Letter to a Lawyer:

Dear Attorney,

I hope this message finds you well. I am seeking your guidance regarding the intricacies of an Affidavit of Desistance in the context of Philippine law. Specifically, I would like to understand what is generally excluded from such an affidavit and whether the execution of this document alone is sufficient to ensure that a criminal case will no longer be pursued by the prosecution.

As someone who is simply a concerned individual trying to grasp the legal framework, I want to clarify any misconceptions I may have. Could you kindly provide a thorough explanation of what this affidavit entails, what it cannot include or accomplish, and the extent to which it can influence the course of a criminal case? Any insights you can share would be greatly appreciated.

Respectfully,
A Concerned Citizen

A Comprehensive Legal Article on Affidavits of Desistance under Philippine Law

Affidavits of desistance are often misunderstood legal instruments within the Philippine justice system. In essence, an Affidavit of Desistance is a sworn written statement from a complainant or victim indicating that they no longer intend to pursue or cooperate in the prosecution of the criminal case they initially instigated or supported. While this document can have a significant practical impact on the progress of a criminal case, it does not automatically extinguish the criminal liability of the accused. It is important to clarify the true function, legal significance, and limitations of this affidavit, including what it cannot do and what it generally does not include. By doing so, we better understand whether the mere execution of this affidavit is enough to halt the entire criminal proceedings, and whether prosecutors and judges rely solely on this instrument in deciding the ultimate disposition of a case.

I. The Nature and Purpose of an Affidavit of Desistance

The primary function of an Affidavit of Desistance is to express, under oath, the complaining party’s intention to withdraw their interest in pursuing the case. Common reasons for executing such affidavits include:

Reconciliation between the victim and the accused;
Settlement or compromise agreements (particularly in private crimes or offenses where amicable settlement is allowed);
Changed perspective or reluctance to undergo the rigors of the criminal justice process;
The complainant’s realization that pursuing charges may not be beneficial or may have been prompted by a misunderstanding.

The existence of an Affidavit of Desistance can be a ground to file a motion to withdraw the complaint or to dismiss the case, but it does not ensure that such a motion will be granted. In the Philippine legal system, crimes are generally considered public wrongs—offenses against the State—and thus, while a victim’s cooperation can be pivotal, the government’s prosecutorial arm is not automatically bound by the victim’s refusal to participate.

II. Exclusions and Limitations: What an Affidavit of Desistance Does Not Cover

A fundamental aspect of understanding Affidavits of Desistance is being aware of what they do not include and what they cannot accomplish. Some exclusions and limitations are as follows:

It Does Not Automatically Exonerate the Accused:
An Affidavit of Desistance does not function as an instrument of absolution. Criminal liability, once sufficiently established by the prosecutorial process, cannot simply be erased by the victim’s change of heart. The courts and prosecutors retain discretion to continue with the case if there is independent evidence of guilt.
It Does Not Bind the Prosecutor or the Court:
The Department of Justice (DOJ) prosecutors and judges exercise independent judgment when evaluating whether a case should proceed. The affidavit serves merely as one piece of evidence reflective of the complainant’s current stance, but it does not command the dismissal of the case. Prosecutors have the duty to represent the interests of the State, and if the evidence collected is strong enough to proceed without the victim’s testimony, they can still move forward.
It Does Not Erase the Public Character of the Offense:
Most crimes in the Philippines are considered offenses against the State. Even if the private complainant decides to desist, the public prosecutor may still consider the overall strength of the case. Unless the crime is one where the absence of the offended party’s continued cooperation fatally weakens the prosecution’s evidence, the proceeding may continue unabated.
It Does Not Apply to Certain Offenses That Are Not “Private” in Nature:
Certain crimes—like murder, serious physical injuries, or crimes that involve the public interest—are considered so serious that even the complete withdrawal of the victim’s support cannot unilaterally halt prosecution. In contrast, some offenses, such as slight physical injuries or oral defamation, might more easily be compromised, but even in these cases, judicial discretion remains.
It Does Not Guarantee Immunity from Related Civil Liability:
Affidavits of Desistance typically address the criminal aspect of a case, not the civil liability that may arise from a wrongful act. Even if a victim desists from pressing charges, the accused might still face civil suits for damages. The waiver of the criminal case does not automatically translate to a waiver of the civil claim unless specifically provided for in a properly executed agreement and approved by the court.
It Does Not Constitute an Admission or Non-Admission of Guilt:
Executing an Affidavit of Desistance is a procedural matter, often done for various reasons that may or may not be related to the truthfulness of the allegations. It does not imply innocence or guilt of the accused. The accused cannot claim vindication solely based on the victim’s act of desistance.

