Sec. 32. Admission by silence. – An
act or declaration made in the presence and within the hearing or observation
of a party who does or says nothing when the act or declaration is such as
naturally to call for action or comment if not true, and when proper and
possible for him to do so, may be given in evidence against him.
Requisites
for admissibility
To be admissible against
a party as an admission by silence, the following requisites must concur:
1. He
must have heard or observed the act or declaration of the other person;
2. He
must have had the opportunity to deny it;
3. He
must have understood the statement;
4. He must have
an interest to object, such that he would naturally have done so, if the
statement was not true;
5. The facts are within his
knowledge; and
6. The fact admitted or the inference
to be drawn from his silence is material to the issue.
Admission
by silence
Cases
Admission
by silence has been traditionally received even in common law as admissible
evidence. The usual pattern for its admissibility involves a statement by a
person in the presence of a party to the action, criminal or civil. The
statement contains assertions against the party, which, if untrue would be
sufficient cause for the party to deny. His failure to speak against the
statement is admissible as an admission.
Suppose
a policeman, upon approaching a group of bystanders, points to one of them and
accuses him to be the killer of a man found dead the night before. The man
pointed at does not respond. He does not deny the accusation. His failure to
respond may be given in evidence against him. The idea of the rule on admission
by silence is that if an accusation is made, and a reasonable person would have
denied the same if it were false, the failure to deny the accusation by the
person accused is an implied admission of the truth of the accusation.
Rule applicable both to criminal and civil
cases
The rule
on admission by silence applies to both criminal and civil cases although must
be received with caution because not every silence is an admission. For
instance, the silence of a person under investigation for the commission of an
offense should not be construed as an admission by silence because of
constitutional reasons (Sec. 2(b), R.A.
7438).
Not
every silence of a party is admissible. It is necessary that: (a) that he heard
and understood the statement; (b) that he was at liberty to make a denial; (c)
that the statement was about a matter affecting his rights or in which he was
interested and which naturally calls for a response; (d) that the facts were
within his knowledge, and; (e) that the fact admitted from his silence is
material to the issue (People vs.
Paragsa, 84 SCRA 105). Thus, in one case, despite the many opportunities
given to the respondent, he refused to comment and present his side. The
gravity of the charges and the weight of the evidence against him would have
prompted an innocent man to come out and clear his name. However, he opted to
maintain his silence. His silence can easily be interpreted as an admission of
guilt (Ortiz vs. De Guzman, A.M. No.
P-03-1708, February 26, 2005; OCA vs. Bernardino, 450 SCRA 88, January 31,
2005).
Rule does not apply
1. If
the statements adverse to the party were made in the course of an official
investigation as where he was pointed out in the course of a custodial
investigation and was neither asked to reply nor comment on such imputations.
2. Or
where the party had a justifiable reason to remain silent (e.g. acting on
advice of counsel)
• Keep in mind that a person under
investigation for the commission of a crime has the right to remain silent and
to be informed of that right
• Rule applies to adverse statements in writing
if the party was carrying on a mutual correspondence with the declarant. If no
such mutual correspondence, rule is relaxed. A prompt response can generally
not be expected if the party still has to resort to a written reply, as opposed
to a statement orally made.
Cases
People v. Paragsa, 84
SCRA 105 (1978) Failure by a supposed rape victim to rebut sweetheart defense
based on testimonial evidence may be taken against her. Requirements for
admission by silence: 1) heard and understood, 2) at liberty to deny, 3)
affects his rights, 4) within his knowledge, and 5) material to the issue
People v. Alegre, 94 SCRA 109 (1979) – silence of accused in
custody during investigation cannot be used as evidence against him
Griffin v. California, 380 U.S. 853 (1965) – court may not
comment on accused’s failure to testify regarding facts within his knowledge
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