of Court, 3rd edition, Vol. 2, p.
104). "The test to be applied by the trial judge in determining the relevancy of documents
and the sufficiency of their description is one of reasonableness and practicability" (Line
Corp. of the Philippines vs. Moran, 59 Phil. 176, 180). "On the ground of public policy, the
rules providing for production and inspection of books and papers do not authorize the
production or inspection of privileged matter, that is, books, papers which because of their
confidential and privileged character could not be received in evidence" (27) CJS 224). "In
passing on a motion for discovery of documents, the courts should be liberal in determining
whether or not documents are relevant to the subject matter of action" (Hercules Powder Co.
vs. Haas Co., U.S. Dist. Ct. Oct. 26, 1944, 9 Fed. Rules Service, 659, cited in Moran,
Comments on the Rules of Court, 1979 Ed. Vol. 2, p. 102). Likewise, "any statute declaring in
general terms that official records are confidential should be liberally construed, to have an
implied exception for disclosure when needed in a court of justice" (Wigmore on Evidence,
Vol. VIII, p. 801, citing the case of Marbury vs. Madison, 1 Cr. 137,143).
In the light of the jurisprudence above-cited, this Court holds that no grave abuse of
discretion was committed by the court below in granting petitioner's motion for the
production of the documents enumerated herein. We accept the view taken by the court
below that the documents are not privileged and that these constitute or contain evidence
material to the issues being inquired into by the Court.
With respect to Items Nos. 3 to 9, these are the annexes to the Supervision and Examination
Sector, Dept. II (SES) Reports submitted to the Central Bank and Monetary Board which were
taken into consideration by said respondents in closing petitioner bank. A copy of the SES
Reports was furnished to the petitioner. We, therefore, fail to see any proper reason why the
annexes thereto should be withheld. Petitioner cannot adequately study and properly
analyze the report without the corresponding annexes. Pertinent and relevant, these could
be useful and even necessary to the preparation by petitioner of its comment, objections
and exceptions to the Conservator's reports and receiver's reports.

Regarding copies of the letter and reports of first Conservator, Mr. Basilio Estanislao, to the
Monetary Board and to Central Bank Governor Fernandez (Item No. 2) these appear relevant
as petitioner has asserted that the above-named Conservator had in fact wanted to resume
normal operations of Banco Filipino but then he was thereafter replaced by Mr. Gilberto
Teodoro. The letter and reports could be favorable or adverse to the case of petitioner but
whatever the result may be, petitioner should be allowed to photocopy the same.
As to the tapes and transcripts of the Monetary Board deliberations on the closure of Banco
Filipino and its meetings on July 27, 1984, and March 22, 1985, (Item No. 1), respondents
contend that "it is obvious from the requirement (Sections 13 and 15 of the Central Bank
Act) that the subject matter (of the deliberations), when resolved. . . shall be made available
to the public but the deliberations themselves are not open to disclosure but are to be kept
in confidence." This Court, however, sees it in a different light. The deliberations may be
confidential but not necessarily absolute and privileged. There is no specific provision in the
Central Bank Act, even in Sections 13 and 15 thereof, which prohibits absolutely the courts
from conducting an inquiry on said deliberations when these are relevant or material to a
matter subject of a suit pending before it. The disclosure is here not intended to obtain
information for personal gain. There is no indication that such disclosure would cause
detriment to the government, to the bank or to third parties. Significantly, it is the bank
itself here that is interested in obtaining what it considers as information useful and
indispensably needed by it to support its position in the matter being inquired to by the
court below.
On the other hand, respondents cite Section 21, Rule 130, Rules of Court which states:
Section 21. Privileged Communications. The following persons cannot testify as to matters
learned in confidence in the following cases:
xxx

xxx

xxx

(e)
A public officer cannot be examined during his term of office or afterwards, as to
communications made to him in official confidence, when the court finds that the public
interest would suffer by disclosure.
But this privilege, as this Court notes, is intended not for the protection of public officers but
for the protection of public interest (Vogel vs. Gruaz 110 U.S. 311 cited in Moran, Comments
on the Rules of Court, 1980 Ed. Vol. 5, p. 211). Where there is no public interest that would
be prejudiced, this invoked rule will not be applicable.
The rule that a public officer cannot be examined as to communications made to him in
official confidence does not apply when there is nothing to show that the public interest
would suffer by the disclosure question. ... ,( Agnew vs. Agnew,'52 SD 472, cited in Martin
Rules of Court of the Philippines, Third Edition, Vol. 5, p. 199).
In the case at bar, the respondents have not established that public interest would suffer by
the disclosure of the papers and documents sought by petitioner. Considering that petitioner
bank was already closed as of January 25, 1985, any disclosure of the aforementioned
letters, reports, and transcripts at this time pose no danger or peril to our economy. Neither
will it trigger any bank run nor compromise state secrets. Respondent's reason for their
resistance to the order of production are tenuous and specious. If the respondents public
officials acted rightfully and prudently in the performance of their duties, there should be
nothing at all that would provoke fear of disclosure
On the contrary, public interests will be best served by the disclosure of the documents. Not
only the banks and its employees but also its numerous depositors and creditors are entitled

to be informed as to whether or not there was a valid and legal justification for the
petitioner's bank closure. It will be well to consider that
Public interest means more than a mere curiosity; it means something in which the public,
the community at large, has some pecuniary interest by which their legal rights or liabilities
are affected (State vs. Crocket, 206, p. 816 cited in Words and Phrases, Vol. 35, p. 229).
IN VIEW OF ALL THE FOREGOING, the order to produce documents dated February 17, 1986
issued by the court below in S.C.- G.R. No. 70054, is hereby affirmed, except as to the copies
of the tapes relative to the Monetary Board deliberations on the closure of Banco Filipino on
January 25, 1985 and its meetings on July 27, 1984, and March 22, 1985 and only if such
tapes are actually no longer available taking into account respondent Monetary Board's
manifestations that the tape recording of the deliberations of that Board are, for purposes of
economy, used over and over again inasmuch as these tapes are not required to be kept or
stored. (See Respondent's Reply, dated May 12, 1986; Rollo, Vol. IV, pp. 1288-1289).
SO ORDERED.

PEOPLE v. PUBLICO
17 car (2s) 703 (1972)
Facts: While walking back home, Aurelio chanced upon Alfredo Lagat and Leonardo Publico,
who were engaged in a heated discussion. Publico remarked to him, Are you another one?
When Aurelio said No and continued on his way, Lagat followed and boxed the former at
the back of his waistline. Aurelio faced Lagat and asked why he was boxing him, but instead
of responding, Lagat took out his bolo. Aurelio ran away, but Lagat chased him. The two
grappled for the possession of the bolo. Aurelio was able to stab Lagat during the fight that
ensued, and the latter later died of shock due to hemorrhage.
During trial, Aurelio raised interposed the plea of self-defense in the killing of Lagat. To
disprove this, the prosecution cited the testimony of Patrolman Julian Urmatam, who
declared that he brought the bolo, which Aurelio had surrendered to the police, to the house
of Aurelio, and when he asked the son and the wife of Aurelio, they replied that it was the
same bolo they used in their kitchen. Aurelios wife, however, denied making such
statement, which denial was corroborated by Patrolman Oandasan, who claimed he too went
to Aurelios house with the bolo, and upon asking the wife and the son regarding the bolo,
they showed him their own bolo.
Issue: Are the alleged information given by Aurelios wife and son to Patrolman Urmatam
excluded as evidence for being violative of the parental-filial privilege?
Held: Yes. Information given to a witness by the wife and child of the accused is in the nature
of evidence against the accused and should not be admitted in evidence. Insofar as the
information allegedly given by the wife is concerned, the same is covered by the evidentiary
rule of exclusion that a wife cannot be examined for or against her husband without his
consent. Insofar as the information allegedly given by the child is concerned, the same is
covered by the evidentiary rule that no descendant can be compelled, in a criminal case, to
testify against his parents and ascendants.

Though no formal objection was given to the admissibility of the testimony of Patrolman
Urmatam about the alleged statements of Aurelios wife and child, by presenting the wife of
the accused to deny the testimony of the witness regarding the alleged information, the
defense had thereby invoked its objection to the inadmissible testimony of Urmatam.
Without the testimony of Urmatam, the testimony of Aurelio that the bolo which he
surrendered to the police belonged to Lagat is now unchallenged and must be accepted to
be true.
Doctrine: Information given to a witness by the wife and child of the accused is in the nature
of evidence against the accused and should not be admitted in evidence. Insofar as the
information allegedly given by the child is concerned, the same is covered by the evidentiary
rule that no descendant can be compelled, in a criminal case, to testify against his parents
and ascendants.

IN THE MATTER OF MYRON FARBER AND THE NEW YORK TIMES COMPANY,
CHARGED WITH CONTEMPT OF COURT, DEFENDANTS-APPELLANTS. STATE OF NEW
JERSEY, PLAINTIFF, v. MARIO E. JASCALEVICH, DEFENDANT.
The Supreme Court of New Jersey.
Argued September 5, 1978.
Decided September 21, 1978.
*262 Mr. Floyd Abrams of the New York Bar argued the cause for appellants Myron Farber
and The New York Times Company (Messrs. Winne, Banta, Rizzi and Harrington, attorneys;
Mr. Peter G. Banta, Mr. Donald A. Klein, and Messrs. Cahill, Gordon and Reindel of the New
York Bar, of counsel; Mr. Raymond L. Falls, Jr., Mr. Eugene Scheiman, Mr. Kenneth M. Vittor,
and Ms. Faith Wender, members of the New York Bar, on the brief).
Mr. Dan Paul of the Florida Bar argued the cause for amici curiae The Miami Herald
Publishing Co., The Washing Post Company, National Broadcasting Company, Inc., Times
Mirror Company, The Philadelphia Inquirer, Scripps-Howard Newspapers, United Press
International, Inc., Associated Press, Gannett Co., Inc., Newhouse News Service, Educational
Broadcasting Corporation, The Chicago Sun Times, The Courier-Journal and Louisville Times
Company, Dow Jones & Company, Inc., The American Society of Newspaper Editors, Radio
Television News Directors Association, The National Association of Broadcasters, The
Reporters Committee for Freedom of the Press, National Newspaper Association, The Florida
Times Union and Jacksonville Journal, The Daily Sentinel, Star-Ledger, The Jersey Journal,

