CRIMINAL PROCEDURE REMEDIAL LAW INSTITUTION OF THE ...mcapordolaw.weebly.com/uploads/1/9/9/7/1997012/up08_crimpro.pdf · elements to determine venue. [Agbayani v. Sayo ] • Two places

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CRIMINAL PROCEDURE REMEDIAL LAW

I. INSTITUTION OF THE

CRIMINAL ACTION

A. IN GENERAL • CRIMINAL ACTION - One by which the State

prosecutes a person for an act/omission punishable by law.

• The test to determine whether proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form [Sec. of Justice v. Lantion (2000)]

ESSENTIAL REQUIREMENTS OF DUE PROCESS 1) There must be a court/tribunal clothed with

judicial authority to hear and determine the matter before it.

2) Jurisdiction must be lawfully acquired over the person of the defendant or property which is the subject of the proceeding.

3) The defendant must be given an opportunity to be heard.

4) Judgment must be rendered upon lawful hearing.

B. WHERE TO INSTITUTE

1. CRIMINAL JURISDICTION • Definition: Authority of the court to hear and

try a particular offense and to impose the punishment provided by law.

• Jurisdiction is vested in the court, not in the judges. [People v. Gorospe]

• Inquiries into a court’s jurisdiction: 1) WON the court has jurisdiction over the

offense by virtue of the imposable penalty and its nature; • It is defined by law; determined by the

extent of the penalty which law imposes based on the facts as recited in the complaint/information constitutive of the offense charged.

2) WON the action has been filed within the territorial jurisdiction of the court. • Refers to venue or the place where the

case is to be tried. The action should be instituted and tried in the municipality or territory where offense has been committed or where any one of the essential ingredients thereof took place.

• General rule: The court’s jurisdiction to try a criminal action is to be determined by the law at the time of the institution of the action. Succeeding legislation placing jurisdiction in another tribunal will not affect jurisdiction obtained by a court. • Exception: Where the succeeding statute

expressly provides, or is construed that it is intended to operate to actions pending before its enactment, in which the case the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal, which will continue the proceeding.

HOW TO DETERMINE JURISDICTION • Determined by the allegations of the complaint

or information. • By examination of the complaint/information to

ascertain that the facts set out and punishment fall under jurisdiction of court. [People v. Ocaya (1978)]

JURISDICTION OVER THE PERSON OF THE ACCUSED • It is acquired either by the arrest of the

accused or by his voluntary appearance in court. • Voluntary appearance is accomplished by

pleading to the merits. • Filing motion to quash (MTQ), unless on the

ground of LOJ of the court over the person of the accused.

• Appearing for arraignment. • Entering trial

ESTOPPEL AND LACHES TO DENY JURISDICTION • General rule: The question of jurisdiction may

be raised at any stage of the proceedings. • Exception: The question may not be raised

for the first time on appeal, where there has been estoppel and laches on the party who raises the question.

2. REGIONAL TRIAL COURT

1) RTCs shall exercise exclusive original

jurisdiction in all criminal cases not within the exclusive jurisdiction of any court/tribunal/body. [Sec. 20, BP 129] • Exception: Those now falling under the

exclusive and concurrent jurisdiction of the Sandiganbayan, which shall hereafter be exclusively taken cognizance of by the latter. [Sec. 20, BP 129]

2) SC may designate certain RTC branches to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and agencies, and/or such other special cases as the SC may determine. [Sec. 23, BP 129]

3) Criminal cases where 1 or more of the accused is below 18 y/o but not less than 9 y/o, or where 1 or more of the victims is a minor at the time of the commission of the offense. [Sec. 5, RA 8369]

3. MUNICIPAL TRIAL COURT 1) Exclusive original jurisdiction over all violations

of city/municipal ordinances committed within their respective territorial jurisdiction. [Sec. 32 BP 129]

2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof. Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction thereof. [Sec. 32, BP 129]



• Exception: Cases falling within the exclusive original jurisdiction of RTCs and of the Sandiganbayan. [Sec. 32, BP 129]

3) Cases classified under the Revised Rules on Summary Proceedings: [SC Resolution, October 15, 1991] a) Violations of traffic laws/rules/regulations; b) Violations of rental law; c) Cases where the penalty prescribed by law

for the offense charged is imprisonment not exceeding 6 months, or a fine not exceeding P1K, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed P10K.

4. KATARUNGANG

PAMBARANGAY • General rule: Parties have no power to enter

into amicable settlement as regards crimes. • Exception: Offenses punishable by

imprisonment < 30 days, or a fine not exceeding P200. [Sec. 2, PD 1508]

• General rule: If parties are residents of the same barangay, then settle through the Lupon of that Barangay. • Exception: [Sec. 3, PD 1508]

1) If residents of the different barangays but in the same city/municipality, then in barangay where respondent or any of the respondents actually resides, at the complainant’s election.

2) All disputes which involve real property (or any interest therein) shall be brought in the barangay where the real property (or any part thereof) is situated.

• The Lupon has no authority over disputes: [Sec. 3, PD 1508] 1) Involving parties who actually reside in

barangays of different cities/municipalities, except where such barangays adjoin each other.

2) Involving real property located in different municipalities.

5. SANDIGANBAYAN • Officials under the exclusive jurisdiction of the

Sandiganbayan: 1) Those expressly enumerated in PD 1606,

as amended by RA 8249; Violations of RA 3019 (Anti-Graft and Corrupt Practices Act), RA 1379 and Chapt. 2, Sec. 2, Title 7, Book 2, RPC.

2) Officials of the executive branch, occupying salary grade 27 and higher.

3) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads.

4) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors engineers and other city department heads.

5) Officials of the diplomatic service occupying the position of consul and higher.

6) Philippine army and air force colonels, naval captains, and all officers of higher rank.

7) Officers of the PNP, while occupying the position of provincial director and those holding the rank of senior superintendent or higher.

8) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutors.

9) Presidents/directors/trustees/managers of GOCCs, state universities or educational institutions/foundations.

10) Members of Congress and officials thereof classified as Grade 27 and up.

11) Members of the judiciary, without prejudice to Constitutional provisions.

12) Chairmen and members of Constitutional Commissions, without prejudice to Constitutional provisions.

• General rule: The offense must be intimately connected with the office of the offender and perpetuated while he was in the performance of official functions. It has also been held to be the case if it cannot exist without the office, or if the office is a constituent element of the crime as defined in the statute • Exception: Election offenses, even if

committed by public officers with grade 27 or higher in relation to their office, shall fall under the RTC’s exclusive original jurisdiction. [Sec. 268, Omnibus Election Code]

6. MILITARY COURTS

• General rule: Ordinary courts will have

jurisdiction over cases involving members of the armed forces, and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units who commits crimes under the RPC or special laws, regardless of who the co-accused or victims are. • Exception: When, as determined by the

ordinary court during arraignment, the offense is service-oriented, then it will be tried by the court martial. Provided: the President may, in the interest of justice, order/direct at any time before arraignment that any such crimes/offenses be tried by the proper civil courts.

7. VENUE • General rule: Institute in the court of the

municipality/territory where the offense was committed or where any of its essential ingredients occurred. [Rule 110, Sec. 15] • Exception:

1) If the offense is committed in a vehicle in the course of its trip, action may be instituted and tried in the court of any municipality/territory where such vehicle passed during its trip, including the place of its departure and arrival.

2) If the offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the 1st port of entry or of any municipality/territory where the vessel passed during such



voyage, subject to the generally accepted principles of international law.

3) If under Art. 2, RPC, then cognizable by the court where the criminal action is 1st filed.

• To determine the correct venue, the vital point is the allegation of the situs of the offense charged in the information.

• Venue is jurisdictional, being an essential element of jurisdiction. The allegation of the place where the offense was committed and where the offended party resided are essential elements to determine venue. [Agbayani v. Sayo]

• Two places may have concurrent jurisdiction if there are two possible venues of the action. But the choice of venue lies with the prosecuting officer and not with the accused. [Catanguib v. CA]

• A person charged with a transitory crime may be validly tried in any municipality/province where the offense was in part committed. In transitory/continuing offenses in which some acts material and essential to the crime and requisite to its consummation occur in one province and some in another, the court of either province has jurisdiction to try the case, it being understood that the first court taking cognizance of the case will exclude the others [People v. Grospe]

C. HOW INSTITUTED COMPLAINT • Definition: A sworn written statement

charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated. [Rule 110, Sec. 3]

• Persons authorized to file the complaint: 1) offended party 2) any peace officer 3) other public officer charged with the

enforcement of the law violated • Criminal cases under the Revised Rules on

Summary Procedure shall be either by complaint or by information; provided that in MM and in chartered cities the criminal action may only be commenced by the filing of information (which means by the prosecutor), except when the offense cannot be prosecuted de oficio.

