Recantation of testimony not a ground to reopen a case


Persida Acosta

Dear PAO,
My uncle was convicted for murder last year. The prosecution presented a witness who primarily claimed that he saw my uncle fleeing from the scene of the crime. Up to now, our family still believes that the witness lied and that my uncle is innocent. Can the case of my uncle be reopened for a new trial in case we can convince the witness to withdraw his testimony?
Sincerely yours,

Dear Xander,
Pursuant to Section 2, Rule 121 of the Rules of Court, after a judgment of conviction, a criminal case may only be set for a new trial based on the following grounds:

“SEC. 2. Grounds for a new trial. – The court shall grant a new trial on any of the following grounds:
The errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial;

The new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment.”

It is clear from the foregoing that the recantation by a witness of his testimony in open court cannot be considered as an irregularity committed during the proceedings of the trial of your uncle. His presentation allowed the defense to cross-examine him and discover if his testimony was true or not.

In People v. Aliviado (G.R. No. 113782, 14 August 1995), penned by the former Chief Justice Hilario Davide Jr., the Supreme Court held that in order for an evidence to be considered newly discovered, the following requisites must be present:

“(a) the evidence was discovered after the trial;

(b) such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and

such evidence is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, would probably change the judgment.” (Emphasis supplied)

Clearly, a testimony of a witness already presented in the course of a trial of a criminal case cannot be considered new evidence for purposes of a new trial.

Furthermore, our courts have looked at recantation of testimony with disfavor. In People v. Fontanilla (G.R. No. 147662-63, 15 August 2003), penned by former Associate Justice and now Ombudsman Conchita Carpio-Morales, the Supreme Court explained:

“Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who has given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses.”

Thus, it is evident from law and jurisprudence that even if you successfully convince the witness who testified against your uncle to recant his testimony, the recantation will not be a sufficient ground to reopen the case of your uncle for a new trial.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to


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