CBS, Inc., American Broadcasting Companies, Inc., The Anniston Star, The New Jersey Press
Association, Trenton Times, Minneapolis Star and Tribune Company, The Bergen Evening
Record Corporation, The Des Moines Register and Tribune Company, Newsweek, The
Newspaper Guild and The Newspaper Guild of New York, Local 3 (Messrs. Mazer, Lesemann
and Rupp, attorneys; Messrs. Paul & Thomson of *263 the Florida Bar, of counsel; Mr. Arthur
J. Lesemann, on the brief).
Mr. John J. Degnan, Attorney General of New Jersey, argued the cause for appellant, pro se
(Mr. Degnan, attorney; Mr. Degnan and Deputy Attorneys General John De Cicco, Edwin H.
Stern, Anthony J. Parrillo and Ileana Saros, of counsel and on the brief).
Mr. Raymond A. Brown argued the cause for respondent Mario E. Jascalevich (Messrs. Brown,
Vogelman and Brown, attorneys; Mr. Brown and Mr. Henry F. Furst on the brief).
Ms. Edith S. Rose submitted a brief on behalf of amicus curiae Association of American
Publishers, Inc.; (Messrs. Smith, Cook, Lambert and Miller, attorneys; Mr. Henry R. Kaufman,
of the New York Bar, of counsel and on the brief).
Mr. Thomas C. Jamieson, Jr., submitted a brief on behalf of amicus curiae American
Newspaper Publishers Association (Messrs. Jamieson, McCardell, Moore, Peskin and Spicer,
attorneys; Messrs. Hanson, O'Brien, Birney & Butler, of the District of Columbia Bar, of
counsel; Mr. Arthur B. Hanson and Mr. Mitchell W. Dale, members of the District of Columbia
Bar, on the brief).
The opinion of the court was delivered by MOUNTAIN, J.
In these consolidated appeals The New York Times Company and Myron Farber, a reporter
employed by the newspaper, challenge judgments entered against them in two related
matters one a proceeding in aid of a litigant (civil contempt), the other for criminal contempt
of court. The proceedings were instituted in an ongoing murder trial now in its seventh
month, as a result of the appellants' failure to comply with two subpoenas duces tecum,
directing them to produce certain documents and materials *264 compiled by one or both of
these appellants in the course of Farber's investigative reporting of certain allegedly criminal
activities. Farber's investigations and reporting are said to have contributed largely to the
indictment and prosecution of Dr. Mario E. Jascalevich for murder. Appellants moved
unsuccessfully before Judge William J. Arnold, the trial judge in State v. Jascalevich, to quash
the two subpoenas; an order was entered directing that the subpoenaed material be
produced for in camera inspection by the court. The appellants' applications for a stay of
Judge Arnold's order were denied successively by the Appellate Division of the Superior
Court, by this Court, and by two separate Justices of the Supreme Court of the United States.
Impelled by appellants' persistent refusal to produce the subpoenaed materials for in
camera inspection, Judge Arnold issued an order returnable before Judge Theodore W.
Trautwein, directing appellants to show cause why they should not be deemed in contempt
of court. During the subsequent hearing, Judge Trautwein ordered counsel for Jascalevich to
apply to Judge Arnold, pursuant to R. 1:10-5, for an additional order to show cause, this to be
in aid of litigants' rights. The order was issued, served and the hearing on the matter
consolidated with the hearing on the criminal contempt charge.
Judge Trautwein determined that both appellants had wilfully contemned Judge Arnold's
order directing that materials be produced for in camera inspection and found them guilty as
charged. A fine of $100,000 was imposed on The New York Times and Farber was ordered to
serve six months in the Bergen County jail and to pay a fine of $1,000. Additionally, in order
to compel production of the materials subpoenaed on behalf of Jascalevich, a fine of $5,000
per day for every day that elapsed until compliance with Judge Arnold's order was imposed

upon The Times; Farber was fined $1,000 and sentenced to confinement in the county jail
until he complied with the order.
*265 The Appellate Division granted a stay of the contempt orders but denied a stay of the
orders for relief of a litigant. Appellants' initial motion for direct certification to this Court was
denied. The Attorney General, designated by the Court to prosecute the contempt charges
against the appellants, moved before the Appellate Division for a remand in order that the
trial court might determine whether the news media privilege, asserted by appellants
throughout these proceedings, had been waived. This motion was denied and an appeal was
taken to this Court. In response to an inquiry by the Court, the Attorney General filed a letter
which contained, inter alia, a motion for direct certification.
The Attorney General's motions for leave to appeal and for direct certification were granted,
as was the appellants' motion for direct certification.
I The First Amendment
Appellants claim a privilege to refrain from revealing information sought by the subpoenas
duces tecum essentially for the reason that were they to divulge this material, confidential
sources of such information would be made public. Were this to occur, they argue,
newsgathering and the dissemination of news would be seriously impaired, because much
information would never be forthcoming to the news media unless the persons who were the
sources of such information could be entirely certain that their identities would remain
secret. The final result, appellants claim, would be a substantial lessening in the supply of
available news on a variety of important and sensitive issues, all to the detriment of the
public interest. They contend further that this privilege to remain silent with respect to
confidential information and the sources of such information emanates *266 from the "free
speech" and "free press" clauses of the First Amendment.[1]
In our view the Supreme Court of the United States has clearly rejected this claim and has
squarely held that no such First Amendment right exists. In Branzburg v. Hayes, 408 U.S.
665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), three news media representatives argued that,
for the same reason here advanced, they should not be required to appear and testify before
grand juries, and that this privilege to refrain from divulging information, asserted to have
been received from confidential sources, derived from the First Amendment. Justice White,
noting that there was no common law privilege, stated the issue and gave the Court's
answer in the first paragraph of his opinion:
The issue in these cases is whether requiring newsmen to appear and testify before state or
federal grand juries abridges the freedom of speech and press guaranteed by the First
Amendment. We hold that it does not. [Branzburg v. Hayes, supra, 408 U.S. at 667, 92 S.Ct.
at 2649, 33 L.Ed.2d at 631 [1972]]
In that case one reporter, from Frankfort, Kentucky, had witnessed individuals making
hashish from marijuana and had made a rather comprehensive survey of the drug scene in
Frankfort. He had written an article in the Louisville Courier-Journal describing this illegal
activity. Another, a newsman-photographer employed by a New Bedford, Massachusetts
television station, had met with members of the Black Panther movement at the time that
certain riots and disorders occurred in New Bedford. The material he assembled formed the
basis for a television program that *267 followed. The third investigative reporter had met
with members of the Black Panthers in northern California and had written an article about
the nature and activities of the movement. In each instance there had been a commitment
on the part of the media representative that he would not divulge the source of his article or
story.

By a vote of 5 to 4 the Supreme Court held that newspaper reporters or other media
representatives have no privilege deriving from the First Amendment to refrain from
divulging confidential information and the sources of such information when properly
subpoenaed to appear before a grand jury. The three media representatives were directed to
appear and testify. The holding was later underscored and applied directly to this case by
Justice White in a brief opinion filed in this cause upon the occasion of his denial of a stay
sought by these appellants. He said,
There is no present authority in this Court either that newsmen are constitutionally
privileged to withhold duly subpoenaed documents material to the prosecution or defense of
a criminal case or that a defendant seeking the subpoena must show extraordinary
circumstances before enforcement against newsmen will be had. [New York Times and
Farber v. Jascalevich, ___ U.S. ___, 99 S.Ct. 6, 10, 58 L.Ed.2d 25, 30-31 (1978)]
We pause to point out that despite the holding in Branzburg, those who gather and
disseminate news are by no means without First Amendment protections. Some of these are
referred to by Justice White in the Branzburg opinion. See 408 U.S. at 681-2, 92 S.Ct. at
2656-57, 33 L.Ed.2d at 639-40. They include, among others, the right to publish what the
press chooses to publish, to refrain from publishing what it chooses to withhold, to seek out
news in any legal manner and to refrain from revealing its sources except upon legitimate
demand. Demand is not legitimate when the desired information is patently irrelevant to the
needs of the inquirer or his needs are not manifestly compelling. Nor will the First
Amendment sanction harassment of the press. *268 These do not exhaust the list of such
First Amendment protective rights.
The point to be made, however, is that among the many First Amendment protections that
may be invoked by the press, there is not to be found the privilege of refusing to reveal
relevant confidential information and its sources to a grand jury which is engaged in the
fundamental governmental function of "[f]air and effective law enforcement aimed at
providing security for the person and property of the individual ..." [408 U.S. at 690, 92 S.Ct.
at 2661, 33 L.Ed.2d at 644]. The reason this is so is that a majority of the members of the
United States Supreme Court have so determined.
Faced with this conclusion, appellants appear to argue that Justice Powell's concurring
opinion in Branzburg somehow fails to support this result. The argument is without merit. We
do not read Justice Powell's opinion as in any way disagreeing with what is said by Justice
White. But even if it did, it would not matter for present purposes. The important and
conclusive point is that five members of the Court have all reached the conclusion that the
First Amendment affords no privilege to a newsman to refuse to appear before a grand jury
and testify as to relevant information he possesses, even though in so doing he may divulge
confidential sources. The particular path that any Justice may have followed becomes
unimportant when once it is seen that a majority have reached the same destination.
Thus we do no weighing or balancing of societal interests in reaching our determination that
the First Amendment does not afford appellants the privilege they claim. The weighing and
balancing has been done by a higher court. Our conclusion that appellants cannot derive the
protection they seek from the First Amendment rests upon the fact that the ruling in
Branzburg is binding upon us and we interpret it as applicable to, and clearly including, the
particular issue framed here. It follows that the obligation to appear at a criminal trial on
behalf of a defendant who is *269 enforcing his Sixth Amendment rights is at least as
compelling as the duty to appear before a grand jury.
II The Shield Law[2]
In Branzburg v. Hayes, supra, the Court dealt with a newsman's claim of privilege based
solely upon the First *270 Amendment. As we have seen, this claim of privilege failed. In