• The complaint must be under oath. But lack of oath is not a formal defect and will not invalidate a judgment.

INFORMATION • Definition: An accusation in writing, charging

a person with an offense, subscribed by the prosecutor and filed with the court. [Rule 110, Sec. 4]

• It is filed by the prosecutor and need not be under oath. But it must be signed and subscribed by the by the fiscal/prosecutor. • What the prosecutor signs under oath is

certification that he has conducted the required preliminary investigation (PI). Lack of certification does not invalidate judgment. [People v. Bulaong (1981)]

• Information is valid when signed by prosecutor who has authority to conduct PI of the offense committed within his jurisdiction.

• Variance between the complaint filed by the offended party and the information in crimes against chastity, the complaint controls. [People v. Oso]

• The "complaint" referred to in Rule 110 contemplates one filed in court, not with the fiscal. In that case, the proceeding must be started by the aggrieved party himself. For as a general rule, a criminal action is commenced by complaint or information, both of which are filed in court. In case of a complaint, it must be filed by the offended party; with respect to an information, it is the fiscal who files it. But a "complaint" filed with the fiscal prior to a judicial action may be filed by any person. [Ebarle v. Sucaldito]

REQUIREMENTS OF A COMPLAINT OR

INFORMATION [Rule 110, Sec. 6] • Purpose: To inform the accused of the nature

and cause of the accusation against him, which is a constitutional right. The objectives of the right are: 1) to furnish the accused with such a

description of the charge against him as will enable him to make the defense

2) to avail himself of his conviction or acquittal for protection against further prosecution for the same cause;

3) to inform the court of the facts alleged, so that it may decided whether they are sufficient in law to support a conviction, if should be had.

1. NAME OF THE ACCUSED [Rule 110,

Sec. 7] • It must include the name and surname of the

accused, as well as any appellation or nickname by which he has been or is known.

• If the name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. His true name will be inserted if eventually disclosed or appears in some manner to the court.

• If there are more than 1 accused, name all of them. [Rule 110, Sec. 6]

2. DESIGNATION OF THE OFFENSE

[Rule 110, Sec. 8] • Aver the acts and omissions constituting the

offense. Specify the qualifying and aggravating circumstances.

• This is a procedural requirement to safeguard the right of the accused to be informed of the nature and cause of the accusation against him. An information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions thereof.

• In case of conflict between the designation of the crime and the recital of facts constituting the offense, the latter prevails over the former.

• It is essential to avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly. Further, the right becomes more compelling for an accused to be confronted with the facts constituting the



essential elements of the offense charged against him, if he is not to become an easy pawn of oppression and harassment, or of negligent/misguided official action. The sufficiency of an Information is determined solely by the facts alleged therein. [People v. Purisima (1978)]

3. ACTS/OMISSIONS CONSTITUTING

THE OFFENSE [Rule 110, Sec. 9] • It must be in ordinary or concise language,

sufficient to enable a person of common understanding to know what offense is being charged. This must be done both for the offense charged and the circumstances involved in its commission.

• Purpose:

1) To enable a person of common understanding to know what offense is intended to be charged;

2) To enable the court to pronounce proper judgment.

• The accused cannot be found guilty of an offense which has not been alleged.

• The new rule requires that the qualifying and aggravating circumstances be alleged in the information. If the qualifying and aggravating circumstances are not alleged, but proved, the court cannot appreciate the same in imposing the penalty and qualifying the offense, respectively.

• General rule: Where the law alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately, but prescribes certain limitations/exceptions from its violation, the indictment/information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove.

• Exception: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, then the indictment must show that the accused does not fall within the exemptions.

• If the exception is needed for defining the offense, then the information should negative the exception. [US v. Chan Toco (1908)]

• Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can only be convicted of the offense proven.

DUPLICITY OF OFFENSES [Rule 110, Sec. 13] • General rule: The information must charge

only one offense. • Exception: When the law prescribes a

single punishment for various offenses. • Purpose: To give the accused the necessary

knowledge of the charge to enable him to prepare his defense. Hence, when an information charges more than one offense, the accused may file a MTQ on the ground of duplicity of offenses.

4. NAME OF THE OFFENDED PARTY

[Rule 110, Sec. 12] 1) If an offense against person: Name and

surname; nickname/appellation; fictitious name, if real name is unknown.

2) If an offense against property: a) If name is unknown, particularly describe

the property to identify the offense; b) If the name is later known, insert it; c) If a juridical person, name or known name;

without need to aver that it is juridical. • Where the name of the injured party is

necessary as matter of essential description of the crime charged, the complaint must invest such person with individuality by either naming him or alleging that his name is unknown. It is elementary that in crimes against property, ownership must be alleged as matter essential to the proper description of the offense. [US v. Lahoyhoy]

5. DATE OF THE OFFENSE [Rule 110,

Sec. 11] • General rule: The precise date is not

necessary. • Exception: When the date is a material

ingredient of the offense. • As long as the alleged date is not so remote or

far removed from the actual date so as to surprise and prejudice the accused, then the information is valid. The determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his inability to defend himself properly.

• The allegation in the information of “on or about the year 1992” is defective as it violates Rule 110, Sec. 11 and the accused’s right to be informed of the nature and cause of the accusation against him, because the phrase not only includes 12 months of the year 1992 but also years prior and subsequent to 1992.

• Defect in the date is not a ground for MTQ under Rule 116. The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for a bill of particulars under Rule 116, Sec. 6. The accused may also file a MTQ on the ground that allegations are so vague and the time of commission of the offense so remote that he is denied due process and the right to be informed of the accusation against him.

6. PLACE OF COMMISSION OF THE

OFFENSE [Rule 110, Sec. 10] • General rule: It is sufficient if it can be

understood that the offense (or some of its essential ingredients) was committed within jurisdiction of the court. • Exception: If the particular place where it

was committed: 1) Constitutes an essential element of the

offense charged; 2) Is necessary for its identification.



AMENDMENT OR SUBSTITUTION [Rule 110, Sec. 14] AMENDMENT WITHOUT LEAVE OF COURT • General rule: It must be made before the

accused enters his plea. • Exception: If the amendment downgrades

the nature of the offense charged in, or excludes any accused from, the complaint/information, it can be made only upon motion of the prosecutor, with notice to the offended party and with leave of court.

AMENDMENT WITH LEAVE OF COURT • It may be made after plea and during trial; but

it should not cause prejudice to the rights of the accused.

• The test as to WON a defendant is prejudiced by the amendment of an information is – WON a defense under the information as it originally stood would be available after the amendment is made, and WON any evidence defendant might have would be equally applicable to the information in the one form as in the other. [People v. Casey]

SUBSTITUTION • When there is mistake in charging the proper

offense, the court shall dismiss the original complaint/information upon the filing of a new one charging the proper offense, provided accused is not placed in double jeopardy.

D. WHO INSTITUTES NON-RESTRAINT OF CRIMINAL

PROSECUTIONS • General rule: Writs of injunction/prohibition

will not lie to restrain (either through preliminary or final injunction or writ of prohibition) a criminal prosecution. • Rationale: Public interest requires that

criminal acts be immediately investigated and prosecuted for the protection of society.

• Exception: 1) When injunction is justified by

necessity to afford protection to the constitutional rights of the accused;

2) When necessary for the orderly administration for justice or to avoid multiplicity of actions;

3) When there is a prejudicial question which is sub judice;

4) When the acts of the officer are without or in excess of authority;

5) Where the prosecutions is under an invalid law/ordinance/regulation;

6) When double jeopardy is clearly apparent;

7) Where the court has no jurisdiction over the offense;

8) Where it is a case of persecution rather than prosecution;

9) Where the charges are manifestly false and motivated by the lust for vengeance;

10) Where there is clearly no prima facie case against the accused and MTQ on that ground has been denied;

11) Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners.