III. Legal Basis and Doctrines Governing Affidavits of Desistance

Philippine jurisprudence has repeatedly emphasized that an Affidavit of Desistance is not a magic wand that can dictate the termination of criminal proceedings. The Supreme Court of the Philippines has consistently held that such affidavits are viewed with suspicion and reservation, primarily because they can be easily executed, sometimes under duress, intimidation, financial inducement, or other improper motivations. Courts analyze the credibility and voluntariness of the affidavit before assigning weight to it.

Key principles supported by case law include:

Public interest in prosecuting crimes: The duty to enforce criminal law rests not solely on the victim’s shoulders but on the State’s prosecutorial authority.
Non-binding character of desistance: Affidavits of Desistance are typically considered “weak” evidence for dismissal if the prosecution already possesses sufficient independent evidence to prove the offense beyond a reasonable doubt.
Judicial discretion in evaluating desistance: Judges determine whether the affidavit was executed freely and whether it affects the integrity of the case. A sworn statement retracting earlier accusations might be less persuasive if the initial complaint was supported by strong forensic or testimonial evidence from other sources.

IV. Practical Considerations and Procedure

When a complainant decides to execute an Affidavit of Desistance, the usual practical steps are:

Preparation of the Affidavit:
The complaining party, often with the assistance of legal counsel, drafts the affidavit stating that they are no longer interested in pursuing the case. The affidavit must be sworn before a notary public, ensuring that it meets the formal requirements of a sworn statement.
Filing and Submission to the Appropriate Office:
The affidavit is then submitted to the prosecutor’s office or to the court where the case is pending. If the case is still under preliminary investigation, the complainant may present it to the prosecutor. If the case is already in court, the affidavit is filed with a motion to dismiss or withdraw the complaint.
Evaluation by the Prosecutor or the Court:
Once submitted, the prosecutor or judge evaluates the affidavit. They consider whether the absence of the complainant’s testimony will render the prosecution’s evidence insufficient. If other evidence is lacking, the State may consider dismissing the case. However, if corroborative evidence exists—such as eyewitness accounts, physical evidence, or official documents—the case may proceed despite the desistance.
Possible Conditions and Agreements:
In some instances, the desistance might be part of a settlement or amicable compromise, particularly in less serious offenses. The prosecutor or the court may consider such settlements and weigh them against the public interest in prosecuting crime. The court still retains the final say, ensuring that no party is forced into an unjust compromise and that the terms do not offend the law or public policy.

V. What Is Often Excluded from an Affidavit of Desistance

An Affidavit of Desistance generally does not include:

A Binding Order to the Prosecutors or Courts:
It is not an order but a request. The complainant cannot compel the authorities to dismiss the case. The affidavit is merely a manifestation of the complainant’s intent, not a directive.
Detailed Exculpatory Evidence for the Accused:
Typically, the affidavit merely states the complainant’s intention to withdraw participation. It usually does not contain exonerating detail or testimonial evidence proving the innocence of the accused. It may sometimes recant earlier statements, but even then, the court evaluates the credibility of both initial accusations and subsequent retractions.
Waiver of State Interests:
The affidavit cannot extinguish the State’s prerogative to prosecute crimes. This exclusion is critical since the government’s mandate is to uphold the rule of law, ensure public safety, and penalize wrongdoing. The victim’s personal decision not to pursue the matter does not eliminate the public dimension of the crime.
Foreclosure of Further Investigation:
Even if the complainant withdraws, the authorities may continue to look into the allegations. The Affidavit of Desistance does not stop the government from gathering additional evidence, interviewing witnesses, or pursuing leads that establish criminal responsibility.