Branzburg no shield law was involved. Here we have a shield law, said to be as strongly
worded as any in the country.
We read the legislative intent in adopting this statute in its present form as seeking to
protect the confidential sources of the press as well as information so obtained by reporters
and other news media representatives to the greatest extent permitted by the Constitution
of the United States and that of the State of New Jersey. It is abundantly clear that
appellants come fully within the literal language of the enactment. Extended discussion is
quite unnecessary. Viewed solely as a matter of statutory construction, appellants are clearly
entitled to the protections afforded by the *271 act unless statutory exceptions including
waiver are shown to apply. In view of the fundamental basis of our decision today, the
question of waiver of privilege under the Shield Law need not be addressed by us.
III The Sixth Amendment[3]and its New Jersey Counterpart[4]
Viewed on its face, considered solely as a reflection of legislative intent to bestow upon the
press as broad a shield as possible to protect against forced revelation of confidential source
materials, this legislation is entirely constitutional. Indeed, no one appears to have attacked
its facial constitutionality.
It is, however, argued, and argued very strenuously, that if enforced under the facts of this
case, the Shield Law violates the Sixth Amendment of the Federal Constitution as well as
Article 1, 10 of the New Jersey Constitution. These provisions are set forth above.
Essentially the argument is this: The Federal and State Constitutions each *272 provide that
in all criminal prosecutions the accused shall have the right "to have compulsory process for
obtaining witnesses in his favor." Dr. Jascalevich seeks to obtain evidence to use in preparing
and presenting his defense in the ongoing criminal trial in which he has been accused of
multiple murders. He claims to come within the favor of these constitutional provisions
which he surely does. Finally, when faced with the Shield Law, he invokes the rather
elementary but entirely sound proposition that where Constitution and statute collide, the
latter must yield. Subject to what is said below, we find this argument unassailable.
The compulsory process clause of the Sixth Amendment has never been elaborately
explicated by the Supreme Court. Not until 1967, when it decided Washington v. Texas, 388
U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 had the clause been directly construed. Westen,
Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91
Harv. L. Rev. 567, 586 (1978). In Washington the petitioner sought the reversal of his
conviction for murder. A Texas statute at the time provided that persons charged or
convicted as co-participants in the same crime could not testify for one another. One Fuller,
who had already been convicted of the murder, was prevented from testifying by virtue of
the statute. The record indicated that had he testified his testimony would have been
favorable to petitioner. The Court reversed the conviction on the ground that petitioner's
Sixth Amendment right to compulsory process had been denied. At the same time it
determined that the compulsory process clause in the Sixth Amendment was binding on
state courts by virtue of the due process clause of the Fourteenth Amendment. It will be
seen that Washington is like the present case in a significant respect. The Texas statute and
the Sixth Amendment could not both stand. The latter of course prevailed. So must it be
here.
Quite recently, in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039
(1974), the Court dealt with another compulsory process issue. There the Special *273
Prosecutor, Leon Jaworski, subpoenaed various tape recordings and documents in the
possession of President Nixon. The latter claimed an executive privilege and refused to
deliver the tapes. The Supreme Court conceded that indeed there was an executive privilege
and that although "[n]owhere in the Constitution ... is there any explicit reference to a
privilege of confidentiality, yet to the extent this interest relates to the effective discharge of

a President's powers, it is constitutionally based." 418 U.S. at 711, 94 S.Ct. at 3109, 41

L.Ed.2d at 1065. Despite this conclusion that at least to some extent a president's executive
privilege derives from the Constitution, the Court nonetheless concluded that the demands
of our criminal justice system required that the privilege must yield.
We have elected to employ an adversary system of criminal justice in which the parties
contest all issues before a court of law. The need to develop all relevant facts in the
adversary system is both fundamental and comprehensive. The ends of criminal justice
would be defeated if judgments were to be founded on a partial or speculative presentation
of the facts. The very integrity of the judicial system and public confidence in the system
depend on full disclosure of all the facts, within the framework of the rules of evidence. To
ensure that justice is done, it is imperative to the function of courts that compulsory process
be available for the production of evidence needed either by the prosecution or by the
defense. [United States v. Nixon, supra, 418 U.S. at 709, 94 S.Ct. at 3108, 41 L.Ed.2d at
1064]
It is important to note that the Supreme Court in this case compelled the production of
privileged material the privilege acknowledged to rest in part upon the Constitution even
though there was no Sixth Amendment compulsion to do so. The Sixth Amendment affords
rights to an accused but not to a prosecutor. The compulsion to require the production of the
privileged material derived from the necessities of our system of administering criminal
justice.
Article 1, 10 of the Constitution of the State of New Jersey contains, as we have seen,
exactly the same *274 language with respect to compulsory process as that found in the
Sixth Amendment. There exists no authoritative explication of this constitutional provision.
Indeed it has rarely been mentioned in our reported decisions. We interpret it as affording a
defendant in a criminal prosecution the right to compel the attendance of witnesses and the
production of documents and other material for which he may have, or may believe he has,
a legitimate need in preparing or undertaking his defense. It also means that witnesses
properly summoned will be required to testify and that material demanded by a properly
phrased subpoena duces tecum will be forthcoming and available for appropriate
examination and use.
Testimonial privileges, whether they derive from common law or from statute, which allow
witnesses to withhold evidence seem to conflict with this provision. This conflict may arise in
a variety of factual contexts with respect to different privileges.[5] We confine our
consideration here to the single privilege before us that set forth in the Shield Law. We hold
that Article 1, 10 of our Constitution prevails over this statute, but in recognition of the
strongly expressed legislative viewpoint favoring confidentiality, we prescribe the imposition
of the safeguards set forth in Point IV below.
IV Procedural Mechanism
Appellants insist that they are entitled to a full hearing on the issues of relevance,
materiality and overbreadth of the subpoena. We agree. The trial court recognized its
obligation *275 to conduct such a hearing, but the appellants have aborted that hearing by
refusing to submit the material subpoenaed for an in camera inspection by the court to
assist it in determining the motion to quash. That inspection is no more than a procedural
tool, a device to be used to ascertain the relevancy and materiality of that material. Such an
in camera inspection is not in itself an invasion of the statutory privilege. Rather it is a
preliminary step to determine whether, and if so to what extent, the statutory privilege must
yield to the defendant's constitutional rights.
Appellants' position is that there must be a full showing and definitive judicial determination
of relevance, materiality, absence of less intrusive access, and need, prior to any in camera

inspection. The obvious objection to such a rule, however, is that it would, in many cases,
effectively stultify the judicial criminal process. It might well do so here. The defendant
properly recognizes Myron Farber as a unique repository of pertinent information. But he
does not know the extent of this information nor is it possible for him to specify all of it with
particularity, nor to tailor his subpoena to precise materials of which he is ignorant. Well
aware of this, Judge Arnold refused to give ultimate rulings with respect to relevance and
other preliminary matters until he had examined the material. We think he had no other
course. It is not rational to ask a judge to ponder the relevance of the unknown.
The same objection applies with equal force to the contention that the subpoena is
overbroad. Appellants do not assert that the subpoena is vague and uncertain, but that the
data requested may not be relevant and material. To deal effectively with this assertion it is
not only appropriate but absolutely necessary for the trial court to inspect in camera the
subpoenaed items so that it can make its determinations on the basis of concrete materials
rather than in a vacuum. The appellant's reliance upon State v. Cooper, 2 N.J. 540 (1949) is
misplaced. There the subpoena was vague and uncertain on its face and violative of R.R.
2:5-8. (Now R. 1:9-2).
*276 While we agree, then, that appellants should be afforded the hearing they are seeking,
one procedural aspect of which calls for their compliance with the order for in camera
inspection, we are also of the view that they, and those who in the future may be similarly
situated, are entitled to a preliminary determination before being compelled to submit the
subpoenaed materials to a trial judge for such inspection. Our decision in this regard is not,
contrary to the suggestion in some of the briefs filed with us, mandated by the First
Amendment; for in addition to ruling generally against the representatives of the press in
Branzburg, the Court particularly and rather vigorously, rejected the claims there asserted
that before going before the grand jury, each of the reporters, at the very least, was entitled
to a preliminary hearing to establish a number of threshold issues. Branzburg v. Hayes,
supra, 408 U.S. at 701-07, 92 S.Ct. 2666, 69, 33 L.Ed.2d at 651-55. Rather, our insistence
upon such a threshold determination springs from our obligation to give as much effect as
possible, within ever-present constitutional limitations, to the very positively expressed
legislative intent to protect the confidentiality and secrecy of sources from which the media
derive information. To this end such a determination would seem a necessity.
The threshold determination would normally follow the service of a subpoena by a defendant
upon a newspaper, a reporter or other representative of the media. The latter foreseeably
would respond with a motion to quash. If the status of the movant newspaper or media
representative were not conceded, then there would follow the taking of proofs leading to a
determination that the movant did or did not qualify for the statutory privilege. Assuming
qualification, it would then become the obligation of the defense to satisfy the trial judge, by
a fair preponderance of the evidence including all reasonable inferences, that there was a
reasonable probability or likelihood that the information sought by the subpoena was
material and relevant to his defense, that it could not be secured from any less intrusive
*277 source, and that the defendant had a legitimate need to see and otherwise use it.
The manner in which the obligation of the defendant is to be discharged in the proceedings
leading to this threshold determination will depend largely upon the facts of the particular
case. We wish to make it clear, however, that this opinion is not to be taken as a license for
a fishing expedition in every criminal case where there has been investigative reporting, nor
as permission for an indiscriminate rummaging through newspaper files.
Although in this case the trial judge did not articulate the findings prescribed above, it is
perfectly clear that on the record before him a conclusion of materiality, relevancy,
unavailability of another source, as well as need was quite inescapable. A review of the
record in the exercise of our original jurisdiction, R. 2:10-5, reveals that the knowledge

possessed by the trial judge and the material before him at the time he made his
determination to conduct an in camera inspection afforded a more than adequate factual
basis upon which to rest a conclusion that the threshold prerequisites set forth above were
in fact fully met. We deem it quite unnecessary to remand the case in order to have the
judge set forth formally what we find to be abundantly clear. We set forth below our reasons
for this conclusion.
As of June 30, 1978, the date of the challenged decision to examine the materials in camera,
Judge Arnold had been trying the case for about 18 weeks. He had dealt with earlier pre-trial
motions. His knowledge of the factual background and of the part Farber had played was
intimate and pervasive. Perhaps most significant is the trial court's thorough awareness of
appellant Farber's close association with the Prosecutor's office since a time preceding the
indictment. This glaring fact of their close working relationship may well serve to distinguish
this case from the vast majority of others in which defendants seek disclosure from
newsmen in the face of the Shield Law. Two and a half months before his June 30th decision,
Judge Arnold observed,
*278 The facts show that Farber has written articles for the New York Times about this
matter, commencing in January 1976. According to an article printed in the New York Times
(hereinafter the Times) on January 8, 1976, Farber showed Joseph Woodcock, the Bergen
County Prosecutor at that time, a deposition not in the State's file and provided additional
information that convinced the prosecutor to reopen an investigation into some deaths that
occurred at Riverdell Hospital. [State v. Jascalevich; In the Matter of the Application of Myron
Farber and the New York Times Company re: Sequestration, 158 N.J. Super. 488, 490 (Law
Div. 1978), (emphasis added)]
And
The court has examined the news stories in evidence and they demonstrate exceptional
quality, a grasp of intricate scientific knowledge, and a style of a fine journalist. They, also,
demonstrate considerable knowledge of the case before the court and deep involvement by
Farber, showing his attributes as a first-rate investigative reporter. However, if a newspaper
reporter assumes the duties of an investigator, he must also assume the responsibilities of
an investigator and be treated equally under the law, unless he comes under some
exception. [Id. at 493-94, (emphasis added)]
In the same vein is a letter before the trial court dated January 14, 1977 from Assistant
Prosecutor Moses to Judge Robert A. Matthews, sitting as a Presiding Judge in the Appellate
Division, undertaking to explain "how the investigation, from which the [Jascalevich]
indictment resulted, came to be reopened." In the course of that explanation it is revealed
that sometime in the latter part of 1975 "a reporter for the New York Times began an
investigation into the 1965-66 deaths and circumstances surrounding them. The results of
the New York Times inquiry were made available to the Prosecutor. It was thus determined
that there were certain items which were not in the file of the Prosecutor." [Emphasis added]
Further support for the determination that there is a reasonable probability that the
subpoenaed materials meet the test formulated above appears in the following factual
circumstances pointed to by this defendant and supported by *279 documents and
transcripts of testimony found in the appendix filed by the defendant:
1. A principal witness for the State is Dr. Michael Baden, a New York City Medical Examiner,
who testified that Farber communicated with him prior to any official communication from
the Prosecutor's office. The defendant would have one infer from this that Farber stimulated
Baden's research into the causal connection among curare, the deaths, and Dr. Jascalevich,
then turned the results of this joint effort over to the Prosecutor. (Trial testimony elicited

