COMMITTEE ON.THE REVISION OFTHE RULES OF COURT

Chairperson

CHIEF JUSTICE REYNATO S. PUNo

Co-Chairperson

JUSTICE MA. ALICIA AUSTRIA-MARTINEZ 3L\epubHcof tbe ~bilippines~upreme QCourt

fflanilaMembers

SENIOR JUSTICE LEONARDOA. QUISUMBINGJUSTICE ADOLFO S. AzCUNA

JUSTICE DANTE O. TINGA

JUSTICE MINITA V. CHICO-NAZARIO

JUSTICE ANTONIOEDUARDOB. NACHURA A.M. No. 06-11-5-SC

Consultants

JUSTICE JOSE Y. FERIA (RET.)

SENIOR JUSTICE FLERIDA RUTH P. ROMERO (RET.)

SENIOR JUSTICE JOSUE N. BELLOSILLO(RET.)

JUSTICE JOSE C. VrroG (RET.)

JUSTICE BERNARDOP. PARDO (RET.)

JUSTICE ROMEO J. CALLEJO, SR. (RET.)

CA JUSTICE OSCAR M. HERRERA (RET.)

RULE ON DNA EVIDENCE,

EFFECTIVEOCTOBER 15, 2007

Assisted by

ATTY. FELIPEENRIQUEM. GOZON,JR.ATTY. Tu}:OBENJERDANC. OROSA

SecretaryATTY. DOUGLASF. ANAMA

MANILA, PHILIPPINESOCTOBER 2007

Asst. Secretary

Ms. LIDA A. PILAPIL

. ,

3l\epublitof tbe ~bilippines .

~upreme QCourt:ilManila

EN BANe

A.M. No. 06-11-5-SC

RULE ON DNA EV):DENCE

RESOLUTION

Acting on the recommendation of the Chairperson and Membersof the Subcommittee on Eviq.ence submitting for this Court'sconsideration and approval the p~oposed Rule on DNA Evidence, theCourt Resolvedto APPROVE the same. '.

This Resolution .shall take effect on October 15, 2007 followingits publication in a newspaper of general circulation.

October 2, 2007.

'J

~rz,f\eREYNATO'S. PUNO

Chief. Justice

~ .LEONARDO A,Q~BING

Associate Justice

~~ .~CONSu!;:;;::RES-SANTIl:O

Associate Justice

)a?:r/'~ §. ~~AN~LINASANDOVAL.GUTIF)RREZ

Associate Justice

c::::zz:u ,ANTONIO{~

Associate Justice

SUB-COMMITTEE ONRULE ON DNA EVIDENCE

A. ALICIAA USTRIA-MAAssociate Justice

CONCHITA CARPIO MORALESAssociate Justice

CANCIO C. GARCIAAssociate Justice

o EDUARDO B. NACHURAAssociate Justice

... .Chairperson: Justice Romeo J. Callejo, Sr. (ret.)

Vice-Chairperson: Hon. RegaladoE. MaambongRENATO C. CORONA

Associate Justice Hon. Lucas P. BersaminHon. DiosdadoM. PeraltaHon. Raul B. Villanueva

Hon. AloysiusC. Alday(ret.)Atty. RogelioA. VinluanAtty. Francisco Ed. LimAtty. Jose C. Sison

Members:

i,~. U,I~~j'J MINITAV.CHICO-NAZARIO

Associate Justice

Consultants: JusticeBernardo P. Pardo (ret.)Justice Oscar M. Herrera, Sr. (ret.)

ResourcePerson:' Atty. Patricia-AnnT. Prodigalidad

Secretary: Atty. Zharone Fritz Japson-FerrerasPRESBITE,O J. VELASCO,JR.

sociate JusticeAsst. Secretary: Lida A. Pilapil-

I -

RUBEN T. REYESAssociate Justice

RULE ON DNA EVIDENCE

Table of Contents

SECTION.1. Scope.- This Rule shall apply whenever DNAevidence, as definedin Section3 hereof, is offered, used, or proposedto be offered or used as evidence in all criminal and civil actions as

well as special proceedings. .