WHO PROSECUTES • General rule: The action must be prosecuted

under the direction and control of the prosecutor. • The public prosecutor is a quasi-judicial

officer and a representative of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all

• Exception: When there is lack of public prosecutors or heavy workload, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution to prosecute the case subject to the court’s approval. The authority will continue until revoked or withdrawn.

IN APPEALS, THE SOLICITOR GENERAL (OSG) HAS CONTROL • General rule: The OSG shall represent the

People of the Philippines in criminal actions brought to the CA and the SC. • Exception: In all cases elevated to the

Sandiganbayan and from the Sandiganbayan to the SC, the Office of the Ombudsman (through its special prosecutor) shall represent the People, except in cases filed pursuant to EC Nos. 1,2,4, and 14-A issued in 1986.

CRIME WHICH CANNOT BE PROSECUTED

DE OFICIO • Art. 344, RPC states what crimes cannot be

prosecuted de officio. • It includes defamation which consists in the

imputation of a crime which cannot be prosecuted de oficio.

• Note: Rape is no longer a private crime and may thus be prosecuted even without the consent/initiative of the offended party.

• PRIVATE CRIMES – Those which cannot be prosecuted except upon complaint filed by the aggrieved/offended party. They are also crimes against the State and the law imposes the condition that there be a complaint by an aggrieved party out of consideration of the aggrieved party’s preferring to suffer the outrage in silence rather than go through the scandal of public trial.

OFFENDED PARTIES WHO CAN FILE

COMPLAINT 1) In adultery and concubinage – The offended

spouse. Both guilty parties should be included if both are alive.

2) In seduction, abduction and acts of lasciviousness – The victim herself, her parents, grandparents or guardian (in that order). a) If the victim is of legal age and has no

incapacity - The victim alone; parents or grandparents are precluded from filing the complaint.



b) If victim is a minor, or of age but suffers from incapacity – The parents, grandparents or legal guardian, even if the offended party does not wish to file the complaint.

3) In rape – The minor has the right to initiate the complaint independently of parents and guardians, unless incompetent/incapable upon grounds other than minority. If minor initiates the complaint, the father/guardian/grandfather cannot withdraw complaint.

COMPLAINT AS CONDITION PRECEDENT • The complaint starts the prosecutory

proceeding; but it does not vest jurisdiction, as jurisdiction is vested in the court by the law.

• The complaint is only a condition precedent for the exercise by proper authorities of the power to prosecute.

• The failure to raise the issue as to WON there has been a valid complaint filed by the offended party at the trial court is a waiver of the issue.

EFFECT OF DEATH OF OFFENDED PARTY • Once a complaint is filed, the will of the

offended party is ascertained and the action proceeds. Death after filing the complaint would not deprive the court of the jurisdiction to try the case

• The State shall initiate the action on behalf of the offended party, in case of his death/incapacity and he has no known parents/grandparents/guardians.

• In adultery/concubinage, such death does not extinguish the criminal liability of accused.

EFFECT OF DESISTANCE BY OFFENDED

PARTY • It does not bar the People of the Philippines

from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity.

• An affidavit of desistance cannot justify dismissal of the complaint if made after (and not before) the institution of the criminal action.

EFFECT OF PARDON BY OFFENDED PARTY WHO MAY EXTEND THE PARDON • In rape, seduction, abduction and acts of

lasciviousness of a minor – The pardon will be effective if given by both parents and the offended party.

• In seduction, abduction and acts of lasciviousness - Express pardon by the offended party, parents, grandparents or guardian will prevent prosecution. [Rule 110, Sec. 5]

• The parents/grandparents/guardian of the offended minor (in that order) cannot extend a valid pardon without conformity of the offended party, even if the latter is a minor. [US v. Luna]

• If the offended woman is of age and not incapacitated, only she can extend a valid pardon which would absolve the offender.

• General rule: Pardon must be made before the filing of the criminal complaint in court. • If there are more than one accused, the

pardon must be extended to all offenders. • Exception: Marriage between offender and

offended party. • Pardon or express condonation has the effect of

waiving the civil liability with regard to the interest of the injured party. For liability arising from an offense is extinguished in the same manner as other obligations.

E. INTERVENTION OF THE

OFFENDED PARTY [Rule 110, Sec. 16]

• When the civil action is instituted together with

the criminal action according to Rule 111, then the offended part may intervene by counsel in the prosecution of the offense.

• “Party” includes not only the government but other persons as well, such as the complainant who may be affected by the judgment rendered in the criminal proceedings. [People v. Madali (2001)]

WHEN PRIVATE PROSECUTOR IS ALLOWED TO INTERVENE • General rule: An offended party has the right

to intervene in the prosecution of a crime. • Exception:

1) Where, from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party.

2) Where, from the nature of the offense, the private offended party is entitled to civil indemnity arising therefrom but he has waived the same or has expressly reserved his right to institute a separate civil action or he has already instituted such action.

• Any move on the part of the complainant or offended party to dismiss the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal for his own view on the matter. He controls the prosecution of the case and may have reasons why the case should not be dismissed. [Republic v. Sunga]

F. REMEDIES AGAINST

DEFECTIVE COMPLAINT

OR INFORMATION 1) Amendment or substitution; 2) MTQ; [Rule 117, Sec. 4] 3) When defect becomes apparent during trial,

before judgment. [Rule 119, Sec. 19]



II. PROSECUTION OF THE CIVIL

ASPECT CIVIL LIABILITY • General rule: When a criminal action is

instituted, the civil action for the recovery of damages is deemed instituted with the criminal action. [Rule 111, Sec. 1] • Exception: If the offended party:

1) Waives the civil action; 2) Reserves the right to institute it

separately; • Exception:

a) Claims arising out of a dishonored check under BP 22 where “no reservation to file such civil action separately shall be allowed”.

b) Claims arising from an offense which is cognizable by the Sandiganbayan. [Sec. 4, PD 1606, as amended by RA 8249]

3) Institutes the civil action prior to the criminal action.

• An offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared. [Garcia v. Florido]

RESERVATION TO FILE SEPARATE CIVIL ACTION • The reservation of the right to institute

separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

• Procedure for making the reservation: 1) Filing a manifestation in the criminal case

that the offended party is reserving his right to file a separate civil action;

2) Filing the separate civil action and informing the court trying the criminal case that the offended party has filed a separate civil action.

• The rule requiring reservation does not apply to Art. 32-34 and 2176, CC. These civil actions can be filed and prosecuted independently of the criminal action.

• No counterclaim, cross-claim or 3rd-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. [Rule 111, Sec. 1]

WHAT CONSTITUTES CIVIL LIABILITY 1) RESTITUTION - Returning of the thing itself,

with allowance for deterioration or diminution of value. [Art. 105, RPC]

2) REPARATION - Payment of damage caused, taking into consideration the sentimental value of the thing to the injured party. [Art. 106, RPC]

3) INDEMNIFICATION - Payment of consequential damages suffered by the injured

party, his family or a 3rd person by reason of the crime. [Art. 107, RPC]

CRIMINAL LIABILITY VIS-À-VIS CIVIL

LIABILITY • Many legal scholars treat as a misconception or

fallacy the generally accepted notion that the civil liability actually arises from the crime when, in the ultimate analysis, it does not. While an act/omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act/omission, done intentionally or negligently, WON the same be punishable by law. In other words, criminal liability will give rise to civil liability only if the same felonious act/omission results in damage/injury to another and is the direct and proximate cause thereof. Damage/injury to another is evidently the foundation of the civil action. Such is not the case in criminal actions for, to be criminally liable, it is enough that the act/omission complained of is punishable, regardless of WON it also causes material damage to another. [Banal v. Tadeo]

• Underlying the legal principle that a person who is criminally liable is also civilly liable is the view that from the standpoint of its effects, a crime has dual character: (1) as an offense against the state because of the disturbance of the social order; and (2) as an offense against the private person injured by the crime unless it involves the crime of treason, rebellion, espionage, contempt and others wherein no civil liability arises on the part of the offender either because there are no damages to be compensated or there is no private person injured by the crime. [Occena v. Icamina]

SEPARATE, SIMULTANEOUS AND

INDEPENDENT CIVIL ACTIONS • Reservation is not necessary. • Active participation in the prosecution of the

criminal case does not bar the filing of an independent and separate civil action for damages under Art. 29, CC. The civil action based on criminal liability and a civil action under Art. 29 are two separate and independent actions [Bonete v. Zosa]

• When allowed: 1) The guilt of the accused is not proven

beyond reasonable doubt. [Art. 29, CC] 2) Violation by a public officer of the following

rights: a) Freedom of religion; b) Freedom of speech; c) Freedom to write for the press or to

maintain a periodical publication; d) Freedom from arbitrary/illegal

detention; e) Freedom of suffrage; f) The right against deprivation of

property without due process of law; g) The right to a just compensation when

private property is taken for public use;



h) The right to the equal protection of the laws;

i) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;

j) The liberty of abode and of changing the same;

k) The privacy of communication and correspondence;

l) The right to become a member of associations/societies for purposes not contrary to law;

m) The right to take part in a peaceable assembly to petition the government for redress of grievances;

n) The right to be free from involuntary servitude in any form;

o) The right of the accused against excessive bail;

p) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf;

q) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

r) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

s) Freedom of access to the courts. 3) Cases of defamation, fraud and physical

injuries. 4) When a member of a city/municipal police

force refuses/fails to render aid/protection to any person in case of danger to life/property.