from Dr. Baden after June 30th, the date of Judge Arnold's order, is said to furnish further
support for this inference.) While no sinister implications need flow from this, it arguably
serves to buttress the defense assertion that the driving power behind this prosecution is
Farber, and hence such materials, if any, that he may be secreting are reasonably likely to
bear on the guilt or innocence of Dr. Jascalevich.
2. Dr. Stanley Harris was a surgeon at the hospital where the criminal activities are said to
have occurred. His suspicions are said to have been aroused by the unexplained deaths of
some of his patients. Dr. Harris admits having spoken to Farber five times before the New
York Times articles appeared and before his reinterview by the Prosecutor's office in 1976.
He is characterized by the criminal defendant as his "principal accuser," and therefore
whatever otherwise unavailable information Farber extracted from him would, with
reasonable probability, bear upon Dr. Jascalevich's guilt or innocence.
3. Lee Henderson was an attendant at Seton Hall Medical School at a time when, according
to one statement allegedly made by Dr. Jascalevich, the latter was performing certain tests
on dogs in the School laboratory. The tests supposedly involved the effects of curare (a drug
said to have been administered by the criminal defendant in producing the deaths of the
victims). Henderson may very well have information touching upon Dr. Jascalevich's
activities, if any, in the laboratory. After considerable effort Farber succeeded in *280
tracking down Henderson in South Carolina. When a Prosecutor's investigator was later able
to communicate with Henderson (having presumably been led to him by information
furnished by Farber), the witness initially refused to give a statement (later supplied) for fear
that it would conflict with a written statement previously furnished to Farber. The criminal
defendant wishes to examine this earlier statement.
4. Herman Fuhr was an operating room attendant who opened Dr. Jascalevich's locker at
Riverdell Hospital, where curare was allegedly stored. Farber interviewed him. He will not
speak to defense representatives.
5. Dr. Charles Umberger was a toxicologist who worked on slides of one of the alleged
victims. He gave notes to Farber who did not return them. Some of these notes are missing.
Dr. Umberger died in 1977 before the defense could interview him.
6. Barbara Kenderes was a lab technician at the hospital. She gave a statement to a
Prosecutor's detective in 1966, which the State either has not furnished or cannot furnish to
the defense. She testified before the grand jury in March, 1976. Several days later Mrs.
Kenderes received a telephone call on her private, unlisted number from Myron Farber.
During the course of the conversation he accused her of hiding something from him. She
replied that, indeed, she was. Shortly thereafter, she received a call from Assistant
Prosecutor Sybil Moses, who is handling the case. Mrs. Moses told Mrs. Kenderes that Myron
Farber called her and said Mrs. Kenderes was hiding something. Mrs. Moses wanted to know
what that was. Mrs. Kenderes replied that it was only the fact that she had appeared before
the grand jury, which Mrs. Moses had cautioned her not to speak about. The only person to
whom Mrs. Kenderes had given her private phone number in connection with this matter
was Mrs. Moses. Again the inference defendant Jascalevich would have us draw is that early
on there was complete cooperation and exchange of information between the Prosecutor's
office and Farber, with the resultant likelihood that Farber is now, *281 and for some time
has been, in possession of material and relevant information not otherwise obtainable
bearing on the guilt or innocence of Dr. Jascalevich.
We hasten to add that we need not, and do not, address (much less determine) the truth or
falsity of these assertions. The point to be made is that these are the assertions of the
criminal defendant supported by testimonial or documentary proof; and based thereon it is
perfectly clear that there was more than enough before Judge Arnold to satisfy the tests

formulated above. Of course all of this information detailed above has long been known to
appellants. Accordingly we find that preliminary requirements for in camera inspection have
been met.
We have considered appellants' other contentions as to lack of jurisdiction and the like. So
far as they are relevant to the matters herein decided we find them to lack merit.
The judgment of conviction of criminal contempt and that in aid of litigants' rights are
affirmed. Stays heretofore entered are vacated effective as of 4:00 P.M., Tuesday, September
26, 1978.
HUGHES, C.J., concurring.
I join in the comprehensive opinion of Justice Mountain and would briefly refer to factors
which seem to me particularly reassuring in justification of that opinion. As pointed out,
Judge Arnold in his threshold rulings was quite familiar with testimony introduced in a very
long trial. As mentioned by Justice Mountain, this record included testimonial reference to
the activities of Myron Farber and to the statements of material trial witnesses, which Farber
possesses as agent of the respondent The New York Times. These statements, as shown by
the trial record, are demonstrably inaccessible to the criminal trial defendant and should
obviously be subject to comparison with the present trial testimony of various witnesses who
have made such statements.
It would of course have been better practice for the trial judge to have documented
references to that testimonial record to demonstrate, at the threshold: (1) probable
relevance *282 and materiality, (2) absence of opportunity for less intrusive access to the
material demanded, (3) the status of any Shield Law protection and (4) the substantial
reality of a consequent Sixth Amendment right to the evidence on the part of the defendant.
The failure to have done so, however, should not be conclusive in the face of respondents'
intransigence. Considering that today we have found the threshold requirements to be
evident in the record, as doubtless did Judge Arnold as the basis for his rulings, it is clear
that respondents have denied to the court in camera access to the only factual base upon
which any court could have proceeded from that point to hear proofs and argument and
then intelligently and finally determine those issues.
In this context, then, respondents have not truly been denied a hearing they have
intentionally withheld from the court the only foundation (that is to say, in camera
consideration such as occurs in equally important Fifth Amendment cases) upon which any
sensible final hearing and determination could have been based. In that respect they have
aborted, alike, any possible fuller hearing and any possible substantive determination based
on such a hearing.
Considered in this way, respondents have in fact had all the hearing to which they are
presently entitled that is to say a full consideration of their claimed Shield Law privilege to
the extent that such asserted right may be adjudicated in vacuo. Their claim to a final
adjudication without an in camera scrutiny by the court upon which to base its decision
would project the absurd proposition that the press, and not the courts, should be the final
arbiter of the constitutional mandate.
Such a conclusion would be discordant with the entire history of constitutional adjudication
since the foundation of the Republic. It would be destructive of values upon which our
constitutional democracy rests, that is to say, on the premise that the Constitution is
supreme over the transitory will of any man, or of any group of men, or of the Congress
itself, or even of a President, or of the press, or of *283 any special interest, no matter how
worthy. In the perspective of history, given the need for freedom of the press and religion, of

free speech and assemblage and other rights of free people, all such rights are diminished if
men may be condemned without the right to fair trial and without compulsory process to
effectuate that right. For in the end, this was the constitutional purpose that all men might
be equal before the law and thus free to seek without restraint those common goals
identified by our ancestors life, liberty and the pursuit of happiness. All these are affronted
and endangered intolerably, if fair trial is denied to anyone.
PASHMAN, J., dissenting.
I respectfully dissent from the Court's affirmance of the judgments of civil and criminal
contempt entered below. Subjecting appellants to sanctions for failure to comply with a
judicial order prior to an adjudication as to their legal obligation to comply with that order
runs counter to the core concept of our legal system due process of law. This is not a case in
which appellants' claims of privilege are frivolous and easily disposed of; quite the contrary,
substantial questions are herein presented concerning appellants' rights under both the First
Amendment and the New Jersey News Media Privilege Act to refuse to disclose sources and
confidential information gathered in the course of appellant-Farber's investigative reporting
activities. Since appellants were denied an opportunity to present these claims prior to the
imposition against them of coercive and punitive sanctions, the judgments of contempt must
be vacated and the case remanded for a hearing to determine the merits of their objections.
The main question posed by the present case is whether the New York Times Company and
Myron Farber may be adjudged to be in civil and criminal contempt for their refusal to
comply with an order of the judge presiding over the trial in State v. Jascalevich to produce
certain materials *284 for in camera inspection before the merits of various proffered
defenses are heard and decided. Other significant questions concern the scope of the New
Jersey News Media Privilege Act and the type of hearing that should have been accorded
appellants.
My resolution of this controversy makes unnecessary a consideration of appellants' claims
that the subpoena is impermissibly overbroad, see State v. Cooper, 2 N.J. 540 (1949), and
that the lower court was without jurisdiction to enter contempt judgments against them.
Suffice it to say that grave doubts exist as to the manner in which these issues were treated
below.
I Denial of Due Process
The most fundamental tenet of our legal system is that no man can be deprived of life,
liberty or property without due process of law. While due process is a flexible concept whose
requirements will vary from case to case, there can be no doubt that at a minimum it
mandates that deprivations of liberty or property be preceded by an opportunity to be
heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94
L.Ed. 865 (1950); Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914).
Where, as here, First Amendment interests are implicated, especially stringent procedural
safeguards are required. See, e.g., Carroll v. President and Comm'rs of Princess Anne, 393
U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct.
734, 13 L.Ed.2d 649 (1965); L. Tribe, American Constitutional Law, 12-34 to 12-36 (1978).
At no point prior to the rendition of the contempt judgments were appellants accorded an
opportunity to marshall legal arguments against in camera production of the subpoenaed
materials. Their claims that the subpoena is impermissibly overbroad and that compelled in
camera disclosure *285 is forbidden by the First Amendment and the New Jersey Shield Law,
N.J.S.A. 2A:84A-21, were denied consideration both at the motion to quash the subpoena and
during contempt proceedings.