SEC.2. Applicationof other Rules on Evidence.- In all mattersnot specificallycovered by this Rule, the Rules of Court and otherpertinent provisionsof law on evidence shall apply.

SEC.3. Definitionof Tenns.- For purposes of this Rule, thefollowing terms shall be defined as follows:

(a) "Biological sample" means any organic materialoriginating from a person's body, even if found ininanimateobjects, that is susceptibleto DNA testing.This includes blood, saliva and other body fluids,tissues, hairs and bones;

(b) "DNA" means deoxyribonucleic acid, which is thechain of molecules found in every nucleated cell ofthebody. Thetotalityof an individual'sDNAisuniquefor the individual, except identical twins;

(c) "DNA evidence" constitutes the totality of the DNAprofiles, resultsand other genetic informationdirectlygenerated from DNA testing of biological samples;

(d) "DNA profile" means genetic information derivedfrom DNA testing of a biological sample obtainedfrom a person, which biological sample is clearlyidentifiableas originating from that person;

(e) "DNA testing"means verified and credible scientificmethodswhich include the extraction of DNA from

biologicalsamples, the generation of DNA profilesand the comparisonof the informationobtained from

Rule 5

Rationale. .. .. . . .. . . . . . . . . . . . . . . . .. . . . . . . . . ., . . . . .. . . . . . . . . . . . . . . . . . .. . . . . . . . .. 11

5

the DNA testing of biological samples for the purposeof determining, with reasonable certainty, whether ornot the DNA obtained from two or more distinct

biological samples originates from the same person(direct identification) or if the biological samplesoriginate from related persons (kinship analysis); and

(f) "Probability of Parentage" means the numericalestimate for the likelihood of parentage of a putativeparent compared with the probability of a randommatch of two unrelated individuals in a givenpopulation.

SEC.4. Application for DNA Testing Order.- The appropriatecourt may, at any time, either motu proprio or on application of anyperson who has a legal interest in the matter hi litigation, order aDNA testing. Such order shall issue after due hearing and notice tothe parties upon a showing of the following:

(a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was notpreviously subjectedto the type of DNA testing now requested; or (ii) waspreviously subjected to DNA testing, but the resultsmay require confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientificpotential to producenewinformationthat is relevant to the proper resolutionof the case; and

(e) The existence of other factors, if any, which the courtmay consider as potentially affecting the accuracy orintegrity of the DNA testing.

This Rule shall not preclu~e a DNA testing, without need of aprior court order, at the behest of any party, including lawenforcementagencies, before a suit or proceeding is commenced.

SEC. 5. DNA Testing Order.- If the court finds that therequirements in Section 4 hereof have been complied with, the courtshall :

(a) Order, where appropriate, that biological samples betaken from any person or crime scene evidence;

(b) Imposereasonableconditionson DNA testingdesignedto protect the integrity of the biological sample, thetesting process and the reliability of the test results,includingthe condition that the DNA test results shallbe simultaneouslydisclosed to parties involved in thecase; and

(c) If the biological sample taken is of such an al,TIountthat prevents the conduct of confirmatory testing bythe other or the adverse party and where additionalbiologicalsamples of the same kind can no longer beobtained, issue an order requiring all parties to thecase or proceedings to wimess the DNA testing to beconducted.

An ordergrantingthe DNA testing shallbe immediatelyexecutoryand shall not be appealable. Any petition for certiorari initiatedtherefrom shall not, in any way, stay the implementation thereof,unless a higher court issues an injunctive order. The grant of a DNAtesting application shall not be construed as an automatic admissioninto evidence of any component of the DNA evidence that may beobtained as a result thereof.

SEc.6. Post-conviction DNA Testing.- Post-conviction DNAtesting may be available, without need of prior court order, to theprosecution or any person convicted by final and executory judgmentprovided that (a)a biologicalsample exists, (b) such sample is relevantto the case, and (c) the testing would probably result in the reversalor modificationof the judgment of conviction.

