Affidavit of Desistance: Does It End a Criminal Case?

It is a written, sworn statement by the complainant, or another witness, saying that he or she is no longer interested in the case, or that earlier statements were wrong. When it takes back testimony already given, the decisions call it a retraction or recantation. In Adlawan v. People (2018), the document was titled "Affidavit of Recantation and Desistance."

In Adlawan, the accused had been convicted of frustrated homicide by the trial court, and the conviction was affirmed by the Court of Appeals. The complainant then signed an affidavit of recantation and desistance. The Supreme Court denied the petition and affirmed the conviction. Its reasons, in short:

• Retractions are viewed with disfavor. "Mere retraction by a witness or by complainant of his or her testimony does not necessarily vitiate the original testimony or statement, if credible." Courts generally look with disfavor upon retractions of testimony previously given in court.
• Special circumstances are needed. A retraction can be considered and upheld only where special circumstances, coupled with the retraction, raise doubts about the truth of the original testimony.
• It is only an additional ground. An affidavit of desistance is "merely an additional ground to buttress the accused's defenses, not the sole consideration that can result in acquittal."
• After conviction, it carries little weight. An affidavit of desistance made after conviction "is not reliable, and deserves only scant attention." The Court gave the reason: "affidavits of retraction can easily be secured from witnesses, usually through intimidation or for a monetary consideration."

The Court of Appeals in the same case had said that an affidavit of desistance, by itself, cannot be a ground for the dismissal of the case.

In Firaza v. People (2007), the complainant's affidavit was found to partake of the nature of an affidavit of desistance. The Court said: "As a rule, this Court frowns upon affidavits of desistance or recantation made after conviction of the accused. Such affidavits deserve scant consideration."

The Revised Penal Code lists the ways criminal liability is totally extinguished in Article 89: death of the convict, service of the sentence, amnesty, absolute pardon, prescription of the crime, prescription of the penalty, and the marriage of the offended woman as provided in Article 344. An affidavit of desistance is not on that list.

The two rulings above deal with affidavits made after the trial court had already decided. This page does not explain what happens to an affidavit of desistance filed at the prosecutor's office before a case reaches court, or in crimes that the law says can be prosecuted only on the complaint of the offended party. Those questions depend on the crime and the stage of the case.

An affidavit is a sworn statement. Knowingly making untruthful statements on a material matter in an affidavit required by law can be perjury under Article 183: see perjury in the Philippines. Whether that applies to a given affidavit depends on what it says and on the facts.

These are made-up examples to show how the rules work. They are not advice for any real case.

Rosa testified in court that her neighbor stabbed her. After the neighbor is convicted, she signs an affidavit saying she no longer wants to pursue the case and is not sure who attacked her. Under Adlawan and Firaza, an affidavit made after conviction deserves only scant attention unless special circumstances raise real doubt about her earlier testimony.

Arturo was hurt in a fight, and a case has already been filed in court. Before the trial ends, he and the other man settle and Arturo signs an affidavit of desistance. Under Adlawan, the affidavit is at most an additional ground supporting the defense, not something that by itself results in acquittal. What happens next depends on the crime, the evidence and the stage of the case.

See also the meaning of affidavit of desistance.

Talk to a lawyer if you are a complainant thinking about signing an affidavit of desistance, if someone is asking or pressuring you to sign one, or if you are an accused and an affidavit has been signed in your case. What effect it has depends on the crime, the evidence and when it was signed. If you face threats or pressure, your safety comes first. If you cannot afford a lawyer, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.