Forensic expert blocked from appearing in rape case
MANILA -- A noted forensic pathologist was presented Friday by the prosecution at the Makati Regional Trial Court (RTC) in the ongoing hearing on the Subic rape case.
Defense lawyers, at the same time, filed a motion asking the court to reconsider its "privileged communication" ruling disallowing a medico-legal officer who examined the 22-year-old complainant after the alleged rape from revealing details about the woman.
Appearing as 18th prosecution witness, Dr. Raquel Fortun was presented before RTC Branch 139 Judge Benjamin Pozon to back the medico-legal findings of Dr. Rolando Ortiz who said the complainant's injuries were consistent with rape.
Fortun's expertise in the field of forensic pathology was used in such cases as the killing of Salvador "Bubby" Dacer, 1999 Asian Spirit crash, 1996 Ozone fire disco tragedy, as well as by the United Nation Transitional Authority on East Timor. Aside from these, she has also studied and undergone trainings and seminars on sexual assault cases here and abroad.
Ortiz testified on Thursday that the contusions on the genitals of the alleged rape victim, identified only by the court as "Nicole", were consistent with those of sexual assault victims.
Fortun was not able to render her expertise in Friday's hearing after defense lawyers questioned her qualification to appear as an expert witness.
The defense said it was up to the court to decide whether she would be allowed to appear as such, and the court said it would render a ruling next week.
On the privileged communication ruling, Lance Corporal Keith Silkwood's lawyer Jose Justiniano sought a reconsideration of the court's June 29 decision upholding the objection of the prosecution to Ortiz revealing other details about Nicole.
The prosecution said communication between Ortiz and Nicole on the complainant's past sexual experiences falls under "privileged communication" and Ortiz should not reveal details about it.
In the June 29 hearing, Justiniano and another defense counsel, Antonio Rebusa, asked Ortiz if he had determined that Nicole had engaged in sexual intercourse prior to the alleged rape. Nicole's lawyer Evalyn Ursua objected on the grounds that the information falls under "privileged communication".
Justiniano said the Supreme Court had ruled that confidential communications between physician and patient apply only to civil cases and not criminal ones.
He asked the court to recall Ortiz to the witness stand so he could be subjected to another cross-examination without the cloak of privileged communication.
"To rule otherwise would impair the constitutional and procedural right of the accused to confront the witness against him," the defense lawyer argued.
Pozon then directed the prosecution to submit its comment within five days before he will rule on the motion.
In Friday's proceedings, the defense sought to discredit the qualifications of Fortun to appear as an expert witness, saying her expertise in the area of sexual assault cases is nil, as she has only taken 20 cases in her 11 years as a forensic pathologist.
They likewise asked her why she did not use the term "rape" in the cases that she studied and instead used "sexual assault."
"Sir, we use sexual assault instead of rape since rape has a legal meaning while assault simply refers to violence," the witness answered.
At one point the argument harked back to the controversial death of Ensign Philip Pestaño who was found dead in the bunk of the BRP Bacolod City, a transport ship of the Philippine Navy on December 1995. The case resulted in a Senate investigation.
"Would you agree with me that your findings in that particular case is different from the findings a Senate panel which conducted an investigation in aid of legislation?" asked Justiniano. Fortun replied: "Yes it was but I just rendered my opinion based on the facts presented to me."
Fortun disclosed that defense counsel Benjamin Formoso, counsel for accused Lance Corporal Daniel Smith, asked her on April 5 if she could help them by rendering her services. Fortun told the court she refused since the prosecution had already asked her services a month before.
She likewise said another defense lawyer, Francisco Rodrigo, counsel of accused Staff Sergeant Chad Carpentier, "indirectly" approached her through his father, retired lawyer Benjamin Del Rosario, a month ago. Rodrigo objected to the disclosure, saying that it might constitute a breach of ethics.
The prosecution said this is enough proof that the defense acknowledges her expertise.
"Why in the first place did they have to ask for her services," Ursua said.
