The Eloquence of Silence

From my Trial Techniques blog:

Rule 130, sec. 32 of the Rules on Evidence provides that "an act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him." This admission is what is commonly referred to as an "admission by silence"

The reason behind it is quite simple and straightforward. It is based on human experience, as most of the rules on evidence are. The admission is premised on the natural and human instinct to defend oneself from any act or declaration that would be prejudicial to one's interest if made within earshot or in one's presence and when there is an opportunity to do so. If the act or declaration is such that it would have called for an automatic response and no response was made, then the silence is considered an admission of that fact.

A common analogy given is a bad joke that goes: Person A shouts at Person B, "Hey, you stupid jerk!" Person B retorts angrily, "Hey, I'm not stupid." As with most analogies, this one limps, though I think the point is made.

A more precise example, not analogy, perhaps would be Justice Ruben Reyes's initial silence to insinuations and loud hints that his office was behind the leak of the umpromulgated draft decision in the Limkaichong election case pending before the Supreme Court, which has led to a new controversy with certain quarters insisting on bringing in the Chief Justice.

One would think that Justice Reyes would have been so deafening in his protestations of innocence in the face of such serious insinuations. Yet, from all official and unofficial reports, his silence was the only thing that was deafening. It was only much later, ironically only when media started to pick it up, that Justice Reyes was loudly protesting his innocence (conveniently so, he hinted that any liability might have been from his staff; respondeat superior, Mr. Justice?)

Silence is often a good thing because it places many things in perspective. The eloquence of the silence that accompanied the press conference of Atty. Biraogo's announcement of the leaked draft--which naturally would have pointed only to Justice Reyes's Chambers--speaks volumes in this case.

Strategic Dismembering

It is as if someone took a really dull knife and starting hacking away at parts of one's body--not to kill but to maim, perhaps temporarily but hopefully permanently. That is how I feel when I read and hear the news stories about the way that institutions in this country are being dismembered.

The kennel (este the House of Representatives) came first. The coup d'etat that replaced Jose De Venecia Jr. with Prospero Nograles. Then the Court of Appeals with the Sabio-Roxas-Villarama scandal involving Meralco and GSIS; this resulted in the suspension of Sabio, the dismissal of Roxas and the lid being blown off what was previously only an open secret within the trade, este the profession of lawyering. Then the Senate coup d'etat, replacing Manny Villar with Juan Ponce Enrile. Then the PDEA and DOJ bribery issue, with Gloria taking the side of PDEA and ordering preventive suspensions for one Undersecretary (looks guilty), the Chief State Prosecutor (looks innocent but clueless), several state prosecutors and once again, the lid being blown off what was previously only an open secret within the trade of lawyering--that if you're resourceful enough, you can get the decision you really want. Now, the Supreme Court, with the threat of impeaching the Chief Justice and the reality that Gloria will get to appoint seven Justices before 2010.

All through it all, the people are too numb to scream in pain as parts of this body, especially parts that insure accountability now and in the future (especially after Gloria leaves Malacanang) are strategically dismembered, discredited or simply disregarded.

The greatest danger now is not that Gloria still remains in power, it is that she might remain in power by proxy even after she leaves Malacanang.

Perspective 3

At the start of a new semester of law school (and for the underbars out there, the first day of work for many), let me give some space to Alan Dershowitz (Felix Frankfurter Professor of Law at Harvard, also a litigator, columnist, lecturer and prolific author; he has been counsel for the accused in many high profile cases in the U.S.) who, in Letters to a Young Lawyer writes this interesting and certainly provocative piece.

Dont' Do What You're Best At
By: Alan Dershowitz

Some of the least happy people I know are those who figure out what they are best at and then tailor the job to their particular expertise. The problem is that what you're best at is not necessarily what gives you the most gratification or what is most important. Our educational system steers students towards courses and areas in which they excel. Grades are, after all, quite important to getting into college and law school. And it's ok to take courses in which you will excel. But courses last only a few months. Life is forever. So pick a career, or an area within your career, that balances excellence and gratification. It should challenge you every day and have you waking up eager to confront the day's challenges. Obviously you don't want to pick something you're not very good at, no matter how much you might enjoy it (for me, that would be basketball) [Ted's Note: It is uncanny that I would have the same notation as regards basketball, which I enjoy greatly but am not skilled at] Pick an area that you're quite good at but that gives you so much joy that you can't wait to get up in the morning and go to work.

Early in my career, when I was less controversial, I was offered law school deanships and university presidencies. I knew enough about myself to turn them down. In one instance, I wrote a "Groucho Marx" reply, saying that I would not want to join a club--or in this case, a school--that would have me as its dean. A dean or president must be able to bring people together. I drive them apart. I am a provocateur, not a pacifier. I would enjoy the prestige of being dean, a president or perhaps a judge, but I would hate the day-to-day aspects of the job.

I know too many people who have taken prestigious jobs--deanships, chairmanships, judgeships, professorships, partnerships--simply because they were flattered to be offered them. Understand the difference between being offered a job and accepting it. It is flattering, even career-enhancing, to be offered a prestigious job, but it is a terrible mistake to accept the job unless it is right for you--at the stage of life you are when it is offered.

Having said that, another word of caution: Don't love your work too much, especially if you're a lawyer. When I was a young lawyer, my elders would talk too about the law being a jealous mistress or loving the law. Don't love the law. It will inevitably disappoint you. Understand that the law is a tool, a mechanism, a construct. It is a false idol like so many others in life. In one respect, there is no such thing as "The Law." What we call the law is a process, a group of people, some ideas, precedents, books. Don't respect the law, unless it merits your respect. The law in Nazi Germany or in apartheid South Africa or in the Jim Crow South did not deserve respect. The Supreme Court's decision in Bush v. Gore should be followed--that's what it means to live under the rule of law. But it should not be respected, any more than the robed cheaters who wrote it should be respected. American law today sometimes deserves respect, other times it deserves condemnation. It must always be obeyed, but it need not be admired. Honesty is more important than respect.

If you don't love the law, what should you love (aside from loved ones)? Love liberty. Love justice. Love the good that law can produce. Aspirations don't disappoint, so long as you realize that the struggle for liberty, justice and anything else worth pursuing never stays won.