5) Quasi-delict. • A quasi-delict case may be brought by

the offended party even if he has not reserved the right to institute a civil case because the quasi-delict case is independent of the criminal case [Parker v. Panlilio]

EFFECTS OF CRIMINAL ACTION ON CIVIL

ACTION 1) Bar to civil action.

• If the criminal action was already commenced, the civil action arising therefrom cannot be instituted until final judgment of the criminal case. [Rule 111, Sec. 2 par. 1]

• Double recovery of damages arising from the same act/omission is prohibited. [Art. 2177, CC]

2) Suspension of civil action. • If the criminal action is filed after the civil

case has already been instituted, the civil case may be suspended in whatever stage it is until final judgment of the criminal case. [Rule 111, Sec. 2 par. 2]

3) Consolidation with the criminal action. • Before final judgment in the civil case, it

may be consolidated with the criminal action, upon motion by the offended party. The evidence in civil case shall be automatically reproduced in the criminal case without prejudice to the right of the prosecution to cross-examine witnesses presented by the offended party and for the parties to adduce additional evidence. [Rule 111, Sec. 2 par. 2]

4) Tolling of prescriptive period. • During the pendency of the criminal action,

the running of the prescriptive period of the civil action that cannot be instituted separately or has been suspended shall be tolled. [Rule 111, Sec. 2 par. 3]

EXTINCTION OF THE CRIMINAL ACTION • General rule: It will not cause the extinction

of the civil action. • Exception: Civil action based on delict

may be deemed extinguished if there is a finding in a final judgment in the criminal action that the act/omission from which the civil liability may arise does not exist. [Rule 111, Sec. 2 last par.]

EFFECT OF DEATH ON CIVIL ACTION [Rule 111, Sec. 4] 1) If death is before arraignment – Dismissal of

case without prejudice to filing of civil action against estate of the deceased.

2) If death is after arraignment and during pendency of criminal action – Extinguishes civil liability. • Exception: Independent civil actions,

which may be brought against the estate of the deceased or legal representative after proper substitution.

EFFECT OF THE CIVIL ACTION

JUDGMENT, ON THE CRIMINAL ACTION [Rule 111, Sec. 5] • If the civil action judgment absolves the

defendant, it does not bar criminal action against the defendant for the same act or omission.

EFFECT OF ADMINISTRATIVE CASES ON

THE CRIMINAL ACTION • Administrative cases are independent from

criminal actions for the same act/omission. [People v. Toledano]

EXISTENCE OF PREJUDICIAL QUESTION • General rule: Where both a civil and a

criminal case arising from the same facts are filed in court, the criminal case takes precedence. • Exception: If there exists a prejudicial

question which should be resolved first before an action could be taken in the criminal case.

• PREJUDICIAL QUESTION - That which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and



the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. [Ras v. Rasul] • Elements: [Rule 111, Sec. 7]

1) Previously initiated civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action;

2) The resolution of such issue determines WON the criminal action may proceed.

• With whom to file petition: 1) Office of the prosecutor; 2) Court conducting the PI.

FILING FEES • Filing fees of the civil action are deemed

instituted in criminal action. • No filing fees are required for amounts of

actual damages, except as otherwise provided (i.e. BP 22 cases).

• Moral, exemplary and other damages should be specified in complaint and corresponding filing fees should be paid, otherwise the trial court will not acquire jurisdiction over such other damages.

• Where moral, exemplary and other damages are not specified in the complaint/information, the grant and amount are left to the sound discretion of the trial court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment.

III. PRELIMINARY

INVESTIGATION [Rule 112, as amended by AM 05-8-26-SC (effective October 3, 2005)]

DEFINITION • An inquiry/proceeding to determine WON there

is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. [Rule 112, Sec. 1]

• It is an executive function, although the prosecutor is a quasi-judicial authority. He is tasked to determine WON a criminal case must be filed in court

• Even if an executive function, it is considered a judicial inquiry, a judicial proceeding as it involves opportunity to be heard on the part of the complainant and the respondent, the production and weighing of evidence and decision, and as prosecutor acts as quasi-judicial officer.

• Purpose:

1) To inquire concerning the commission of the crime and the connection of accused with it, in order that he may be informed of the nature and character of the crime charged against him, and if there is probable cause in believing him guilty, that the state may take the necessary steps to bring him to trial;

2) To preserve the evidence and keep the witnesses within the control of the state;

3) To determine the amount of bail, if the offense is bailable;

4) Principally, to determine WON a crime has been committed and WON there is probable cause to believe that the accused is guilty. It is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also protect the state from useless and expensive trials. It is intended to protect the accused from the inconvenience, expense and burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer. It is also intended to protect the state from having to conduct useless and expensive trials. [Tandoc v. Resultan]

• Absence of PI does not: 1) Impair validity of the information; 2) Render it defective; 3) Affect the court’s jurisdiction; 4) Constitute ground for quashing the

information. • Absence of a PI does not impair the validity of

the information. If the court’s attention is called to absence of PI, the court should suspend the proceedings and remand the case to prosecutor. Absence of PI does not go into the jurisdiction of the court, but merely to the regularity of proceedings.

• The rule is that the right to PI is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. [Go v. CA]



• If the accused invokes the right to PI but the trial judge nonetheless proceeds with the arraignment over the objection and required the prosecutor to present evidence, the arraignment and presentation of some witnesses does not amount to a waiver of the said right.

WHEN REQUIRED • General rule: PI is required to be conducted

before a complaint/information is filed for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day, without regard to the fine. [Rule 112, Sec. 1, par. 2] • Exception: When a person is lawfully

arrested without a warrant involving an offense that requires a PI, a complaint/information may be filed without conducting the PI if the necessary inquest is conducted. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or by a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. • However, before the complaint/

information is filed, the person arrested may ask for a PI, but he must sign a waiver of the provisions of Art. 125, RPC in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within 15 days from its inception.

• After the filing of the complaint/information in court without a PI, the accused may within 5 days from the time he learns of its filing, ask for a PI with the same right to adduce evidence in his defense as provided in Rule 112. [Rule 112, Sec. 6]

WHO MAY CONDUCT PI 1) Provincial/city prosecutors and their assistants; 2) National and regional state prosecutors; 3) Other officers as may be authorized by law. • The authority shall include crimes cognizable by

the proper courts in their respective jurisdiction.

• COMELEC may conduct investigation as regards election offenses. [Art. 9-C, Sec. 2(6), Consti; Sec. 265, Omnibus Election Code]

• The Ombudsman may conduct an investigation when the case is not under the jurisdiction of the Sandiganbayan. [Art. 11, Sec. 12, Consti] • The Ombudsman can act on a complaint in

any form; and there is no right to appeal from his resolution.

PROCEDURE 1) Filing of the complaint. [Rule 112, Sec. 3(a)]

• The complaint must state the respondent’s address. It must include the affidavits of complainant and the witnesses, and other documents to establish probable cause.

• It must be in 2 copies, and subscribed and sworn to before a prosecutor or

government official authorized to administer oath or notary public.

2) Action of the investigating officer. [Rule 112, Sec. 3(b)] • Investigating officer must act within 10

days after the filing of the complaint. He will either: a) Dismiss - If he finds no ground to

continue investigation; b) Issue a subpoena to the respondent,

attaching the complaint and other documents. • If subpoena is not possible, the

investigating officer shall decide based on what complainant presented.