SEC.7. Assessment of probative value of DNA evidence.- Inassessing the probative value of the DNA evidence presented, thecourt shall consider the following:

(a) The chain of custody, including how the biologicalsamples were collected, how they were handled, andthe possibility of contamination of the samples;

(b) TheDNA testingmethodology, includingtheprocedurefollowedin analyzing the samples, the advantages and

disadvantages of the procedure, and compliance with~e scientificallyvalid standards in conducting the tests;

(c) The forensic DNA laboratory, including accreditationby any reputable standards-setting institution and thequalification 'of the analyst who conducted the tests.If the laboratory is not accredited, the relevantexperience of the laboratory in forensic casework andcredibility shall be properly established; and

(d) The reliability of the testing result, as hereinafterprovided.

The provisions of the Rules of Court concerning the appreciationof evidence shall apply suppletorily.

SEC. 8. Reliability of DNA Testing Methodology.- In evaluatingwhether the DNA testing methodology is reliable, the court shallconsider the following:

(a) The falsifiability of the principles or methods used,that is, whether the theory or technique can be and hasbeen tested;

(b) The subjection to peer review and publication of theprinciples or methods;

(c) The general acceptance of the principles or methodsby the relevant scientific community;

(d) The existence and maintenance of standards andcontrols to ensure the correctness of data generated;

(e) The existence of an appropriate reference populationdatabase; and

(f) The general degree of confidence attributed tomathematical calculations used in comparing DNAprofiles and the significance and limitationof statisticalcalculations used in comparing DNA profiles.

, SEC. 9. Evaluation of DNA Testing Results.- In evaluating theresults of DNA testing, the court shall consider the following:

(a) The evaluation of the weight of matching DNAevidence or the relevance of mismatching DNAevidence;

A.lVI. NO. Ub-U-:H~C

-t+

(b) The results of the DNA testing in the light of the, totality of the other eyidence presented in the case;and that

(c) DNA results that exclude the putative parent frompaternity shall be conclusive proof of non-paternity.If the value of th~ Probability of Paternity is less than99.9%, the results of the DNA testing shall beconsidered as corroborative evidence. If the value of

the Probability of Paternity is 99.9% or higher? thereshall be a disputable presumption of paternity.,

SEC. 10. Post-conviction DNA Testing. Remedy if the Resultsare Favorable to the Convict.- The convict or the prosecution mayfile a petition for a writ of habeas corpus in the court of origin if theresults of the post-conviction DNA testing are favorable to the convict.In case the court, after due hearing, finds the petition to be meritorious,it shall reverse or modify the judgment of conviction and order therelease of the convict, unless continued detention is justified for alawful cause.

A similar petition may be filed either in the Court of Appeals orthe Supreme Court, or with any member of said courts, which mayconduct a hearing thereon or remand the petition to the court of originand issue the appropriate orders.

SEC. II. Confidentiality.- DNA profiles and all results or otherinformation obtained from DNA testing shall be confidential. Exceptupon order of the court, a DNA profile and all results or otherinformation obtained from DNA testing shall only be released to anyof the following, under such terms and conditions as may be set forthby the court:

(a) Person from whom the sample was taken;

(b). Lawyers representing parties in the case or actionwhere the DNA evidence is offered and presented orsought to be offered and presented;

(c) Lawyers of private complainants in a criminal action;

(d) Duly authorized law enforcement agencies; and

(e) Other persons as determined by the court.

10 Rule on DNA Evidence

Whoever discloses, utilizes or publishes in any form anyinformation concerning a DNA profile without the proper court ordershall be liable for indirect contempt of the court"wherein such DNAevidence was offered, presented or sought to be offered and presented.

Where the person from whom the biological sample was takenfiles a written verified request to the court that allowed the DNAtesting for the disclosure of the DNA profile of the person and allresults or other information obtained from the DNA testing, the samemay be disclosed to the persons named in the written verified request.