VI. Is an Affidavit of Desistance Enough to Stop the Filing of a Case?

It is crucial to emphasize that the filing and prosecution of criminal cases in the Philippines rest primarily with the government’s prosecutorial arm. The prosecutor’s office decides whether there is probable cause to file an Information in court. Once a case is filed and the court acquires jurisdiction, it is the judge who determines whether the accused is guilty or not, based on the evidence and the law.

If an Affidavit of Desistance is executed before the case reaches the courts—during the preliminary investigation stage—prosecutors may consider it as a factor in determining probable cause. If the evidence solely hinges on the victim’s testimony and the victim now refuses to cooperate, prosecutors may find it difficult to build a strong case, leading to its dismissal. Still, if other independent pieces of evidence remain strong, the prosecutor can ignore the affidavit and recommend filing the charges.

Once the case is in court, the role of the affidavit becomes more limited. The judge may allow withdrawal of the complaint only if it does not prejudice the State’s interest in prosecuting the crime. The affidavit alone is not a controlling factor; the court will look at the totality of evidence and the seriousness of the offense. In non-compoundable offenses—serious crimes where public interest is paramount—the affidavit of desistance will generally have little to no effect on the ultimate outcome.

VII. The Role of Public Policy and Public Interest

Public policy considerations guide prosecutors and judges in dealing with Affidavits of Desistance. The criminal justice system operates to maintain social order, protect the public, and punish transgressors. Allowing complainants to unilaterally dictate the termination of proceedings could undermine the State’s mandate, especially if the initial complaint concerned a grave offense. Thus, while Philippine law acknowledges the importance of the victim’s stance, it likewise safeguards the integrity of the judicial process by preventing easy manipulation or bargaining in serious cases.

VIII. Strategies and Best Practices in Preparing or Responding to an Affidavit of Desistance

From a legal perspective, both complainants and defense counsel must approach the Affidavit of Desistance with prudence:

For Complainants (or Victims):
Before executing an affidavit, they should seek legal advice. They need to understand that once they sign it, the prosecution’s path may or may not end. If their safety or interest prompted the decision, they should clarify their stance without perjuring themselves. They should not sign affidavits under pressure or for payment, as doing so may have legal repercussions.
For Accused and Defense Counsel:
While an Affidavit of Desistance can be helpful, it should not be solely relied upon for an acquittal. Defense counsel must still prepare to challenge the prosecution’s evidence on its merits. If the complainant recants, the defense can argue that the prosecution no longer has a credible witness. However, they must remain vigilant in considering that the case may continue if other evidence exists.
For Prosecutors:
Prosecutors must diligently assess the motivations behind an Affidavit of Desistance and the remaining strength of the evidence. They serve as gatekeepers of justice and must not dismiss a case merely due to victim recantation if strong evidence remains. A balanced approach ensures that public trust in the justice system is maintained.

IX. Conclusion

An Affidavit of Desistance is neither a blanket immunity pass for the accused nor a binding directive to the authorities. Instead, it is a sworn declaration by the victim indicating a change of heart in pursuing legal action. Philippine law, shaped by jurisprudence and guided by the principle that crimes are public wrongs, does not allow private complainants to unilaterally terminate criminal proceedings. Ultimately, the value of an Affidavit of Desistance depends on the totality of the circumstances:

The gravity of the offense;
The stage of the proceedings;
The nature of the evidence; and
The court or prosecutor’s discretionary power.

Affidavits of Desistance generally exclude binding instructions to dismiss the case, do not guarantee immunity for the accused, and do not erase civil liabilities. They are, at most, one factor among many that the justice system weighs when deciding the fate of a criminal case. A well-informed understanding of these limitations and the significance of public interest can help all parties navigate the complexities of Philippine criminal law more effectively.