• Respondent has the right to examine the evidence submitted by complainant, and copy evidence at his expense.

3) Defendant’s counter-affidavit. [Rule 112, Sec. 3(c)] • It must me made within 10 days from

receipt of complaint, and must comply with the same requirements as a complaint.

4) Hearing. [Rule 112, Sec. 3(e)] • The investigator must conduct a hearing

within 10 days from receipt of the counter-affidavit. The hearing must be finished in 5 days.

• Hearing is conducted only if there are such facts and issues to be clarified from a party or a witness.

• Parties may be present evidence, but they have no right to examine or cross-examine. Questions of parties shall be submitted to the investigating officer.

• Within 10 days, the officer shall determine WON there is sufficient ground to hold respondent for trial.

5) Resolution. [Rule 112, Sec. 4] • If the investigating officer finds no PC, he

will dismiss the case. Otherwise, he will prepare an information and resolution.

• PROBABLE CAUSE (PC) – For purposes of filing an information by the prosecutor, it is the existence of such facts and circumstances as would excite the belief, in a reasonable mind acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.

• Probable cause and prima facie evidence are different. Prima facie evidence denotes evidence which, if unexplained/ uncontradicted, is sufficient to sustain a proposition, as to counterbalance the presumption of innocence and warrant the conviction of the accused.

• He certifies in the information that he is an authorized officer; that he personally examined the complainant and witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence.

6) Review. [Rule 112, Sec. 4] • Within 5 days from resolution, the

investigating officer will forward the case to the prosecutor or the ombudsman.



• Within 10 days from receipt of the resolution, the prosecutor/ombudsman will act on the case.

• The prosecutor/ombudsman has to authorize/approve the filing of an information by the investigating officer.

• In case of dismissal by investigating officer, the prosecutor/ombudsman, if he disagrees, may file the information himself or any deputy or order any prosecutor to do so without conducting a new PI.

• The DOJ Secretary may file the information or dismiss the information filed by the prosecutor/ombudsman.

7) Filing of information/complaint in court. [Rule 112, Sec. 5] • Within 10 days from the filing of

complaint/information, the judge may: a) Dismiss the case, if he thinks there is

no PC. b) Otherwise, issue a warrant of arrest (if

RTC). • Warrant of arrest is not necessary

when respondent is already detained or if the offense is punishable by fine only.

c) Order presentation of additional evidence within 5 days from notice and issue, if he has doubt regarding the existence of PC. He must resolve it within 30 days from filing of complaint/ information.

RECORD OF THE INVESTIGATION [Rule 112, Sec. 7] • General rule: PI record does not form part of

the case record. • Exception: The court may order the

production of the PI record (or part thereof): 1) When necessary in the resolution of the

case or any incident therein; 2) When it is to be introduced as an

evidence in the case by the requesting party.

CASES NOT REQUIRING PI NOR COVERED

BY THE RULE ON SUMMARY PROCEDURE [Rule 112, Sec. 8] 1) For cases punishable by imprisonment of less

than 4 years, 2 months and 1 day, filed with the prosecutor or MTC/MCTC, follow the procedure steps #1 - #5 outlined above if.

2) Within 10 days after the filing of the complaint/information, if the judge finds no PC after personally evaluating the evidence or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same.

3) However, the judge may require the submission of additional evidence within 10 days from notice, to determine further the existence of PC. a) If the judge still finds no PC despite the

additional evidence, he shall dismiss the case within 10 days from its submission or expiration of said period,

b) If the judge finds PC, he shall issue a warrant of arrest or a commitment order (if

the accused had already been arrested) and hold him for trial. • However, if the judge is satisfied that

there is no need to place the accused under custody, he may issue summons instead.



IV. ARREST DEFINITION • ARREST – Taking of a person into custody in

order that he may be bound to answer for the commission of an offense. [Rule 113, Sec. 1]

• Ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. However, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the same can be easily taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril. Although in the guise of a request, it was obviously a command or an order of arrest that a person could hardly be expected to defy. [(Sanchez v. Demetriou (1993)]

MEANS OF ARREST 1) By actual restraint of the person to be

arrested; 2) By submission to the custody of the person

making the arrest. [Rule 113, Sec. 2, par. 1]

• No violence or unnecessary force shall be used in making an arrest. Person arrested shall not be subject to a greater restraint than necessary. [Rule 113, Sec. 2, par. 2]

• Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and impression that submission is necessary. [Sanchez v. Demetriou (1993)]

IMMUNITY FROM ARREST 1) Senators and Members of the House of

Representatives, while Congress is in session and for offenses punishable by not more than 6 years imprisonment. [Art. 6, Sec. 11, Consti]

2) Ambassadors and ministers of foreign countries. [RA 75]

A. ARREST WITH WARRANT ISSUANCE OF WARRANT OF ARREST ESSENTIAL REQUISITES OF A VALID ARREST WARRANT [Art. 3, Sec. 2, Consti] 1) It must be issued upon PC which must be

determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce.

2) The warrant must particularly describe the person to be seized.

INSTANCES WHEN JUDGE ISSUES WARRANT OF ARREST 1) Upon the filing of the information by the public

prosecutor and after personal evaluation by the judge of the prosecutor’s resolution and supporting evidence. [Rule 112, Sec. 6(a)] • The judge does not have to personally

examine the complainant and his witnesses. The prosecutor can perform the same functions. [Soliven v. Makasiar]

• Bare certification by the fiscal is not enough. It should be supported by a report and necessary documents. [Lim v. Felix (1991)]

2) Upon application of a peace officer and after personal examination by the judge of the applicant and the witnesses he may produce. [Rule 112, Sec. 6(b)] • Rationale: There is yet no evidence on

record upon which judge may determine the existence of PC.

• Conditions: a) The investigating judge must have

examined in writing and under oath the complainant and his witnesses by searching questions and answers.

b) He must be satisfied that PC exists; c) There is a need to place the respondent

under immediate custody in order not to frustrate the ends of justice. [Samulde v. Salvani (1988)]

• A warrant of arrest has no expiry date. It is

only subject to the requirements found in Section 4, Rule 113.

EXECUTION OF WARRANT OF ARREST DUTY OF HEAD OF OFFICE TO WHOM THE WARRANT WAS DELIVERED FOR EXECUTION • To cause the warrant to be executed within 10

days from its receipt. [Rule 113, Sec. 4] DUTIES OF THE ARRESTING OFFICER 1) To arrest the accused and deliver him to the

nearest police station or jail without unnecessary delay. [Rule 113, Sec. 3]

2) To make a report to the judge who issued the warrant. [Rule 113, Sec. 4] • Within 10 days after expiration of the

period to execute. TIME OF MAKING ARREST [Rule 113, Sec. 6] • Arrest may be made on any day and at any

time of the day or night. MANNER OF MAKING ARREST [Rule 113, Sec. 7] • The officer shall inform the person to be

arrested of the cause of the arrest and the fact that the warrant has been issued for his arrest. • Exception:

1) When the accused flees or forcibly resists before the officer has the opportunity to inform him;

2) When giving such information shall imperil the arrest of the accused.

• The warrant of arrest need not be in the possession of the officer at the time of the arrest. But after arrest, if the person arrested



so requires, the warrant must be shown to him as soon as practicable.

RIGHTS OF THE ARRESTING OFFICER 1) To summon assistance. [Rule 113, Sec. 10]

• He may orally summon as many persons as he deems necessary to assist him in effecting the arrest.

• Persons summoned shall assist in effecting the arrest when he can do so without detriment to himself.

2) To break into any building/enclosure where the person to be arrested is or is reasonably believed to be. [Rule 113, Sec. 11] • If he is refused admittance after

announcing his authority and purpose. • Also applicable where there is a valid arrest

without a warrant. • Rationale: Person to be arrested cannot

use his house/building/enclosure as a shelter for crime. The inviolability of domicile cannot be used to shield arrest.

3) To break out from the building/enclosure when necessary to liberate himself. [Rule 113, Sec. 12] • Also applicable where there is a valid arrest

without a warrant. 4) To search the person arrested for dangerous

weapons or anything which may have been used or constitute proof in the commission of an offense. [Rule 126, Sec. 13] • Without need of a search warrant.