SEC. 12. Preservation of DNA Evidence.- The trial court shallpreserve the DNA evidence in its totality, including all biologicalsamples, DNA profiles and results or other genetic informationobtained from DNA testing. For this purpose, the court may order theappropriate government agency to preserve the DNA evidence asfollows:

(a) In criminal cases:

i. for not less than the period of time that anyperson is under trial for an offense; or,

ii. in case the accused is serving sentence, untilsuch time as the accused has served hissentence;

RATIONALEOF THE RULE ON DNA EVIDENCE

(a) A court order to that effect has been secured; or(b) The person from whom the DNA sample was obtained

has consented in writing to the disposal of the DNAevidence.

SEC. 13. Applicability to Pending Cases.- Except as providedin Sections 6 and 10 hereof, this Rule shall apply to cases pending atthe time of its effectivity.

SEC. 14. Effectivity.- This Rule shall take effect on October 15,2007. followinl! Dublication in a ne\vspaper of general circulation.

I

(

The first time the Supreme Court acknowledged the admissibilityof DNA evidence was in People of the Philippines v. Gerrico Vallejoy Samartinoalias Puke1("Vallejo"). Aside from formally and finallyrecognizingDNA evidence injurisprudence, the High Court in.Vallejolikewise laid down the standards to be considered in assessing itsprobative value. While acknowledging that DNA forensic analysis,ifproperly utilized by the Bench and Bar, can contribute significantly inhelping to resolve many disputes and assist the courts in the deliveryof justice, the Supreme Court is likewise aware that the indiscriminateand wholesale acceptance of DNA evidence, which is inherentlyinfluential and compelling, can r~sult in even grav.er injustice.

As gatekeepers of evidence2 and, more importantly, as fact-finders and initial decision-makers in the Philippine legal system, trialjudges are taskedwith ascertainingthe admissibilityof expert evidence,including testimony on DNA test results and, thereafter,' assessingtheir credibility. In performing these tasks, trial judges should notonly be aware of the underlying technology of DN~ evidence and itsreal significance but, more importantly, should be given prescribedparameters on the requisite elements for reliability and validity (Le.,the proper procedures, protocols, necessary laboratory reports, etc.),the possible sources of error, the available objections to the admissionof DNA test results as evidence as well as the probative value ofDNA evidence.

On the part of the members of the Bar, their primary task is toprotect the interests and welfare of their clients within the' bounds ofthe law. To successfully perform this task, it is essential that the

+

and

(b) In all other cases, until such time as the decision inthe case where the DNA evidence was introduced has

become final and executory.

The court may allow the physical destructionof a biologicalsample before the expiratioJ1of the periodsset forthabove,providedthat:

I G.R. No. 144656,May 9, 2002.2 RULESOFCOURT,Rule 132, Sec. 38 provides that courts are tasked to rule

on the::admissibility of proffered evidence.

II

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12 Rule on DNA Evidence A.M. No. 06-11-S-SC 13

members of the legal profession are well-informed of the processesand procedures relative to the introduction and presentation of DNAevidence and, more importantly, are given proper grounds for objectingto, andlor assailing the credibility of,' DNA evidence, a piece ofevidence that is commonly mistaken as infallible. Indeed, it is onlywhen the party litigants and their counsel are well-informed and.sufficiently armed with statutory guidance that the adversarial systemmay weed out "junk science." from the evidence on record.

. ... The Rule on DNAEvidenceis intendedto be the guide to boththe Bench imd the Bar for the introduction and use of DNA evidence

iri the judicial system. Being a relatively new technology, guidanceis necessary to ensure that the evidence gathered using various methodsof DNA analysis is utilized effectively and properly, shall not bemisused andlor abused and, more importantly, shall continue to ensurethat DNA analysis serves justice and protects, rather than prejudices,the public." .

the use of DNA evidence in crime scene investigations as well aspaternity testing in all areas of the globe - the United States, mostcountries in Europe, in Asia, and now after more than 20 years sinceits discovery - in the Philippin.es. ' .