The majority's assertion that appellants were indeed accorded a due process hearing prior to
in camera inspection is simply without foundation in the record. In fact, it directly contradicts
the express words of the trial judge. In response to appellants' contentions that in camera
disclosure was legally impermissible, the judge stated:
When the items are produced, this Court will give the applicants a full hearing as to the
materiality of the subpoena, its scope and its contents.
The Court will also decide if the items are barred by the Shield Law and any other legitimate
defense that may be asserted.
In effect, appellants were to be afforded an opportunity to contest the legality of in camera
disclosure only after the materials had been so disclosed. Such a result not only turns logic
on its head, but, more importantly, makes a mockery of "due process." See In re Vornado,
Inc., 159 N.J. Super. 32, 38 (App. Div. 1978), certif. den. 77 N.J. 489 (1978).
Farber has therefore never received the hearing to which he is constitutionally entitled. I find
it totally unimaginable that the majority can even consider allowing a man to be sent to jail
without a full and orderly hearing at which to present his defenses. Mr. Farber probably
assumed, as did I, that hearings were supposed to be held and findings made before a
person went to jail and not afterwards.
II New Jersey News Media Privilege
The appellants' claims as to the privileged nature of the subpoenaed materials are clearly
cogent under N.J.S.A. 2A:84A-21. That statute provides, in pertinent part:
*286 * * * [A] person * * * connected with, or employed by news media for the purpose of
gathering * * * or disseminating news for the general public or on whose behalf news is so
gathered * * * or disseminated has a privilege to refuse to disclose, in any legal or quasilegal proceeding or before any investigative body, including, but not limited to, any court,
grand jury, petit jury, administrative agency, the Legislature or legislative committee, or
elsewhere
a. The source * * * from or through whom any information was procured [;] * * * and
b. Any news or information obtained in the course of pursuing his professional activities
whether or not it is disseminated.
This case is the first major test of New Jersey's new "Shield Law." There is no reason to
accord this statute an unfriendly reception in any court of this State. There should be no
eagerness to narrow or circumvent it. The Shield Law is not an irritation. It is an act of the
Legislature.
This law was passed in the aftermath of the Supreme Court's decision in Branzburg v. Hayes,
408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). In Branzburg, the Court held that the
First Amendment will not always prevent forced disclosure of a reporter's confidential
sources and information. More specifically, it ruled that the reporters there involved had no
privilege under the First Amendment against being compelled, on pain of contempt, to
reveal such confidential data to an investigating grand jury. In its view, the resulting
infringement upon the reporters' investigating abilities was outweighed by the grand jury's
need to have everyman's evidence.
The Court emphasized, however, that state legislatures were not powerless to alter the
result reached in Branzburg. As Justice White stated:

At the federal level, Congress has freedom to determine whether a statutory newsman's
privilege is necessary and desirable and to fashion standards and rules as narrow or broad
as deemed necessary to deal with the evil discerned and, equally important, to refashion
those rules as experience from time to time may dictate. There is also merit in leaving state
legislatures free, within First Amendment limits, to fashion their own standards in light of the
conditions and problems with respect to the relations between law enforcement officials
*287 and press in their own areas. It goes without saying, of course, that we are powerless
to bar state courts from responding in their own way and construing their own constitutions
so as to recognize a newsman's privilege, either qualified or absolute.
[408 U.S. at 706, 92 S.Ct. at 2669; emphasis supplied]
The News Media Privilege Act was New Jersey's response to the Court's invitation. This Act
reflects our Legislature's judgment that an uninhibited news media is more important to the
proper functioning of our society than is the ability of either law enforcement agencies, the
courts or criminal defendants to gain access to confidential news data.
It cannot be doubted that this legislative judgment rests upon a firm foundation. News
media keep the public abreast of goings-on, both public and private, and thus make possible
"[e]nlightened choice[s] by an informed citizenry" "the basic ideal upon which an open
society is premised * * *" Branzburg v. Hayes, 408 U.S. 665, 726, 92 S.Ct. 2646, 2672, 33
L.Ed.2d 626 (1972) (Stewart, J., dissenting). Not only does a free press provide people with a
wide range of facts and opinion, but, by exposing the actions of public officials, it serves as a
check upon governmental error and abuse. See, e.g., Sheppard v. Maxwell, 384 U.S. 333,
350, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 539, 85 S.Ct. 1628,
14 L.Ed.2d 543 (1965). As such, it is an "incontestable precondition of self-government."
Branzburg, supra, 408 U.S. at 726, 92 S.Ct. 2646 (Stewart, J., dissenting). In the words of
James Madison:
* * * A popular Government, without popular information, or the means of acquiring it, is but
a Prologue to a Farce or a Tragedy; or, perhaps, both. Knowledge will forever govern
ignorance; and a people who mean to be their own Governors must arm themselves with the
power which knowledge gives.
[Letters and Other Writings of James Madison, Fourth President of the United States, Vol. 3,
p. 276 (1865 ed.)]
It was perhaps for this reason that Justice Douglas concluded that "[t]here is no higher
function performed under our constitutional regime" than that of reporting the news. *288
Branzburg, supra, at 722, 92 S.Ct. at 2696 (Douglas, J., dissenting).
A reporter's ability to obtain sensitive information depends on his reputation for keeping
confidences. Once breached that reputation is destroyed. Potential sources of information
can no longer rest secure that their identities and confidences will remain free from
disclosure.
Realizing that strict confidentiality is essential to the workings of a free press, our
Legislature, through the News Media Privilege Act, has granted reporters an immunity from
disclosure which is both absolute and comprehensive. Any person connected with any news
media for the purpose of gathering or disseminating news is granted the privilege of refusing
to disclose, in any legal or quasi-legal proceeding or before any investigative body, both the
source of and any information acquired.
Courts are thus given no discretion to determine on a case-by-case basis whether the
societal importance of a free and robust press is "outweighed" by other assertedly

compelling interests. The Legislature has done the weighing and balancing and has
determined that in every case the right to non-disclosure is paramount. If a reporter falls
within the ambit of the statute, he has a privilege of non-disclosure.
This privilege exists not only with respect to public disclosures; it encompasses revelations
to any legal or quasi-legal body, including "any court." Even forced in camera disclosures are
thus prohibited. Indeed, any other conclusion would subvert the policies underlying the
statute. As Justice Marshall noted, denying a stay in this case:
Many potential criminal informants * * * might well refuse to provide information to a
reporter if they knew that a judge could examine the reporter's notes upon the request of a
defendant.
[___ U.S. ___, 99 S.Ct. 11, 58 L.Ed.2d 38 (1978)]
Further, the specter of forced in camera disclosure may, in the words of Justice Douglas,
"cause editors and critics to *289 write with more restrained pens." Branzburg v. Hayes,
supra 408 U.S. at 721, 92 S.Ct. at 2691 (1972) (Douglas, J., dissenting).
The majority intimates that a reporter may lose the protection of the Shield Law if he can
also be deemed an "investigator." See ante at 278. All good reporting must be investigative.
If reporting is to be imaginative and understandable, the facts and leads must be searched
out. Such resourceful, probing journalism first exposed most of the serious governmental
scandals. The process helps people learn what they need to know. To hamper it is to hamper
ourselves. To hold therefore that the Shield Law is not applicable to a reporter who is also an
investigator is to hold that the Shield Law will never be applicable.[1]
Branzburg makes clear that the Shield Law is a permissible exercise of legislative authority.
As the product of a co-equal branch of government, it must be respected by our Courts.
Appellants' position that the Media Privilege Act prohibits forced in camera disclosure of
confidential data is thus meritorious. Since this is so, it is unnecessary to pass upon their
claims that the First Amendment also protects them from such forced disclosure.
III Necessity for Hearing
Jascalevich asserts that the materials subpoenaed in the present case are relevant to his
defense, and hence non-disclosure will deprive him of his Fifth and Sixth Amendment rights
to a fair trial. It is of course axiomatic that a *290 statute cannot be applied so as to abridge
an individual's constitutional rights. However, if the materials are ordered turned over for in
camera inspection in order that a determination be made as to their relevance to
Jascalevich's defense, appellants' statutory privilege of non-disclosure will be eviscerated.
How to deal with this state of affairs? It is submitted that an almost identical situation was
faced by the Supreme Court in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41
L.Ed.2d 1039 (1974), and that the Court's solution to the problem in that case should serve
as a guide to the case at hand. In Nixon, the production of subpoenaed presidential material
was resisted on grounds of "executive privilege." Disclosure of the data was sought by
presidential aides who were criminal defendants as well as by the prosecutors. In the course
of its opinion, the Court noted that before the "weighty" interest in confidentiality was
undermined by even in camera disclosure, those desirous of obtaining the information were
required to make a threshold showing as to the relevance, materiality and necessity of the
data to the conduct of the trial. In that case, the Special Prosecutor had met this threshold
burden. In the words of the lower court, he had made "a lengthy and detailed showing of
[the Government's] need for the subpoenaed items and their relevance." United States v.
Mitchell, 377 F. Supp. 1326, 1328 aff'd sub nom. United States v. Nixon, 418 U.S. 683, 94

S.Ct. 3090, 41 L.Ed.2d 1039 (1974). See also Brown v. Commonwealth, 214 Va. 755, 204
S.E.2d 429 (S.Ct.), cert. den. 419 U.S. 966, 95 S.Ct. 229, 42 L.Ed.2d 182 (1974); State v. St.
Peter, 132 Vt. 266, 315 A.2d 254 (S.Ct. 1974).
The need to impose such a threshold burden upon a criminal defendant is at once manifest.
Absent such a requirement, nothing prevents any person accused of a crime from embarking
upon "fishing expeditions" into a news media's files. Such rummaging of a newspaper's
records cannot be permitted. See Brown v. Commonwealth, supra; State v. St. Peter, supra.
*291 Case law demonstrates that a criminal defendant's Fifth and Sixth Amendment rights
will be undermined only if subpoenaed data are relevant, material and necessary to the
defense. If the information is irrelevant or immaterial or unnecessary to Jascalevich's
defense, or if alternate sources of this information exist, then non-production will not impair
his constitutional rights; hence, disclosure cannot be mandated. See Brown v.
Commonwealth, supra; State v. St. Peter, supra.
This cause must therefore be remanded for a hearing prior to a decision regarding
appellants' obligation to disclose the subpoenaed materials. At this hearing, evidence can be
adduced relating to: (1) the applicability of the Media Privilege to the information sought to
be obtained by Dr. Jascalevich; (2) the existence of a waiver of that privilege; and (3) the
relevance, materiality and necessity of the subpoenaed data to Jascalevich's defense. The
latter inquiry will, of course, encompass a determination as to the existence of alternate
sources of information. Since the Media Privilege Act prohibits even compelled in camera
disclosure, such disclosure should not be ordered, as in Nixon, unless and until Jascalevich
has made a threshold showing that the materials are relevant, material and necessary.
The majority suggests that a hearing can be dispensed with, or that its outcome will be
foreordained, in every case in which a reporter possesses "considerable knowledge of [a
criminal] case." See ante at 278. Such a conclusion nullifies the provisions of the Media
Privilege Act. In effect, the majority has ruled that Shield Law protection will be withdrawn
from reporters who perform their jobs competently that is, those who gain "considerable
knowledge" concerning a criminal case. A hearing as to relevance, materiality, and necessity
must be conducted in all cases in which the privilege is invoked. Compelled in camera
disclosure must be prohibited unless and until the defendant has met his threshold burden in
accordance with the procedures to be discussed below.
*292 Those procedures which will apply to all who may be similarly situated should be as
follows:
(1) The person claiming the privilege should be required to make a prima facie showing that
he is a newsperson and that he obtained the subpoenaed materials in the course of his
newsgathering duties. This is subject to rebuttal by Dr. Jascalevich; Jascalevich may also
show waiver of the privilege.
(2) If the judge finds that the privilege is arguably applicable, then the burden should shift to
Dr. Jascalevich to make a threshold showing (a) that the data are relevant, material and
necessary to his defense and (b) that no less intrusive means of gaining the information are
extant. This showing must demonstrate what the materials are expected to show with
sufficient specificity to allow the trial judge to make an independent judgment thereon.
Appellants Farber and the Times should then be given an opportunity to rebut Jascalevich's
showing. If the judge finds that any or all of the requested data are irrelevant, unnecessary
or immaterial, he must quash the subpoena as to such materials.
(3) If the judge finds that Jascalevich has made a threshold showing with respect to any of
the subpoenaed materials, he should order these materials and only these materials

