An affidavit of desistance or pardon is not a ground for the dismissal of an action, once it has been instituted in court

As admitted by appellant, the alleged Affidavit of Desistance of the victim was never identified by her, but submitted in court only after the institution of the rape cases. Such being the case, the Affidavit -- even when construed as a pardon in the erstwhile "private crime" of rape -- is not a ground for the dismissal of the criminal cases, since the actions have already been instituted. To justify the dismissal of the Complaints, the pardon should have been made prior to the institution of the criminal actions. 

In People v. Ramirez, Jr., the Court was even more circumspect:

As a rule, a recantation or an affidavit of desistance is viewed with suspicion and reservation. Jurisprudence has invariably regarded such affidavit as exceedingly unreliable, because it can easily be secured from a poor and ignorant witness, usually through intimidation or for monetary consideration. Moreover, there is always the probability that it would later on be repudiated, and criminal prosecution would thus be interminable.

Indeed, the Affidavit of Desistance of private complainant is highly suspect. Apparently, she executed it on the basis of a consideration of P5,000, which was later increased to P100,000. After her testimony had been rendered, however, appellant refused to pay the amount agreed upon, thereby prompting her to recant the Affidavit.

She had stated therein that "the accused is indeed innocent of the crimes charge[d] since in truth, he never molested me sexually as charged." Such statement was a mere legal conclusion, bereft of any details or other indicia of credibility, much less truth. More likely, it emanated not from this young girl’s mouth, but from a trained legal mind. Moreover, while she affirmed her Affidavit on the stand, she also declared, on clarificatory question from the judge, that she was 14 years old when she was molested and raped by appellant. These facts raise doubts as to the reliability of her statements in her Affidavit.

At this point, we reiterate that, by itself, an affidavit of desistance or pardon is not a ground for the dismissal of an action, once it has been instituted in court. In the present case, private complainant lost the right or absolute privilege to decide whether the rape charge should proceed, because the case had already reached and must therefore continue to be heard by the court a quo. (People v. Salazar, G.R. No. 181900, October 20, 2010)


Affidavits of desistance or recantation made after conviction

It is settled that an affidavit of desistance made by a witness after conviction of the accused is not reliable, and deserves only scant attention. The affidavits of desistance filed by the private, complainant and her witness were executed twelve (12) days after the promulgation of judgment of conviction, and are clearly mere afterthoughts. Hence, they cannot have the effect of negating a previous credible declaration. (People v. XXX, G.R. No. 239906, August 26, 2020)


Courts must not automatically exclude the original testimony solely on the basis of the recantation

The contention has no merit. To begin with, the Affidavit executed by eyewitness Tessie Asenita is not a recantation. To recant a prior statement is to renounce and withdraw it formally and publicly. In her affidavit, Tessie Asenita did not really recant what she had said during the trial. She only said she wanted to withdraw her testimony because her father, Leonardo Tacadao, Sr., was no longer interested in prosecuting the case against accused-appellant. Thus, her affidavit stated:

3. That inasmuch as my father, Leonardo Tacadao, Sr., the complainant therein, was no longer interested to prosecute the case as manifested in the Sworn Affidavit of Desistance before the Provincial Prosecutor, I do hereby WITHDRAW and/or REVOKE my testimony of record to confirm (sic) with my father's desire;

It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and the parties simply because an affidavit withdrawing the testimony is subsequently presented by the defense. In the first place, any recantation must be tested in a public trial with sufficient opportunity given to the party adversely affected by it to cross-examine the recanting witness. In this case, Tessie Asenita was not recalled to the witness stand to testify on her affidavit. Her affidavit is thus hearsay. It was her husband, Roque Asenita, who was presented and the matters he testified to did not even bear on the substance of Tessie's affidavit. He testified that accused-appellant was not involved in the perpetration of the crime.

In the second place, to accept the new evidence uncritically would be to make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. For even assuming that Tessie Asenita had made a retraction, this circumstance alone does not require the court to disregard her original testimony. A retraction does not necessarily negate an earlier declaration. For this reason, courts look with disfavor upon retractions because they can easily be obtained from witnesses usually through intimidation or for monetary considerations. Hence, when confronted with a situation where a witness recants his testimony, courts must not automatically exclude the original testimony solely on the basis of the recantation. They should determine which testimony should be given credence through a comparison of the original testimony and the new testimony, applying the general rules of evidence. (Alonte v. Savellano, G.R. No. 131652 March 9, 1998)


Cases when affidavit of desistance was considered

In Marcelo v. Bungubung, the Court gave weight to the affidavit of desistance filed by the complainant in absolving Leopoldo F. Bungubung, then manager of Port District Office of the Philippine Ports Authority of grave misconduct. The complainant, in her affidavit of desistance, explicitly admitted that he merely fabricated all his allegations of corruption against Bungubung. According to the Court, the express repudiation in the affidavit of desistance of the material points in the complaint-affidavit may be admitted into evidence, absent proof of fraud or duress in its execution.

Similarly, in Daquioag v. Ombudsman (Daquioag), the Court also cited the affidavit of desistance of complainant in exonerating the respondent public officer of grave misconduct. In Daquioag, the complainant stated in her affidavit of desistance that she mistakenly identified petitioner public officer as the perpetrator of the offense committed against her relative.

Here, the affidavits of desistance executed by private respondents state that after the incident, they conducted their own investigation where they found that there was no clear and ample evidence to believe that their relatives were killed in a rub-out. They also stated that petitioners did not have the motive to kill their relatives. It must be noted that this case sprang from private respondents' filing of complaint-affidavits against P/Supt. Rafael and SPO3 Manuel. The complaint-affidavit of Rochelle, the sister of Michael, which became the foundation of the Ombudsman's theory of a rub-out, even merely contained hearsay evidence of the alleged conversation between the siblings concerning the whereabouts of Michael. Considering that the affidavits of desistance is a complete shift from private respondents' version of the facts, the affidavits of desistance dilute the very foundation of the charges filed against petitioners. (Rafael v. Bermudez, G.R. No. 246128. September 15, 2021)