LEGAL HISTORY OF DNA EVIDENCE IN THEPHILIPPINES

HISTORY OF DNA PROFILING

Sometime in the second quarter of 2003, the Supreme Court,through its Second Division, cQmplainedthat it only had "uncertaintestimonies to rely on" in reviewing the conviction of the accused forrobbery with rape and exclaimed its wish that ithad "DNA or otherscientificevidence...to still [its] doubts!"3

A move towards a more "scientific" approach -, a reliance on"scientific evidence," particularly DNA profiling - in criminalprosecutionshas been instigated, perhapsnot surprisingly, by membersof the forensic science community. Inspired by the advances in DNAtechnology in other nations and hoping that the Philippine criminaljustice systemwould finally abreast wi~ more developed countries interms of forensic science, defenders of convicted sexual offenders inthe Philippinessought to secure post-convictionDNA testing. Initially,the DNA movement met some resistance. In 2002, DNA evidencewas finally recognized as a formal part of Philippine criminaljurisprudence in the rape case, Vallejo. Finally, the era of DNAevidence has seen its dawn in the Philippines.

Vallejo is' the first (published) case in which a Philippine trialcourt actually relied upon DNA' evidence as one circumstantialevidence to convict the accused of rape and sentence him to death. Onappeal, the accused raised several errors in his conviction only oneof which pertained to the use of the DNA evidence - that the"prosecution failed to show that all the samples submitted for DNAtesting were not contaminated, considering that these specimenswerealreadysoakedin smirchy(sic) watersbeforetheywere submittedtothe laboratory."4 In rejecting the accused's argument regarding the

More than fifty years ago, in 1953, DNA - the so-caUed buildingblockor geneticblueprintof life- was first characterized by scientistsF:rancis H.C.. ,Cr.ickand James D. Watson as the material that makes.:upthe .genetic code of all organisms,'without exception. In doing so,Crick and Watson were ~ompletely unawal,"eof the potential impacttheir ~iscovery woul~,have on forensic science in particular and the

.criminal justice ,systemas a whole. Resting on the established natural

. truth that ,no two individuals have the same DNA blueprint, with the

.~xceptionof identicaitwins, DNA typingor "profiling," as it is now. called, was conceived..~ . I . I.

DNA "fingerprinting," as it was then called, was first proposed_ in 1984by an Englishgeneticist,AlecJ. Jeffreys,and thereafter

, .,direc'tly used in a rape and murder case to exonerate an innocent..suspect and to convict the guilty accused. One year later, thepolymerase chain reaction (PCR) in DNA analysis was discovered.This discovery revolutionalized the field of molecular biology andpushed forensic science to advance in leaps and bounds. Since then,human identity testing using various DNA typing methods has becomewidespread. The past two decades have seen tremendous growth in

/ 3 Peopleof the Philippines v. Joel Jansonand Ricky Pinantoaalias "OGCO,"G.R. No. 125938,April 4, 2003. .

4 People of the Philippines v. Gerrico Vallejoy Samartfno alias Puke, G.R.No. 1446~6. May 9, 2002.

14 Rule on DNA Evidence A.M. No. 06-11-5-SC 15

DNA examination and admitting the DNA evidence, the SupremeCourt held:

"DNA is an organic substance found in a person'scells which contains his or her genetic code. Except foridentical twins, each person's DNA profile is distinct andunique.

When a crime is committed, material is collectedfrom the sceneof the crime or from the victim's bodyforthe suspect's DNA. This is the evidence sample. Theevidence sample is then matched with the reference sampletaken from the suspect and the victim.

The purpose of DNA testing is to ascertain whetheran association exists between the evidence sample and thereference sample. The samples collected are subjected tovarious chemical processes to establish their profile. Thetest may yield three possible results:

1) The samples are different and therefore must haveoriginated from different sources (exclusion). Thisconclusion is absolute and requires no further analysis ordiscussion;

2) It is not possible to be sure, based on the results ofthe test, whether the samples have similar DNA types(inconclusive). This might occur for a variety of reasonsincluding degradation, contamination, or failure of someaspect of the protocol. Various parts of the analysis mightthen be repeated with the same or a different sample, toobtain a more conclusive result; or

3) The samples are similar, and could have originatedfrom the same source (inclusion). In such a case, the samplesare found to be similar, the analyst proceeds to determinethe statistical significance of the similarity.