B. WARRANTLESS ARREST

INSTANCES OF LAWFUL WARRANTLESS

ARREST 1) IN FLAGRANTE DELICTO – Literally, caught

in the act of committing a crime. When the person to be arrested has committed, is actually committing or is attempting to commit an offense in the presence of the peace officer or private person who arrested him. [Rule 113, Sec. 5(a)] • “In his presence” means: [People v.

Evaristo (1992)] a) He sees the offense, even though at a

distance; b) He hears the disturbances created by

the offense and proceeds at once to the scene;

c) Offense is continuing or has been consummated at the time arrest is made.

2) HOT PURSUIT ARREST - When an offense has been committed and the peace officer or private person has PC to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. [Rule 113, Sec. 5(b)] • “Just” implies immediacy in point of time • Personal knowledge must be based on PC

which means an actual belief or reasonable grounds of suspicion. • The grounds of suspicion are

reasonable when, in the absence of actual belief of the arresting officer, the suspicion that the person to be arrested is probably guilty of committing the

offense is based on actual facts. [Posadas v. Ombudsman (2000)]

3) When the person to be arrested is a prisoner who has escaped: [Rule 113, Sec. 5(c)] a) From a penal establishment or place where

he is: (1) Serving final judgment; (2) Temporarily confined while his case is

pending. b) While being transferred from one

confinement to another. • Rationale: At the time of arrest, the

escapee is in continuous commission of a crime (i.e. evasion of service of sentence).

4) When a person who has been lawfully arrested escapes or is rescued. [Rule 113, Sec. 13)]

5) By the bondsman for the purpose of surrendering the accused. [Rule 114, Sec. 23, par. 1] • When an accused released on bail attempts

to depart from the Philippines without permission of the court where the case is pending. [Rule 114, Sec. 23, par. 2]

MANNER OF ARREST 1) By an officer – The officer shall inform the

person to be arrested of his authority and the cause of the arrest. [Rule 113, Sec. 8] • Exception:

a) The person to be arrested is engaged in the commission of the offense;

b) He is pursued immediately after its commission;

c) He escapes, flees or forcibly resists before the officer has the opportunity to so inform him;

d) Giving such information will imperil the arrest.

2) By a private person - The private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest. [Rule 113, Sec. 9] • Exception: Same as those for arrest by an

officer. • The private person must deliver the

arrested person to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Sec. 7. Otherwise, the private person may be held liable for illegal detention.

C. ILLEGAL ARREST • Definition: If the arrest of a person is not

justified by any of the instances of a warrantless arrest under Rule 113, Sec. 5.

• The fact that the person arrested did not actually commit the crime does not render the arrest illegal.

CONSEQUENCES OF AN ILLEGAL ARREST 1) The documents/things/articles seized following

the illegal arrest are not admissible in evidence. They are considered fruits of the poisonous tree.

2) The arresting person/officer may be held criminally liable for illegal arrest. a) Unlawful arrest; [Art. 269, RPC] b) Arbitrary detention. [Art. 124, RPC]

3) The arresting officer may be held civilly liable for damages. [Art. 32, CC]



• It is not necessary that there should be bad faith or malice. Such requisite would defeat the main purpose of the provision which is the effective protection of individual rights.

4) The fact that the arrest was illegal does not render the subsequent proceedings void and deprive the State of its right to convict when all the facts point to the culpability of the accused.

CURING AN ILLEGAL ARREST

1) By filing of an information in court; and 2) Subsequent issuance by the judge of a warrant

of arrest. WAIVER OF THE ILLEGALITY OF ARREST • The accused may waive the illegality of his

arrest either expressly or impliedly. • The objection to illegality of arrest must be

made before arraignment in a MTQ; otherwise it is deemed waived. [Rule 117, Sec. 9] • Filing of MTQ which includes other grounds

does not amount to waiver. • Application for or admission to bail does not

amount to waiver. [Rule 114, Sec. 26]

V. CUSTODIAL INVESTIGATION • Definition: It involves the questioning initiated

by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

• Custodial investigation begins where the investigation is no longer a general inquiry into an unsolved crime but has began to focus on a particular suspect, the suspect has been taken into police custody, and the police carry out a process of interrogation that lends itself to eliciting incriminating statements. [People v. Rodriguez]

ALSO CONSIDERED AS CUSTODIAL

INVESTIGATION (CI)

1) The practice of issuing an "invitation" to a

person who is investigated in connection with an offense he is suspected to have committed. [Sec. 2, last par., RA 7438]

2) RE-ENACTMENT – A demonstration by the accused of how he committed the crime. It is a police contrivance designed to test the truthfulness of the statements of the witness who had confessed to the commission of the crime.

NOT CONSIDERED AS CI 1) Police line-up. [People v. Pavillare (2000)]

• It is conducted before the CI, the purpose of which is to identify the suspect among many persons lined up.

• TOTALITY OF CIRCUMSTANCES TEST – Test employed in resolving the admissibility of out-of-court identification of suspects; requires the following factors to be considered: [People v. Teehankee (1995)] a) The witness’ opportunity to view the

criminal at the time of the crime; b) The witness’ degree of attention at that

time; c) The accuracy of any prior description

given by the witness; d) The level of certainty demonstrated by

the witness at the time of identification;

e) The length of time between the crime and the identification;

f) The suggestiveness of the procedure. • However, a one-on-one confrontation is

considered within the ambit of CI. This method is as tainted as confession without the presence of counsel. [People v. Teves (2001)]

2) Ultraviolet ray examination. • Its purpose is to determine the presence of

ultraviolet powder and does not require presence of counsel.

CUSTODIAL RIGHTS OF THE ACCUSED [Sec. 2, RA 7438] 1) To be assisted by counsel at all times.

• Waiver of the right to counsel must be made with the assistance of counsel. [Art. 3, Sec. 12(1), Consti]

• Specifically in the following instances: a) Signing of the written custodial report;



b) Signing of the written extra-judicial confession • In the absence of counsel and upon

valid waiver, it may be made in the presence of any his parents, elder brothers and sisters, spouse, the municipal mayor, the municipal judge, district school supervisor, or priest/minister of the gospel as chosen by him.

c) Signing of the waiver to the provisions of Art. 125, RPC.

2) To be informed, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under CI. • If he cannot afford to have his own

counsel, he must be provided with a competent and independent counsel by the investigating officer.

• Assisting counsel may be any lawyer, except those: a) Directly affected by the case; b) Charged with conducting PI; c) Charged with the prosecution of

crimes; [Sec. 3, RA 7438] 3) To be allowed visits by or conferences with any

member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national NGO duly accredited by the Commission on Human Rights or by any international NGO duly accredited by the Office of the President. • "Immediate family" includes his or her

spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

VI. BAIL

• Definition: The security given for the release

of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under conditions hereinafter specified. [Rule 114, Sec. 1]

CONCEPT AND PURPOSE • Implementation of the right to bail under the

constitution. [Art. 3, Sec. 13, Consti] • Flows from the presumption of innocence.

[Paderanga v. CA (1995)] • Delivery of the accused to others who become

entitled to his custody and responsible for his appearance. [Philippine Phoenix Surety v. Sandiganbayan (1987)]

• Person under detention or legal process may be released upon admittance to bail. [Rule 114, Sec. 3]

• It shall not constitute as a waiver of his right to challenge the legality of his arrest or the absence of PI. [Rule 114, Sec. 26]

WHEN NOT REQUIRED 1) When the law or ROC so provides. 2) When the person has been in custody for a

period equal to or more than the possible maximum imprisonment prescribed for the offense charged. • He is to be released immediately, without

prejudice to the continuation of the trial. • If the maximum penalty is destierro, he

shall be released after 30 days of preventive imprisonment. [Rule 114, Sec. 16]

CONDITIONS OF BAIL 1) Undertaking is effective upon approval and

shall remain in force at all stages of the case until promulgation of the RTC judgment. • WON the case was originally filed in the

RTC. • Unless cancelled.

2) Accused shall appear before the proper court. • Whenever required by the court or the

ROC. • IT effectively prohibits the right to travel of

the accused. [Silverio v. CA (1991)] 3) Failure of the accused to appear at the trial

shall be deemed waiver of his right to be present. • If failure was without justification and

despite due notice. • Trial may proceed in absentia.