produced for in camera inspection. In order that appellants' rights be infringed to the least
extent possible, appellants should be permitted to delete the names of informants and any
other identificational indicia during this stage of the proceedings.
(4) After the judge has inspected the material, he should make a determination as to
whether any portion is relevant, material and necessary to Dr. Jascalevich's defense. He
must also decide whether that material will probably be admissible at trial. United States v.
Nixon, supra, 418 U.S. at 714, 94 S.Ct. 3090. If these criteria are satisfied, then that portion
of the material should be released to Jascalevich. All other material must be returned to
appellants. Counsel should have an opportunity to be heard.
*293 (5) Then judge must make findings of fact and conclusions of law at each stage of the
proceedings.
(6) Either party may seek leave to appeal the judge's decision as to in camera inspection or
release of information after inspection.
Throughout all stages of the proceeding, the judge should constantly keep in mind the
strong presumption against disclosure of protected materials. All doubts concerning
disclosure should be resolved in favor of non-disclosure.
I am mindful that this inquiry will take place in the context of an ongoing murder trial and
that delays are undesirable. Therefore, I do not expect that this hearing will be drawn out.
The trial judge possesses sufficient powers to ensure that the hearing proceeds
expeditiously.
It must be emphasized that such a hearing is to be conducted only in cases in which a
criminal defendant asserts that privileged data are necessary to his defense. In all other
situations in which the News Media privilege is invoked, no constitutional concerns will exist.
Hence, given the absolute nature of the statutory privilege, compelled disclosure is
forbidden.
No such hearing was held prior to the trial judge's order that the subpoenaed materials be
produced for in camera inspection. The majority admits as much. See ante at 277. However,
instead of remanding the cause, it invokes its original jurisdiction under R. 2:10-5 in a
"patchwork" attempt to make findings of fact essential to its disposition of this controversy.
In view of the importance of the questions presented and the state of the record below, this
venture into the province of the trial judge is both unwarranted and unwise. An appellate
court should rarely engage in original factfinding; its distance from the proceedings below
makes factual judgments very difficult. It is not rational to expect that a Court so removed
will adequately perform this function. When the issues are of constitutional magnitude, such
an undertaking is especially undesirable. A decision whose *294 impact will be felt by many
persons in many places should not be the product of an incomplete record.
Even were I to agree that original factfinding is appropriate, I could not sanction the manner
in which the majority has found its "facts." The trial judge's conclusions upon which the
majority places so much reliance were not the product of a hearing below in which
appellants were allowed to participate. Rather, these conclusions derive solely from the
judge's examination of a handful of newspaper articles. See State v. Jascalevich, 158 N.J.
Super. 488, 493 (Law Div. 1978). The "further support" upon which the majority bases its
findings of fact, see ante at 278-281, does not even derive from the trial judge. Instead, the
majority's "findings" are taken substantially verbatim from conclusory allegations contained
in the statement of facts section of the brief for Dr. Jascalevich. This amalgam of post-hoc,
ex parte, and newspaper article "factfinding" is not my idea of what a Shield Law hearing is
all about.

IV Conclusion
I believe the majority holding results in the Shield Law leaving a reporter unshielded and the
free press not-so-free. Justice Frankfurter once noted that any court can properly decide a
case if only a single principle is in controversy. The difficulty is that this case entails more
than one so-called principle. It is therefore a hard case that is destined to make bad law. The
victims will be the press, the courts and the public interest.
Appellants were never accorded a Shield Law hearing prior to the imposition against them of
contempt sanctions. Indeed, they were not even given an opportunity to argue that such a
hearing should be held. Instead, they were told that a hearing would be forthcoming only
after the material had been turned over for in camera inspection. The majority's attempt to
compensate for these procedural infirmities *295 by engaging in ad hoc factfinding is "too
little, too late." It did not have to happen this way. This constitutional confrontation should
have been avoided by granting a fair hearing to Farber and the New York Times under the
guidelines mandated above. If the ultimate evidential test had been met by Dr. Jascalevich
in accordance with those guidelines, Mr. Farber would have had to comply with the trial court
order for in camera inspection. No one is above the law.
Since appellants were denied "an opportunity to be heard" prior to the imposition of
sanctions against them, the judgments below must be vacated.
HANDLER, J., dissenting.
This appeal poses significant and novel issues the resolution of which will endure long after
the underlying, highly publicized criminal case has become history. We are required on the
appellate level to determine in the context of an ongoing criminal prosecution, now in its
seventh month of continuous trial, whether judgments for contempt and the imposition of
civil and punitive sanctions were properly visited upon a newspaper and its reporter for their
refusal to obey subpoenas requiring that they turn over to the trial court for its in camera
inspection information related to the case but generated in the course of news gathering
and news publication. This Court now rules that the subpoenas duces tecum to produce the
contested material for the trial judge's in camera inspection were enforceable and that the
refusal of the reporter and the newspaper to comply with the trial court's compulsive turnover order properly subjected them to civil and punitive sanctions for contempt, this
notwithstanding their claim that they had no adequate opportunity to demonstrate the
invalidity of the subpoenas and applicability of a newsman's privilege.
Because I am in substantial accord with much of the reasoning of the Court, it is with
misgivings that I voice a dissent. I subscribe to the view that the newsman's privilege *296 is
not predicated on the First Amendment and that under the New Jersey media privilege law,
N.J.S.A. 2A:84A-21, it is not absolute and unqualified; the privilege must yield in appropriate
circumstances to a defendant's constitutional right to material evidence in a criminal trial.
Further, I agree generally that in camera inspection of private or confidential matter by a
court may be necessary on a requisite showing in a given case to settle a legal tug of war for
the information. I would, however, reach a different result and order a remand in this case in
light of the inadequacy of the present record to justify the judgments of contempt. I would
do so because of the strength of the newsman's privilege under the New Jersey shield law
and the rigorous standards which ought to be applied in determining whether in camera
inspection of contested information is appropriate in the face of a claim based on that
privilege.
I
I agree with the Court that the appellants do not have a privilege founded upon the freedom
of press clause of the First Amendment to the United States Constitution. The First

Amendment does not stand as a bar to the issuance of a subpoena to a newsman to produce
information material to the defense of a criminal case. The United States Supreme Court in
Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), effectively so
decided:
* * * We are asked to create another [privilege] by interpreting the First Amendment to grant
newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. * * *
On the records now before us, we perceive no basis for holding that the public interest in law
enforcement and in ensuring effective grand jury proceedings is insufficient to override the
consequential, but uncertain, burden on news gathering that is said to result from insisting
that reporters, like other citizens, respond to relevant questions *297 put to them in the
course of a valid grand jury investigation or criminal trial.
[408 U.S. at 690-691, 92 S.Ct. at 2661, 33 L.Ed.2d at 644-645; footnote omitted][*]
See also Houchins v. KQED, 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978); Zurcher v.
Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); Pell v. Procunier, 417
U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14
L.Ed.2d 179, reh. den. 382 U.S. 873, 86 S.Ct. 17, 15 L.Ed.2d 114 (1965); United States v.
Liddy, 354 F. Supp. 208 (D.D.C. 1972); In re Bridge, 120 N.J. Super. 460 (App. Div.), certif.
den. 62 N.J. 80 (1972), cert. den. 410 U.S. 991, 93 S.Ct. 1500, 36 L.Ed.2d 189 (1973); Annot.,
"Privilege of Newspaper or Magazine and Persons Connected Therewith Not to Disclose
Communications to or Information Acquired by Such a Person", 7 A.L.R.3d 591 (1966).
It cannot be overemphasized that despite the absence in the First Amendment of any
absolute privilege in favor of a newsman to resist claims for his information in the context of
a criminal proceeding, the Amendment does embody constitutional values which are
necessarily incidental to a free press in our democratic society. Nebraska Press Association v.
Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Branzburg v. Hayes, supra, 408
U.S. at 681, 92 S.Ct. at 2656, 33 L.Ed.2d at 639; New York Times Co. *298 v. United States,
403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed. 2d 822 (1971); Curtis Publishing Co. v. Butts, 388 U.S.
130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, reh. den. 389 U.S. 889, 88 S.Ct. 11, 13, 19 L.Ed.2d 197,
198 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
(1964); State v. Allen, 73 N.J. 132 (1977). Thus, while Justice White in Branzburg eschewed a
balancing test to determine whether there was a privilege to refuse to disclose information
(408 U.S. at 701-706, 92 S.Ct. at 2666-2669, 33 L.Ed.2d at 651-654), he nevertheless made
it clear that the subject matter of the testimony and the relevancy of any material sought by
a subpoena are legitimate questions to be raised and weighed:
Finally, as we have earlier indicated, news gathering is not without its First Amendment
protections, and grand jury investigations if instituted or conducted other than in good faith,
would pose wholly different issues for resolution under the First Amendment. Official
harassment of the press undertaken not for purposes of law enforcement but to disrupt a
reporter's relationship with his news sources would have no justification. Grand juries are
subject to judicial control and subpoenas to motions to quash. We do not expect courts will
forget that grand juries must operate within the limits of the First Amendment as well as the
Fifth.
[408 U.S. at 707-708, 92 S.Ct. at 2670, 33 L.Ed.2d at 655; footnote omitted].
Justice Powell elaborated on that aspect of the majority decision in a concurring opinion:
As indicated in the concluding portion of the opinion, the Court states that no harassment of
newsmen will be tolerated. If a newsman believes that the grand jury investigation is not
being conducted in good faith he is not without remedy. Indeed, if the newsman is called