In assessing the probative value of DNA evidence,therefore, courts should consider, among others things, thefollowing data: how the samples were collected, how theywere handled, the possibility of contamination of thesamples, the procedure fallowed in analyzing the samples,

whether the proper standards and procedures were followedin conducting the tests, and the qualification of the analystwho conducted the tests."

In 2004, following the footsteps of Vallejo, the SupremeCourt,in People of the Philippines v. Joel Yatal.5("Yatar") declared, in nouncertain terms, that "[f]or purposes of criminal investigation,DNAidentification is a fertile source of both inculpatory and exculpatoryevidence." In the same breath, however, the High Court explained,"We are just beginning to integrate lhese advances in science andtechnology in the Philippine criminal justice system, so we must becautious as we traverse these relatively uncharted waters." Applyingthe persuasive jurisprudence from the American jurisdiction, theSupreme Court in Yatarruled that the "DNA evidenceobtainedthroughPCR testing and utilizing STR analysis ... is relevant and reliablesince.it is reasonablybased on scientifically valid principlesof humangenetics and molecular biology" and, consequently, under Philippinelaw, admissible as corroborative evidence.

DNA evidence and the resulting DNA identificationhave alsofound use in paternity and filiation cases decided by the High Court,namely, Arnel L. Agustin v. Court of Appeals, et al.6 and RosendoHerrera v. Rosendo Alba7 ("Herrera"), both decided in the wake ofVallejo and Yatar. Significantly, it is in these cases where theadmissibilityof DNA evidence, as distinguished from probativevalue,has been specificailyraised. In Herrera, the parties extensivelydebatedthe applicabilityof two distinct, if not disparate,US casedoctrinesrelative to the admissibility of DNA evidence. In resolving theconflicting legal positions advanced, the Supreme Court decreed:

"We nowdetermine the applicabilityin thisjurisdictionof these American cases. Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard iscontrolling in the Philippines. At best, Americanjurisprudence merely has a persuasive effect on ourdecisions. Here, evidence is admissible when it is relevantto the fact in issue and is not otherwise excluded by statute

G.R. No. 150224, May 19, 2004.(, G.R. No. 162571. June 15, 2005.

G.R. No. 1482:!0. June 15. 2005.

16 Rule on DNA Evidence A.M. No. 06-11-5-SC

SALIENT FEATURES OF THE RULE ON DNA EVIDENCE

17

or the Rules of Court. Evidence is relevant when it hassuch a relation to the fact in issue as to induce belief in itsexistence or non-existence. Section 49 of Rule 130, whichgoverns the admissibility of expert testimony, provides asfollows:

Secrlarts J and 2

The opinion of a witness on a matter requiringspecial knowledge, skill, experience or training whichhe is shown to possess may be received in evidence.

This Rule does not pose any legal obstacle.to the admissibilityof DNA analysis as evidence. Indeed, even evidence oncollateral matters is allowed "when it tends in anyreasonable degree to establish the p.robability orimprobability of the fact in issue."

Indeed, it would have been convenient to merely referpetitioner to our decisions in Tijing, VaLLejoand Yatar toillustrate that DNA analysis is admissible as evidence. Inour jurisdiction, the restrictive tests for admissibilityestablished by Frye-Schwartz and Oaubert-Kumho go intothe weight of the evidence."

Accompanying this categorical declaration that DNA evidence isadmissible whenever relevant, however, was the High Court'sreiteration of its previous warning in Yatar: "Despite our relativelyliberal rules on admissibility, trial courts should be cautious in givingcredence to DNA analysis as evidence."

