In the Philippine legal system, an Affidavit of Desistance is a sworn statement executed by a complainant (the offended party) stating that they are no longer interested in pursuing a criminal case against the accused.
While often perceived as a "magic eraser" for legal troubles, its effects are nuanced and governed by specific Rules of Court and jurisprudence.
Nature and Purpose
An Affidavit of Desistance is essentially a formal withdrawal of a complaint. The affiant usually declares that:
- The incident arose from a misunderstanding.
- The parties have reached an amicable settlement.
- They are no longer willing to testify or provide evidence.
- They are "desisting" from the prosecution of the case.
Legal Effect: Does it Dismiss the Case?
It is a common misconception that filing this affidavit automatically results in the dismissal of a criminal case. Under Philippine law:
- Public Crimes: In crimes against the State (e.g., Murder, Robbery, Estafa), the real party in interest is the "People of the Philippines." The complainant is merely a witness. Therefore, the prosecution can technically proceed even if the complainant backs out, provided there is other independent evidence.
- Private Crimes: In crimes like Adultery, Concubinage, Seduction, or Defamation, the pardon or desistance of the offended party has a more direct impact and can lead to dismissal.
- Discretion of the Court: Courts generally view Affidavits of Desistance with suspicion, especially when filed late in the trial. Judges often consider them "afterthoughts" or products of coercion/monetary settlements. However, if the prosecution's case relies solely on the testimony of the desisting witness, the case is usually dismissed for lack of evidence.
Essential Elements of the Document
To be legally valid and persuasive to a prosecutor or judge, the affidavit should contain the following:
- Title: "Affidavit of Desistance."
- Commencement: Name, age, civil status, and address of the affiant.
- Case Details: The title of the case (e.g., People vs. Juan Dela Cruz), the docket number (IS Number or Criminal Case Number), and the specific charge.
- The Narrative of Desistance: A clear statement that the affiant is no longer interested in testifying. It is helpful to state that the incident was a "misunderstanding" or that the parties have settled the civil aspect of the case.
- Voluntariness Clause: A statement that the affidavit is executed freely and voluntarily, without force or intimidation.
- Signature: The affiant must sign the document.
- Jurat: The document must be notarized or subscribed and sworn to before a prosecutor. Without a notary/prosecutor's seal, it has no legal weight.
The Process of Filing
| Step | Action | Description |
|---|---|---|
| 1 | Drafting | Prepare the document or have a lawyer draft it to ensure the language doesn't inadvertently incriminate the affiant. |
| 2 | Execution | The complainant signs the document in the presence of a Notary Public or the handling Prosecutor. |
| 3 | Submission | The affidavit is filed with the Office of the City Prosecutor (if the case is in the investigation stage) or with the Trial Court (if the case has already been filed). |
| 4 | Motion to Dismiss | Usually, the defense counsel will file a "Motion to Dismiss" or "Motion to Quash" based on the Affidavit of Desistance. |
Limitations and Risks
- State Prosecution: If the Prosecutor believes they can prove the case using forensic evidence or other witnesses, they may object to the dismissal.
- Perjury Risks: If a complainant previously gave a sworn statement (Affidavit of Complaint) and now executes an Affidavit of Desistance saying the first one was false, they could theoretically face charges for Perjury or False Testimony.
- Timing: Desistance is most effective during the "Preliminary Investigation" stage. Once the case is in court, it becomes much harder to terminate.
Note: An Affidavit of Desistance only waives the criminal liability as far as the complainant's cooperation is concerned. It does not automatically extinguish the civil liability (damages) unless specifically stated in a separate "Release, Waiver, and Quitclaim."