4) Bondsman shall surrender the accused to the court for execution of final judgment. [Rule 114, Sec. 2]

• The conditions must be stated in the original

papers, along with full name of the accused and the amount of the undertaking.

• The court may impose other conditions where the likelihood of accused jumping bail or of committing other harm to the citizenry is feared. Examples: • Increase the amount of bail bond; • Require the accused to report periodically

and make an accounting of his movements;



• Accused might be warned that trial will proceed in absentia [Almeda v. Villaluz (1975)]

• Arraignment of the accused is not allowed as a condition for bail. [Lavides v. CA (2000)]

• The court cannot impose conditions upon the bondsmen, in addition to the obligation to deliver the accused before the court. [Bandoy v. Judge of CFI]

KINDS OF BAIL 1) Corporate surety.

• By any domestic/foreign corporation licensed as a surety and currently authorized to act as such. [Rule 114, Sec. 10]

• Court may not refuse corporate surety bond and require cash bond. [Almeda v. Villaluz (1975)]

• Note: However, the SC also held that the ROC left to the trial judge’s discretion the question of whether bail should be posted in form of a corporate surety bond or property bond or a cash deposit or a personal recognizance [Re: Judge Silverio Tayao, Makati RTC Br.143 (1994)]

2) PROPERTY BOND – An undertaking constituted as a lien on the real property given as security for the amount of the bail. [Rule 114, Sec. 11] • Qualifications of sureties: [Rule 114, Sec.

12] a) Each must be a resident owner of real

estate within the Philippines; • Court may require that he is a

resident of the province. [Villaseñor v. Abaño (1967)]

b) Where there is only one surety, his real estate must be worth at least the amount of undertaking;

c) If there are 2 or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded.

• Justification of sureties: [Rule 114, Sec. 13] • By affidavit taken before the judge that

he possesses the qualification prescribed in the preceding section;

• Describe the property given as security, stating the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities;

• Court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper.

3) Cash bond. [Rule 114, Sec. 14] • Cash corresponding to the amount of bail

fixed by the court or recommended by the prosecutor who investigated or filed the case.

• Deposited with the nearest internal revenue collector or provincial/city/municipal treasurer.

• Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements, the accused shall be discharged from custody.

• The money deposited shall be applied to the payment of fine and costs. Any excess shall be returned to the accused or to whoever made the deposit.

• The judge has no authority to receive a deposit of cash bail.

• The cash should not be kept in the judge’s office, much less his own residence. [Naui v. Mauricio]

4) Recognizance. [Rule 114, Sec. 15] • Definition: Obligation of record, entered

into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial. [People v. Abner (1950)]

• Effect: Transfer custody of the accused from the public officials who have him in their charge to keepers of his own selection.

• Whenever allowed by law or by the ROC: a) In cases of violations of

municipality/city ordinances, and criminal offenses where the penalty is not higher than arresto mayor and/or fine of P2K or both. [RA 6036]

b) Youthful offender, upon recommendation of DSWD or other agencies authorized by court. [PD 603]

c) Accused applying for probation before finality of judgment. [PD 968]

d) Person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged. [Rule 114, Sec. 16]

AMOUNT OF BAIL • Guidelines:

1) Financial ability of the accused to give bail; 2) Nature and circumstances of the offense; 3) Penalty for the offense charged; 4) Character and reputation of the accused; 5) Age and health of the accused; 6) Weight of evidence against the accused; 7) Probability of the accused appearing at

trial; 8) Forfeiture of other bail; 9) The fact that the accused was a fugitive

from justice when arrested; 10) Pendency of other cases where the accused

is on bail. • DOJ Department Circular No. 89 (2000 Bail

Bond Guide) provides standards and criteria for recommendation of amount of bail to be granted, if possible and the rules for the computation of bail.

• Increase or reduction of amount of bail may be imposed by the court after the accused is admitted to bail upon a good cause: 1) Increased bail – Accused may be

committed to custody if he does not give bail in the increased amount within a reasonable period of time. [Rule 114, Sec. 20]

2) Reduced bail – Person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged may be released on a reduced bond. [Rule 114, Sec. 16]

A. RIGHT TO BAIL



ACCRUAL OF THE RIGHT TO BAIL ACCUSED MUST BE IN CUSTODY • The right to bail accrues when a person is

arrested or deprived of his liberty. [Paderanga v. CA (1995)]

• The Court should not even allow a motion for bail to be set for hearing unless it has acquired jurisdiction over the person of the accused and the case by its filing in court. [Guillermo v. Judge Reyes (1995)]

CUSTODY, HOW ACQUIRED 1) By virtue of a warrant or a warrantless arrest; 2) Voluntary submission to the court’s jurisdiction.

• General rule: The mere filing of an application

for bail is not sufficient to submit to the jurisdiction of the court. [Santiago v. Vasquez, (1992)] • Exception: When there is an application

for bail without the personal appearance of the accused (e.g. when he is confined in the hospital). [Santiago v. Vasquez; Paderanga v. CA]

ADMITTANCE TO BAIL AS A MATTER OF

RIGHT

• All persons in custody shall be admitted to bail

as a matter of right: • Before or after conviction by the MTC; • Before conviction by RTC of an offense not

punishable by death, reclusion perpetua or life imprisonment. [Rule 114, Sec. 4]

• It is not necessary that there is a formal complaint filed against him. [Herras Teehankee v. Rovira]

ADMITTANCE TO BAIL AS

DISCRETIONARY • Upon conviction by the RTC of an offense not

punishable by death, reclusion perpetua or life imprisonment: • It may be acted upon by the RTC despite

the filing of notice for appeal, as long as original record is not yet transmitted to the appellate court

• If RTC conviction changed the nature of the offense from non-bailable to bailable, it can be resolved only by the appellate court.

• If bail is granted, provisional liberty continues under the same bail subject to the consent of the bondsman. [Rule 114, Sec. 5]

• In deportation proceedings, it is the CID’s discretion. [Harvey v. Defensor-Santiago (1990)]

DENIAL OF BAIL

• If the penalty imposed by TC is imprisonment

exceeding 6 years, and prosecution shows: [Rule 114, Sec. 5] 1) Recidivism, quasi-recidivism, habitual

delinquency, commission of crime aggravated by circumstance of reiteration;

2) Previously escaped from legal confinement, evasion of sentence or violation of conditions of bail without valid justification;

3) Commission of offense while under probation, parole or conditional pardon;

4) Probability of flight; 5) Undue risk that he may commit another

crime during the pendency of appeal.

RIGHT TO BAIL NOT AVAILABABLE

1) Capital offense or an offense punishable by

reclusion perpetua or life imprisonment, when evidence of guilt is strong. [Rule 114, Sec. 6] • Prosecution has the burden of proof. [Rule

114, Sec. 8] • CAPITAL OFFENSE - An offense which,

under the law existing at the time of its commission and of the application for admission to bail, may be punished with death.

• Effect of abolition of death penalty: When evidence of guilt is strong, right to bail is still not available. [Carpio v. Maglalang (1991)]

• Hearing on the application for bail is mandatory. [Aurillo Jr. v. Francisco (1994)] • Court must give reasonable notice of

the hearing to the prosecutor or require him to submit his recommendation. [Rule 114, Sec. 18]

2) Right to bail is not available in the military. [Comendador v. de Villa (1991)]

3) After a judgment of conviction has become final; • If applied for probation before finality, he

may be allowed temporary liberty under his bail. [Rule 114, Sec. 24]

4) After the accused has commenced to serve his sentence. [Rule 114, Sec. 24]

B. PROCEDURAL MATTERS IN

BAIL WHERE FILED [Rule 114, Sec. 17] • With the court where the case is pending;

• If the is unavailable, with any RTC/MTC judge in the province/city/municipality.

• With the RTC of the place where the accused was arrested, if different from the place where the case is pending. • If the judge unavailable, with any MTC

judge therein. • If the grant of bail is a matter of discretion or

bail is in the form of a recognizance – Only with the court where the case is pending.

• If there is no formal charge yet - With any court in the province/city/municipality where he is held. (Rule 114, Section 17, ROC)

REMEDY WHEN BAIL IS DENIED • By special civil action in the CA.

• Not in the SC. [Vide at Aleria Sr. v. Velez (1998)]

• Must be filed within 60 days from denial. [Rule 65, Sec. 4]

RELEASE ON BAIL



• Accused must be discharged upon approval of the bail by the judge with whom it was filed.

