Section 18. Discharge of accused operates as acquittal
REQUISITES TO BE A STATE WITNESS:
1. Two or more persons are jointly charged with the commission of an
2. The application for discharge is filed by the prosecution before
it rests its case
3. Absolute necessity for the testimony of the accused
“Absolute necessity” means that he alone has knowledge of
the crime, and not when his testimony would simply
corroborate or otherwise strengthen the evidence in the
hands of the prosecutor.
4. There is no other direct evidence available for the proper
prosecution of the offense.
5. Testimony of the accused can be substantially corroborated in its
6. Accused does not appear to be the most guilty
Means that he does not appear to have the highest degree of
culpability in terms of participation in the commission of
the offense and not necessarily in the severity of the penalty
The fact that there was conspiracy does not preclude one from
being discharged as a state witness. What the court takes into
account is the gravity or nature of acts committed by the
accused to be discharged compared to those of his co-accused,
and not merely the fact that in law the same or equal penalty
is imposable on all of them.
7. Accused has not been convicted of any offense involving moral turpitude.
TWO TYPES OF IMMUNITY:
a. TRANSACTIONAL IMMUNITY – witness can no longer be prosecuted for
any offense whatsoever arising out of the act or transaction.
b. USE-AND-DERIVATIVE-USE-IMMUNITY – witness is only assured that
his or her particular testimony and evidence derived from it will
not be used against him or her in a subsequent prosecution.
The application for discharge of the state witness must be made upon
motion of the prosecution BEFORE resting its case.
The defense should be afforded opportunity to oppose the motion to
discharge an accused to be a state witness.
Any question against the order of the court to discharge an accused
to be used as state witness must be raised in the trial court; it
cannot be considered on appeal. Where there is, however, a showing of
grave abuse of discretion, the order of the trial court may be
challenged in a petition for certiorari and prohibition.
A discharge under the original information is just as binding upon
the subsequent amended information, since the amended information is
just a continuation of the original.
The subsequent amendment of the information does not affect the
discharge of an accused as a state witness because the amended
information is not anew information but is a continuation of the
- A co-conspirator may testify against the other co-conspirator
even if not done clandestinely PROVIDED it must be received by
court with caution and must be substantially corroborated in
its material points.
The EXCEPTION to this rule is even if uncorroborated but the
testimony was given in a straightforward manner and it contains
details which could not have been the result of deliberate
It is not necessary that there be a hearing of the motion to
discharge as long as the court is able to receive evidence for and
against the discharge of an accused to become a witness. (People v Sunga)
- The discharge of an accused to be a state witness amounts to
an acquittal and is a bar to future prosecution for the same
Where an accused has been discharged to be utilized as state
witness and he thus testified, the fact that the discharge was
erroneous as the conditions for discharge were not complied with
did not thereby nullify his being precluded from re-inclusion
in the information or from being charged anew for the same
offense or for an attempt or frustration thereof, or for crimes
necessarily included in or necessarily including those offense.
a. If accused fails or refuses to testify against the co-accused;
b. If he was granted immunity and fails to keep his part of the
agreement, his confession of his participation in the
commission of the offense is admissible in evidence against him.