upon to give information bearing only a remote and tenuous relationship to the subject of
the investigation, or if he has some other reason to believe that his testimony implicates
confidential source relationships without a legitimate need of law enforcement, he will have
access to the Court on a motion to quash and an appropriate protective order may be
entered. The asserted claim to privilege should be judged on its facts by the striking of a
proper *299 balance between freedom of the press and the obligation of all citizens to give
relevant testimony with respect to criminal conduct. The balance of these vital constitutional
and societal interests on a case-by-case basis accords with the tried and traditional way of
adjudicating such questions.
[408 U.S. at 709-710, 92 S.Ct. at 2671, 33 L.Ed.2d at 656; footnote omitted].
It is, I believe, in necessary recognition of the First Amendment concern for the unfettered
functioning of the news media in a free and democratic society that many courts have
espoused the "balancing" approach articulated by Justice Powell. In Brown v.
Commonwealth, 214 Va. 755, 204 S.E.2d 429 (Sup. Ct.), cert. den. 419 U.S. 966, 95 S.Ct.
229, 42 L.Ed.2d 182 (1974), the Virginia Supreme Court, relying on Branzburg, held that the
reporter had a privilege "related to the First Amendment" to retain the confidentiality of his
sources; since that privilege, however, was not a right guaranteed by the First Amendment it
could be subordinated but
* * * only when the defendant's need is essential to a fair trial. Whether the need is essential
to due process must be determined from the facts and circumstances in each case. We are
of the opinion that when there are reasonable grounds to believe that information in the
possession of a newsman is material to proof of any element of a criminal offense, or to
proof of the defense asserted by the defendant, or to a reduction in the classification or
gradation of the offense charged, or to a mitigation of the penalty attached, the defendant's
need to acquire such information is essential to a fair trial; when such information is not
otherwise available, the defendant has a due process right to compel disclosure of such
information and the identity of the source; and any privilege of confidentiality claimed by the
newsman must, upon pain of contempt, yield to that right.
[204 S.E.2d at 431].
See also Farr v. Pitchess, 522 F.2d 464 (9 Cir.1975), cert. den. 427 U.S. 912, 96 S.Ct. 3200,
49 L.Ed.2d 1203 (1976); State v. St. Peter, 132 Vt. 266, 315 A.2d 254 (Sup. Ct. 1974); cf.
United States v. Liddy, supra.
*300 These decisions take Branzburg perhaps further than justified by a flat reading of either
its majority or concurring opinion. They nevertheless show, as does Branzburg, that the
reporter's conduct in obtaining and recounting news is a matter of constitutional
consideration. A newsman's interest in the gathering of news is an indispensable component
in its dissemination and a vital incident to freedom of the press. See State v. Allen, supra, 73
N.J. at 170-171 (Schreiber, J., concurring). Also New York Times Co. v. Sullivan, supra, 376
U.S. at 270, 84 S.Ct. at 720-721, 11 L.Ed.2d at 700-701; Associated Press v. United States,
326 U.S. 1, 20, 65 S.Ct. 1416, 1424-1425, 89 L.Ed. 2013, 2030 (1945); Id. 326 U.S. at 28-29,
65 S.Ct. at 1428-1429, 89 L.Ed. at 2034-2035 (Frankfurter, J., concurring); Grosjean v.
American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660, 668-669 (1936). See
also Saxbe v. Washington Post, 417 U.S. 843, 862-863, 94 S.Ct. 2811, 2821, 41 L.Ed.2d 514,
526-527 (1974) (Powell, J., dissenting). That interest is therefore entitled to protection. In this
perspective the reporter stands apart from the ordinary citizen, and although he is not
thereby shed of the burdens of citizenship and must respond as any citizen to legal process,
he should not needlessly be hobbled in the pursuit and presentation of news. Constraints
upon the news media should therefore be tolerated only when they are essential in the good
faith discharge of legitimate governmental objectives, or when clearly required for the

vindication of individual constitutional rights. We are here confronted with such a case and it
is in this framework that the fundamental, contending claims of the principals should be
assessed.
II
The Supreme Court in Branzburg made it clear that states have complete freedom of action
"within First Amendment limits, to fashion their own standards ... as to a ... newsman's *301
privilege, either qualified or absolute." 408 U.S. at 706, 92 S.Ct. at 2669, 33 L.Ed.2d at 654.
Appellants contend vigorously that the New Jersey Legislature by enacting L. 1977, c. 253
fashioned an absolute privilege and thereby obviated any requirement for balancing or
weighing its application against a claim for material information even in a criminal
proceeding. In advancing this argument, appellants build upon the Attorney General's
assertion that the present statutory privilege reflects "a purposeful legislative intention and
State policy to go beyond the requirements of the Federal and State Constitutions * * * and
to protect the press and representatives thereof from any disclosure, even to the court * * *."
They conclude that the "law itself strikes the balance in favor of a privilege, in all non-waived
situations, for a journalist `to refuse to disclose * * * to (sic: in) any court' [N.J.S.A. 2A:84A21; Evid. R. 27] his sources or information."
While the statutory language by its literal, facial terms appends no qualifications to the
privilege for newsmen to withhold information, it is difficult to attribute to the Legislature an
intent to create an absolute privilege. When enacted it was thoroughly established in this
jurisdiction that statutory privileges obstruct truth and ought to be construed restrictively, In
re Selser, 15 N.J. 393, 405-407 (1954); also State v. Jamison, 64 N.J. 363, 375 (1974); In re
Richardson, 31 N.J. 391, 396-397 (1960); Hansen v. Janitschek, 31 N.J. 545 (1960) rev'g on
dissenting opinion of Conford, J.A.D., 57 N.J. Super. 418, 433 (App. Div. 1959); L.J. v. J.B., 150
N.J. Super. 373, 378-380 (App. Div. 1971); Metalsalts Corp v. Weiss, 76 N.J. Super. 291, 297
(Ch. Div. 1962), and "in sensible accommodation to the aim of a just result", State v. Briley,
53 N.J. 498, 506 (1969); In re Murtha, 115 N.J. Super. 380, 385-386 (App. Div. 1971); State v.
Roma, 140 N.J. Super. 582, 589 (Law Div.), 143 N.J. Super. 504 (Law Div. 1976)
(supplemental opinion); see D. v. D., 108 N.J. Super. 149 (Ch. Div. 1969). It was also
axiomatic in our law that no claimant of a privilege can *302 be the final judge of his own
claim, a rule recognized in innumerable contexts. In re Addonizio, 53 N.J. 107, 116-117
(1968); In re Boyd, 36 N.J. 285, 286-287 (1962); In re Boiardo, 34 N.J. 599, 602 (1961); State
v. DeCola, 33 N.J. 335, 350 (1960); In re Selser, supra, 15 N.J. at 404-405; State v. Toscano,
13 N.J. 418, 423 (1953); In re Pillo, 11 N.J. 8, 19-20 (1952); In re Ippolito, 145 N.J. Super. 262,
266-267 (App. Div. 1976); Zucker v. Silverstein, 134 N.J. Super. 39, 53 (App. Div. 1975); State
v. Craig, 107 N.J. Super. 196, 198-199 (App. Div. 1969). Moreover, restrictive evidentiary
rules ordinarily must yield to the fundamental rights of a defendant to call and confront
witnesses, such as invoked in this very case. See Davis v. Alaska, 415 U.S. 308, 315-320, 94
S.Ct. 1105, 1110-1112, 39 L.Ed.2d 347, 353-356 (1974); Chambers v. Mississippi, 410 U.S.
284, 294-302, 93 S.Ct. 1038, 1045-1049, 35 L.Ed.2d 297, 308-313 (1973); Washington v.
Texas, 388 U.S. 14, 17-19, 87 S.Ct. 1920, 1922-1923, 18 L.Ed.2d 1019, 1022-1023 (1967);
Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639, 645 (1957);
State v. Briley, supra; State v. Roma, supra, 140 N.J. Super. at 587-592.
I can therefore agree with the Court that the privilege under the New Jersey shield law is not
absolute. It would be a mistake, however, to impute to the Legislature an intent in creating
the privilege to furnish only middling protection for the confidentiality of the newsman's
work. Rather it seems clear that short of making the privilege absolute, the Legislature
sought to establish the strongest possible protection for the newsman and the news media.
This is evinced not only by the clear and direct terms of the statute, N.J.S.A. 2A:84A-21,
which the Court has noted is one of the most strongly expressed in the country. It is
demonstrated by the legislative and judicial evolution of the privilege. That has been a

history starting at a point when there was no privilege at all, In re Grunow, 84 N.J.L. 235
(Sup. Ct. 1913), through sequential legislation creating and expanding *303 the protection
afforded the news media and the newsman. Compare L. 1933, c. 167 (protecting "source" of
any information) with L. 1960, c. 52, 21 (protecting "source, author, means, agency or
person from * * * whom information * * * was procured * * *") and L. 1977, c. 253, N.J.S.A.
2A:84A-21 (protecting "any news or information obtained in the course of [a reporter's]
professional activities whether or not it is disseminated"). The most recent amendment, the
current shield law, L. 1977, c. 253, was a direct answer to In re Bridge, supra, and
Branzburg, which allowed grand jury access to a reporter's material, revealing a purpose on
the part of the Legislature to accord the broadest protection for the news media and
reporters.
This legislative and judicial course highlights the significant public policy embodied in the
statutory newspapermen's privilege. It seems to me that the majority of this Court does not
give full weight to this public policy and, perhaps for that reason, minimizes the serious
impact which an in camera inspection, with all its protective accoutrements, has upon the
newsman's privilege.
Even though courts have approved the use of in camera inspection when a claim of privilege
is asserted, at best it is a temporizing solution borne of a paradox the need to see evidence
in order to determine whether the evidence can be seen. The dilemma was aptly perceived
by Justice Brennan (then of this Court) in In re Pillo, supra 11 N.J. at 20, drawing from Judge
Learned Hand in United States v. Weisman, 111 F.2d 260, 262 (2 Cir.1940): "The only
practicable solution is to be content with the door's being set a little ajar, and while at times
this no doubt partially destroys the privilege, and at times it permits suppression of
competent evidence, nothing better is available." Also United States v. Melchor Moreno, 536
F.2d 1042 (5 Cir.1976); In re U.S. Hoffman Can Corp., 373 F.2d 622 (3 Cir.1967). It must be
stressed nevertheless that the in camera inspection is in fact an incursion into
confidentiality. Cf. State v. *304 Milligan, 71 N.J. 373, 393 n. 12 (1976); State v. Oliver, 50 N.J.
39 (1967). We cannot assume that such a loss of confidentiality, even at the hands of
judges, does not obtrude upon the freedom of the press which the privilege is designed to
secure. New York Times Co. v. Jascalevich, ___ U.S. ___, 99 S.Ct. 11, 58 L.Ed.2d 38 (July 12,
1978, Marshall, J., denying reapplication for stay); see Murasky, "The Journalist's Privilege:
Branzburg and Its Aftermath", 52 Tex. L. Rev. 820, 857-866 (1974).
While the assertion of privilege may not defeat a need for evidence, at least for an in
camera inspection, and especially when requested to satisfy a defendant's constitutional
right in a criminal trial, the presence of the privilege adds measurably to the difficulty in
justifying such disclosure. Cf. United States v. Marshall, 377 F. Supp. 1326, aff'd sub nom.
United States v. Mitchell, 377 F. Supp. 1326, aff'd sub nom. L.Ed.2d 1039 (1974); also Nixon
v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977);
Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1977).
Since the in camera inspection itself "partially destroys the privilege" and the privilege in
this case is deserving of the strongest support the standards for permitting even so limited a
breach of confidentiality should be exacting. Certain initial or threshold showings of need
must be required and the burden of convincing the court that such need exists should be a
substantial one. Thus an in camera inspection of a newspaperman's work or work product
ought not be allowed unless a defendant has demonstrated in convincing fashion that (1)
such information probably contains evidence relevant and material to the question of guilt;
(2) in the context of the criminal trial such information appears necessary in the search for
truth; and (3) there are no other feasible alternative sources or less intrusive means by
which the same evidence can be procured. Additionally, it should be shown that the request
for information is not overbroad, oppressive or unreasonable. These criteria overlap those
generally applicable *305 to the issuance and enforcement of subpoenas even in the
absence of a claim of privilege. R. 1:9-2; e.g., State v. Cooper, 2 N.J. 540 (1949); cf.