On November 3, 2006, the Hon. Ameurfina A. Melencio

Herrera, Chancellor of the .Philippine Judicial Academy, transmittedto the Supreme Court the "Rule on Admissibility and Evaluation ofDNA Evidence" for the consideration and approval of the Court. OnNpvember 23, 2006, Chief Justice Reynato S. Puno, who was thenSenior Associate Justice and Chairman of the Supreme CourtCommittee on the Revision of the Rules of Court endorsed the proposedrule to the Sub-Committee on Evidence for study and recommendation.On July 20, 2007, the Sub-Committee submitted to the Supreme Courtthe "Rule on DNA Evidence," which the Sub-Committee revised andsubmitted to the Court on October I, 2007,

The Ruleon DNA Evidence does not adopt a specific rule on the

admissibility of DNA evidence. Accordingly, the general rules ofevidence in the Rules of Court remain applicable in the determinationof the admissibility of DNA evidence. Otherwise stated, for DNAevidence to'be admissible, the only requirement is that it be relevantto the fact in issue and not excluded by law or the Rules of Court.[Rule 128, Sec. 3]

Section 4

+

1. A DNA Testing Order may be issued by a court motuproprio and/or upon application by a party interested in thelitigation, after due hearing.

2. Whenever DNA testing has been previously conducted onthe same biological sample, such an application will not begranted and/or a DNA Testing Order will not be issuedunless the subsequent DNA testing is to confirm resultsalreadyobtained, and such confirmation is sought "for goodreasons." Otherwise stated, confirmatory DNA testing is

not a ~atter of right.

3. DNA testingmay be had at the behestof any party, includinglaw enforcement agencies, before a suit or proceeding iscommenced. Thus, law enforcement agencies, in the courseof their investigations of a crime, may have DNA testingwithout any court order.

Section 5

1. The Ruleon DNA Evidence takes into accountthe possibilitythat the biological sample obtained may be insufficient formore than one DNA testing and provides for a process toafford the protection and due process necessary.

2. A DNA Testing Order is immediately executory and notappealable, Moreover, in the absence of an injunctiveorder

18 Rule on DNA Evidence A.M. No. 06-11-5-SC 19

from a higher court, a DNA Testing Order is not stayed bycertiorari proceedings instituted to nullify it.

Sections JJ and J 2

Section 6DNA evid'ence(including the DNA profile and other information

gathered from DNA testing) is declared confidential.

The court is mandated to preserve the DNA evidence in itstotality, includingall biological samples, DNA profiles, and results orother genetic information obtained from DNA testing. However, tliecourt is not precluded from ordering the appropriate governmentagency to preserve the DNA evidence. The court may also allow thephysicaldestruction of a biologi~al~amplebefore the expiration of theperiods set forth, provided that the two conditionsmentionedin Section12 are complied with.

Post-Conviction DNA Testing is available, without need of priorcourt order, to the prosecution or any person convicted by final andexecutory judgment provided that "(a) a biological sample exists, (b)such sample is relevant to the case, and (c) the testing would probablyresult in the reversal or modification of the judgment of conviction. "

Section 10

If the results of the post-conviction DNA testing are favorableto the convict, the remedy of such convict is to file a petition for a writof habeas corpus in the court of origin. In case the court, after duehearing, finds the petition to be meritorious, it shall reverse or modifythe judgment of conviction and order the release of the convict. Thesection contemplates a situation in which the convict has been convictedof a crime and, on the basis of the post-conviction DNA testing, isfound to be innocent. In this case, thejudgment of convictionis reversedand the convict is released from detention, unless he is serving sentencefor another crime. The section likewise contemplates a situation inwhich the convict has been convicted, alone or with other convicts, ofa complex crime under Article 48 of the Revised Penal Code, suchas forcible abduction with rape; or a special complex crime, such asrobbery with homicide or robbery with rape. If, based on the resultsof the post-conviction DNA testing, the court finds that the convictwas erroneously convicted of rape or homicide, the court may modifythe judgment of convictioI}by acquitting the convict of rape or homicideand maintaining the judgment of conviction for robbery. The courtmay order the continued detention of the convict if he had not yetserved the sentence for robbery.

A similar petition may be filed either in the Court of Appeals orthe Supreme Court, or with any member of said courts, who mayconduct a hearing thereon or remand the petition to the court of originand issue the appropriate orders.

Section J 3

The Rule on DNA Evidence is specifically made applicable tocases that are pending as of the time of its effectivity including casespending appeal. However, the right to apply for post-conviction DNATesting, as provided by Sections 6 and 10, is available to all accused,includingthose convicted by final and executoryjudgments at the timeof the effectivity of this Rule.

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