The hearing will continue on Monday with the continuation of the testimony of Annaliza Franco, the victim's stepsister, while the court is set to rule on whether to admit Fortun as an expert witness. (AH/Sunnex)
Defense lawyers, at the same time, filed a motion asking the court to reconsider its "privileged communication" ruling disallowing a medico-legal officer who examined the 22-year-old complainant after the alleged rape from revealing details about the woman.
Appearing as 18th prosecution witness, Dr. Raquel Fortun was presented before RTC Branch 139 Judge Benjamin Pozon to back the medico-legal findings of Dr. Rolando Ortiz who said the complainant's injuries were consistent with rape.
Fortun's expertise in the field of forensic pathology was used in such cases as the killing of Salvador "Bubby" Dacer, 1999 Asian Spirit crash, 1996 Ozone fire disco tragedy, as well as by the United Nation Transitional Authority on East Timor. Aside from these, she has also studied and undergone trainings and seminars on sexual assault cases here and abroad.
Ortiz testified on Thursday that the contusions on the genitals of the alleged rape victim, identified only by the court as "Nicole", were consistent with those of sexual assault victims.
Fortun was not able to render her expertise in Friday's hearing after defense lawyers questioned her qualification to appear as an expert witness.
The defense said it was up to the court to decide whether she would be allowed to appear as such, and the court said it would render a ruling next week.
On the privileged communication ruling, Lance Corporal Keith Silkwood's lawyer Jose Justiniano sought a reconsideration of the court's June 29 decision upholding the objection of the prosecution to Ortiz revealing other details about Nicole.
The prosecution said communication between Ortiz and Nicole on the complainant's past sexual experiences falls under "privileged communication" and Ortiz should not reveal details about it.
In the June 29 hearing, Justiniano and another defense counsel, Antonio Rebusa, asked Ortiz if he had determined that Nicole had engaged in sexual intercourse prior to the alleged rape. Nicole's lawyer Evalyn Ursua objected on the grounds that the information falls under "privileged communication".
Justiniano said the Supreme Court had ruled that confidential communications between physician and patient apply only to civil cases and not criminal ones.
He asked the court to recall Ortiz to the witness stand so he could be subjected to another cross-examination without the cloak of privileged communication.
"To rule otherwise would impair the constitutional and procedural right of the accused to confront the witness against him," the defense lawyer argued.
Pozon then directed the prosecution to submit its comment within five days before he will rule on the motion.
In Friday's proceedings, the defense sought to discredit the qualifications of Fortun to appear as an expert witness, saying her expertise in the area of sexual assault cases is nil, as she has only taken 20 cases in her 11 years as a forensic pathologist.
They likewise asked her why she did not use the term "rape" in the cases that she studied and instead used "sexual assault."
"Sir, we use sexual assault instead of rape since rape has a legal meaning while assault simply refers to violence," the witness answered.
At one point the argument harked back to the controversial death of Ensign Philip Pestaño who was found dead in the bunk of the BRP Bacolod City, a transport ship of the Philippine Navy on December 1995. The case resulted in a Senate investigation.
"Would you agree with me that your findings in that particular case is different from the findings a Senate panel which conducted an investigation in aid of legislation?" asked Justiniano. Fortun replied: "Yes it was but I just rendered my opinion based on the facts presented to me."
Fortun disclosed that defense counsel Benjamin Formoso, counsel for accused Lance Corporal Daniel Smith, asked her on April 5 if she could help them by rendering her services. Fortun told the court she refused since the prosecution had already asked her services a month before.
She likewise said another defense lawyer, Francisco Rodrigo, counsel of accused Staff Sergeant Chad Carpentier, "indirectly" approached her through his father, retired lawyer Benjamin Del Rosario, a month ago. Rodrigo objected to the disclosure, saying that it might constitute a breach of ethics.
The prosecution said this is enough proof that the defense acknowledges her expertise.
"Why in the first place did they have to ask for her services," Ursua said.
The hearing will continue on Monday with the continuation of the testimony of Annaliza Franco, the victim's stepsister, while the court is set to rule on whether to admit Fortun as an expert witness. (AH/Sunnex)
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