Schlossberg v. Jersey City Sewerage Authority, 15 N.J. 360 (1954); Wasserstein v. Swern and
Co., 84 N.J. Super. 1, 6-7 (App. Div. 1964); State v. Asherman, 91 N.J. Super. 159, 162 (Cty.
Ct. 1966). The existence of the privilege, however, enhances the quality of proofs required
for the production of evidence. Where the claims for subpoenaed materials implicate
privileged interests, and the privilege invoked is of singular importance, as here, the court's
insistence upon the requisite showing of need should be unyielding and meticulous. Cf.
United States v. Nixon, supra, 418 U.S. at 697-702, 94 S.Ct. at 3102-3105, 41 L.Ed.2d at
1058-1061.
III
In applying these principles to this case, we are confronted with certain disabling limitations
not of our making. In our appellate review of the contempt judgments on an accelerated
basis we have not been made privy to the total record or even a substantial part thereof. In
view of the conclusory expression of the trial court judge in justification of his June 30 order
for in camera inspection and the absence of any findings or exposition of his reasoning, I do
not believe we are in a position to assess the validity of the order or to consider the
reasonableness of appellants' refusal to obey that order.
It is argued by defendant that there is a record basis for the judge's conclusion that it would
be "impossible" to weigh appellants' substantive claims without an in camera inspection of
the subpoenaed material. The majority has adopted defendant's rendition of the record to
show that there are several instances where appellant Farber is likely to have relevant and
necessary information. Unfortunately we do not have the slightest hint that the trial judge
contemplated these examples in reaching his ultimate conclusion or in what *306 way he
might have considered that information to be relevant and necessary. Rather it appears so
far that the basis for the court's order for in camera inspection was the same advanced for
the initial and second certificates of materiality issued by the trial judge. These certificates
disclose some likelihood that some material sought is somewhat relevant; they yield only a
bare conclusion as to its necessity, are silent as to alternative sources and are indifferent to
matters of overbreadth, oppressiveness and unreasonableness. The determination of the
New York court as to the adequacy of the initial certificate of materiality, which resulted in
the issuance of the subpoenas, though buttressed by a hearing as required under the
Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal
Proceedings (N.J.S.A. 2A:81-18 et seq.); N.Y. Crim. Proc. L. 640.10 (McKinney 1971), was not
based on matters of record which appreciably augmented that furnished in connection with
the certificate of materiality. Moreover, it was assumed by the New York court that
appellants would be given a further opportunity to demonstrate on grounds of
reasonableness and privilege that the subpoenas should not be enforced.
It may be that the ultimate conclusion of the trial judge as to the necessity for in camera
inspection is sound and can be supported by the record. But for us to so rule on hypothetical
findings extrapolated from only a small part of a huge record would be a flight of fancy. This
is not a proper case for the exercise of original jurisdiction. R. 2:10-5. This is peculiarly so in
view of the high order of the proofs which I consider requisite to establish the threshold
requirements of relevance, necessity and the absence of alternatives. In light of the gravity
of the issues and the complexity of the record, only a tip of which has been exposed to us, it
should be the obligation and province of the trial judge to explain to the litigants, and the
appellate court, why he has ordered an in camera inspection of confidential matter. Cf.
United States v. Nixon, supra.
*307 A party whose claim of a strong statutory privilege has been thus overborne and who
has been visited with a compulsory turnover order which constitutes a real invasion of
confidentiality, and has been adjudicated guilty of the crime of contempt and subjected to
onerous civil as well as punitive sanctions, is entitled to redress. The proper solution, I feel,
would be a remand to complete the record. This can be done by the trial judge making

findings in support of his conclusion that an in camera inspection of the subpoenaed

evidence is now necessary as a prelude to further proceedings in the criminal trial. This will
enable us to determine whether the requisite showing has been made with respect to the
threshold issues and to accord appellants the judicial review to which they are entitled.
Since it appears that the judge is thoroughly immersed in the case and conversant with all of
its facets and that the parties have had numerous opportunities to impress upon the trial
court their positions with respect to the materials sought, a further hearing at this juncture is
not required as a matter of fair procedure or due process. Because the issues engage so
completely the knowledge and discretion of the trial judge, however, he should not be
precluded from permitting the parties to supplement the record by affidavit or limited
testimony if this appears desirable or necessary. In view of the exigencies of the trial, this
course is not mandated. These same exigencies reasonably dictate that this Court should
retain justification of this proceeding and direct that the trial judge submit his findings within
a few days.
Under these circumstances, the judgments of contempt should be vacated. Criminal
contempt proceedings are attended with virtually the same solemnity as ordinary criminal
actions. N.J. Dept. of Health v. Roselle, 34 N.J. 331 (1961); In re Buehrer, 50 N.J. 501 (1967).
These include notice of the essential elements of the charges and a reasonable opportunity
to challenge their sufficiency. In re Tiene, 17 N.J. 170 (1954). The appellants did not have an
adequate opportunity to confront the merits of the enforcement *308 order of June 30, 1978,
which constitutes the basis of the contempt proceedings. In the absence of any disclosure by
the trial judge as to his specific reasons compelling the in camera inspection, there was no
viable chance for appellants to defend against the order to enforce on the grounds of
privilege and the invalidity of the subpoenas. Since the hearings in both contempt
proceedings, that in aid of a litigant as well as the criminal action, were substantially
merged, the vice of inadequate notice and opportunity to challenge infects each. I would
therefore vacate both contempt judgments.
For affirmance Chief Justice HUGHES and Justices MOUNTAIN, SULLIVAN, CLIFFORD and
SCHREIBER 5.
For reversal Justices PASHMAN and HANDLER 2.
NOTES
[1] The First Amendment of the United States Constitution reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.
[2] The term "shield law" is commonly and widely applied to statutes granting newsmen and
other media representatives the privilege of declining to reveal confidential sources of
information. The New Jersey shield law reads as follows:
Subject to Rule 37, a person engaged on, engaged in, connected with, or employed by news
media for the purpose of gathering, procuring, transmitting, compiling, editing or
disseminating news for the general public or on whose behalf news is so gathered, procured,
transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any
legal or quasi-legal proceeding or before any investigative body, including, but not limited
to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative
committee, or elsewhere:

a. The source, author, means, agency or person from or through whom any information was
procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited,
disseminated, or delivered; and
b. Any news or information obtained in the course of pursuing his professional activities
whether or not it is disseminated.
The provisions of this rule insofar as it relates to radio or television stations shall not apply
unless the radio or television station maintains and keeps open for inspection, for a period of
at least 1 year from the date of an actual broadcast or telecast, an exact recording,
transcription, kinescopic film or certified written transcript of the actual broadcast or
telecast.
********
Unless a different meaning clearly appears from the context of this act, as used in this act:
a. "News media" means newspapers, magazines, press associations, news agencies, wire
services, radio, television or other similar printed, photographic, mechanical or electronic
means of disseminating news to the general public.
b. "News" means any written, oral or pictorial information gathered, procured, transmitted,
compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on,
connected with or employed by a news media and so procured or obtained while such
required relationship is in effect.
c. "Newspaper" means a paper that is printed and distributed ordinarily not less frequently
than once a week and that contains news, articles of opinion, editorials, features,
advertising, or other matter regarded as of current interest, has a paid circulation and has
been entered at a United States post office as second class matter.
d. "Magazine" means a publication containing news which is published and distributed
periodically, has a paid circulation and has been entered at a United States post office as
second class matter.
e. "News agency" means a commercial organization that collects and supplies news to
subscribing newspapers, magazines, periodicals and news broadcasters.
f. "Press association" means an association of newspapers or magazines formed to gather
and distribute news to its members.
g. "Wire service" means a news agency that sends out syndicated news copy by wire to
subscribing newspapers, magazines, periodicals or news broadcasters.
h. "In the course of pursuing his professional activities" means any situation, including a
social gathering, in which a reporter obtains information for the purpose of disseminating it
to the public, but does not include any situation in which a reporter intentionally conceals
from the source the fact that he is a reporter, and does not include any situation in which a
reporter is an eyewitness to, or participant in, any act involving physical violence or property
damage. [N.J.S.A. 2A:84A-21 and 21a]
[3] The Sixth Amendment of the United States Constitution reads as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have the Assistance of
Counsel for his defence.
[4] Article 1, 10 of the Constitution of the State of New Jersey reads as follows:
In all criminal prosecutions the accused shall have the right to a speedy and public trial by
an impartial jury; to be informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining witnesses in his
favor; and to have the assistance of counsel in his defense.
[5] Compare the informer's privilege where disclosure of identity may sometimes be
required. State v. Milligan, 71 N.J. 373 (1976); State v. Oliver, 50 N.J. 39 (1967); Roviaro v.
United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed. 639 (1957).
[1] Counsel for Jascalevich intimates that a reporter who informs the public by authoring a
book is somehow less deserving of Shield Law protection than one who articulates his
findings in a newspaper. Publishing journalistic books for money is no less an illustrious way
to perform the function of the press than is writing newspaper articles for a salary.
[*] This holding was underscored by Justice White, the author of the majority opinion in
Branzburg, who stated in the course of this litigation on an application for a stay of the order
for civil sanctions:
There is no present authority in this Court either that newsmen are constitutionally
privileged to withhold duly subpoenaed documents material to the prosecution or defense of
a criminal case or that a defendant seeking the subpoena must show extraordinary
circumstances before enforcement against newsmen will be had. (Citations omitted) [New
York Times Co. v. Jascalevich, ___ U.S. ___, 99 S.Ct. 6, 10, 58 L.Ed.2d 25 (1978)].