“Does silence mean consent?”
It is often said that silence may be construed as consent or agreement. The Ancient Romans encapsulated this in the maxim qui tacet consentire videtur, which means “[he] who is silent is understood to consent”. This is similarly applied to diplomacy, where the failure to object or contest a proposal of another is considered an assent or acquiescence to it. This is also known as the Silence Procedure.
In our day-to-day life, we hear people saying that silence means yes and that the failure to react to a negative statement is to agree to it. Some would even say that the failure to explain or comment on an imputation of a crime published in a newspaper, broadcasted on television, or posted and streamed online counts as an admission of guilt.
In the Rules on Evidence, before the silence of a party can be taken as an admission, it must appear that: (a) he heard and understood the statement; (b) he was at liberty to interpose a denial; (c) the statement pertains to matters affecting his rights, and naturally, calls for an answer; (d) the facts were within his knowledge; and (e) the inference drawn from the silence would be material to the issue (Evidence, Francisco citing 31 Corpus Juris Secundum 1062).
It is essential to discuss each of the requisites of this specific rule.
The person heard and understood the statement. It is important that the act or statement was “made in the presence or within the hearing or observation of a party” for him to deny an act or statement. The statement must be in a language known to the party or to which he is familiar with.
Ideally, to satisfy the requirement of hearing or observation, the actor or declarant and the party subject of the act or statement must be physically present in one place. However, perception over telephone conversations or teleconferences may fall within the definition of hearing a declaration.
Will the Rule similarly apply to declarations made in the course of a virtual or online meeting conducted using Zoom, Microsoft Teams, or Google Meet? The answer is in the affirmative. While the participants are not in a physical meeting, the act or declaration of another can be perceived at the moment it is made, and therefore, must be denied if not true.
This is unlike a statement published in a newspaper, released on television, or circulated online since the acts or statements were not made in the presence or within the auditory perception of their subjects. While the latter can always write or call the attention of the publisher, broadcaster, or vlogger to correct a false or flawed act or declaration, the Rule on Admission by Silence does not apply.
However, as for adverse statements in writing, the Rule on Admission by Silence applies if the party was carrying on a mutual correspondence with the declarant. “If there was no such mutual correspondence, the rule is relaxed on the theory that while the party would have immediately reacted by making a denial…, such prompt response can generally not be expected if the party still has to resort to a written reply (G.R. No. 180197, June 23, 2009).”
In the case of Villanueva v. Balaguer, Villanueva argued that by not responding to the demand letter which expressly urged Balaguer and Intercontinental Broadcasting Corporation (IBC) to reply if the statements are untrue, the latter in effect admitted the matters stated therein, pursuant to the Rule on Admission by Silence (G.R. No. 180197, June 23, 2009).
According to the Supreme Court, “[O]ne cannot prove his claim by placing the burden of proof on the other party. Indeed, a man cannot make evidence for himself by writing a letter containing the statements that he wishes to prove. He does not make the letter evidence by sending it to the party against whom he wishes to prove the facts [stated therein] …” (G.R. No. 180197, June 23, 2009).
Therefore, a failure to answer such adverse assertions in the absence of further circumstances making an answer requisite or natural does not constitute an admission. The Supreme Court further declared that an admission by silence cannot be assumed on the part of Balaguer by virtue of his failure to protest or disclaim the attribution to him by the newspapers that he is the source of the articles (G.R. No. 180197, June 23, 2009).
The statement calls for a comment if not true, but only when proper under the circumstances. The act or statement made in one’s presence, if not true, must be objected to or commented on by the party for admission by silence not to apply. However, the comment or reply must be given only when proper under the circumstances.
For instance, if a person is taunted by a group of people, the former is not expected to comment since to do so may expose him or her to physical harm and violence. Similarly, when an employee is verbally abused by an employer, the employee must not disrespect or retaliate against the employer but instead report the incident to the proper government authorities.
The statement is material to the issue, and the facts are within the person’s knowledge. This only means that the statement must be relevant to the dispute or controversy and that the person who heard the statement understood its meaning. Hence, if the statement was made in a language not known to the hearer, then there is no duty to reply or comment.
This is different from the silence of criminal suspects during custodial investigation which cannot be taken as evidence against them. This is clear in the Bill of Rights of the Philippine Constitution, which provides that “[A]ny person under investigation for an offense has the right to remain silent and to have competent and independent counsel preferably of his own choice” (Section 12(1), Article III).
This is to safeguard suspects from being coerced to confess to a crime they did not commit. Coupled with the suspect’s right to legal representation, it is the duty of law enforcement officers to inform the suspects of their rights during custodial investigation (Miranda v. Arizona, 384 U.S. 436 ).
In 1992, the rights of persons arrested, detained or under custodial investigation were made into law through Republic Act 7438. In the said law, the arrestee, detainee, or person investigated shall be informed of their right to remain silent and shall at all times be allowed to confer privately with their counsel.
In court, the accused’s “silence shall not in any manner prejudice him” (Section 1 (d), Rule 115, Rules on Criminal Procedure). However, the judge may not be prevented from drawing or forming a personal conclusion from such silence or refusal to answer.
Like any other right, the suspect’s right to silence during custodial investigation and the accused’s during trial must be respected. It is not a tool to suppress the truth, but a means to ensure that any statement, admission, or confession made by persons deprived of liberty are spontaneous, were made voluntarily, and were not products of coercion.