• If bail is filed with a court other than where the case is pending, the judge who accepted the bail should forward it to the court where the case is pending. [Rule 114, Sec. 19]

• If the accused attempts to depart from the Philippines without permission of the court, he may be re-arrested without the need for a warrant. [Rule 114, Sec. 23]

FORFEITURE OF BAIL [Rule 114, Sec. 21] • If the accused failed to appear in person as

required by the court. • Bondsmen are given 30 days within which to:

1) Produce the body of the principal or give reason for the non-production. • Bondsmen may:

a) Arrest the accused; b) Cause him to be arrested by a

police officer or any other person of suitable age or discretion. • Upon written authority

endorsed on a certified copy of the undertaking.

2) Explain why the accused failed to appear. • If the bondsmen fail to do these, judgment

is rendered against them, jointly and severally, for the amount of the bail.

• Bondsmen’s liability cannot be mitigated or reduced, unless the accused has been surrendered or is acquitted.

CANCELLATION OF BAIL 1) Upon application of the bondsmen, with due

notice to the prosecution, bail may be cancelled upon: a) Surrender of the accused; b) Submission of proof of the death of the

accused. 2) Bail is automatically cancelled upon:

a) Acquittal of the accused; b) Dismissal of the case; c) Execution of the judgment of conviction.

VII. RIGHTS OF THE ACCUSED [Rule 115]

1) To be presumed innocent;

• Until contrary is proved beyond reasonable doubt

• Accusation is not synonymous with guilt. [People v. Dramayo (1971)]

2) To be informed of the nature and cause of accusation against him; • Offense must be clearly charged in the

information. [People v. Ortega (1997)] • Charge must be set forth with sufficient

particularity which will enable him to intelligently prepare his defense. [Balitaan v. CFI of Batangas (1982)]

• The pPurpose is served by arraignment. [Borja v. Mendoza (1977)]

3) To be present and defend in person and by counsel at every stage of the proceedings; a) Right to be present;

• This right may be waived. However, presence is required: (1) For purposes of identification; (2) At arraignment; [Rule 116, Sec.

1(b)] (3) At the promulgation of judgment;

• Exception: If the conviction is for a light offense. [Rule 120, Sec. 6]

• Trial in absentia: • Requisites: [Parada v. Veneracion

(1997)] (1) Prior arraignment; (2) Proper notice of the trial; (3) Failure to appear is

unjustifiable. • Effects: Waiver of right to be

present, right to present evidence and right to cross-examine witnesses. [Gimenez v. Nazareno (1988)] • Note: This doctrine should be

re-examined because the rights waived are distinct rights guaranteed by the Constitution. [Pamaran]

b) Right to counsel; • It means reasonably effective legal

assistance. [Gideon v. Wainright (1963)]

• It is absolute and may be invoked at all times, even on appeal. [Telan v. CA (1991)]

• Duty to appoint counsel de oficio is mandatory only at the time of arraignment. [Sayson v. People (1988)]

• Violation of this right entitles the accused to new trial. [People v. Serzo (1997)]

• It may be waived, so long as not contrary to law, public order, public policy, morals or good customs. • The waiver must be unequivocally,

knowingly and intelligently made [People v. Nicandro (1968)]

c) Right to defend in person. • Only when it sufficiently appears that

he can protect his rights without the assistance of counsel

4) To testify in his own behalf;



• But subject to cross-examination on any matter cited in his direct examination.

5) To be exempt from being compelled to be a witness against himself; • Compulsion includes not only violence but

also moral coercion. [Chavez v. CA (1968)] • Covers only testimonial compulsion and

production of incriminating documents. • It does not include examination of his body

as evidence when it may be material. [US v. Tan Teng (1912)]

• If he testified as a witness in his own behalf, he cannot refuse to answer questions on cross-examination on the ground that the answer would incriminate himself.

• The questions should be on matters related to his direct examination. [People v. Judge Ayson (1989)]

6) To confront and cross-examine witnesses against him at the trial; • This right is waived by non-appearance.

[Carredo v. People (1990)] • Identification by a witness of the accused is

inadmissible if the accused had no opportunity to confront witness. [People v. Lavarias (1968)]

7) To have compulsory process issued to secure attendance of witnesses and production of other evidence in his behalf.

• Trial court should not delegate to the accused the responsibility of getting his witnesses. If a subpoena is issued and the witness failed to appear, the court should order the arrest of the witness if necessary. [People v. Montejo (1967)]

8) To have a speedy, impartial and public trial; • Remedy against denial of right:

a) MTD; b) Dismissal subject to rules on double

jeopardy. [SC Circular 38-98] c) Mandamus. [Vide Abadia v. CA (1994)]

• This right may be waived. • Right to public trial not is violated where

trial was held in chambers [Garcia v. Domingo (1973)] or in the Bilibid prison [US v. Mercado (1905)], if accused failed to object and as long as he could have his friends, relatives and counsel present.

• Trial by publicity is not per se as prejudicial to the right of an accused to fair trial. It is prejudicial only if there are allegations and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. [People v. Teehankee (1995)]

9) To have the right of appeal in all cases allowed and in the manner prescribed by law. • Right to appeal is a statutory right and the

requirements must be complied with; otherwise, the right is lost. [People v. Sabellano (1991)]

• If accused escapes from confinement, appeal is not allowed unless he voluntarily surrenders within period for appeal. [People v. Omar (1991)]

VIII. SEEKING RELIEF FROM A

DEFECTIVE INFORMATION

DEFINITION • MOTION TO QUASH (MTQ) - Formerly called

a demurrer, it is a special pleading, filed by the accused, which hypothetically admits the truth of the facts spelled out in the complaint/information and sets up a matter, which, if duly proved, would preclude further proceedings.

• It cannot be initiated by the judge; otherwise it would amount to pre-judging the case. [People v. Nitafan (1999)]

Order denying MTQ Order granting MTQ

Interlocutory Final order Not appealable absent a showing of GAD

Immediately appealable but subject to rules on double jeopardy

Does not dispose of the case upon its merits

Disposes of the case upon its merits

Proper remedy: appeal after the trial

Proper remedy: appeal the order

MTQ Demurrer to Evidence

Filed before entering plea Filed after the prosecution has rested its case

Does not go into the merits of the case

Based upon the inadequacy of the evidence adduced by the prosecution

Nolle prosequi Quashal of Information

Initiated by prosecutor Initiated by accused Dismissal of criminal case by the government before accused is placed on trial and before he is called to plead, with approval of court

Court has no authority to initiate MTQ. Filing is made before accused enters plea, subject to exceptions

Discontinuance in a civil suit, leaves the matter in the same condition it was before commencement of the prosecution

***

Not an acquittal Acquittal is a ground for quashal

Not a final disposition of the case

Rule 117, Sec. 6

Does not bar subsequent prosecution for the same offense

Rule 117, Sec. 6

TIME TO FILE MTQTIME TO FILE MTQTIME TO FILE MTQTIME TO FILE MTQ

• General rule: At any time before entering his

plea. [Rule 117, Sec. 1] It can be filed even before jurisdiction over his person has been acquired and during PI. • Exception: [Rule 117, Sec. 1; Marcos v.

Sandiganbayan (2000)] 1) If the accusatory pleadings do not

charge an offense; 2) If the court has no jurisdiction over the

case; 3) If the offense or penalty has already

been extinguished; 4) If further prosecution would put him in

double jeopardy.

FAILURE TO FILE BEFORE ENTERING PLEA



• Deemed to be a waiver of all objections which are grounds for a MTQ. [Gamboa v. Cruz (1988)]

• Deprives of the right to object to evidence which could be lawfully introduced and admitted under an information of more or less general terms but which sufficiently charges a definite crime. [People v. Marquez (2000)]

FORM AND CONTENTS [Rule 117, Sec. 2] 1) In writing; 2) Signed by the accused or his counsel; 3) Distinctly specify factual and legal grounds.

• Facts outside the information are allowed to be introduced to prove any of the grounds.

• Inquiry into outside facts may also be allowed even when the ground invoked is that the allegations in the information do not constitute the offense charged. [Garcia v. CA (1997)]

• General Rule: Court shall consider no ground other than those stated in the MTQ. • Exception: LOJ over the offense

charged. GROUNDS [Rule 117, Sec. 3] • The grounds for MTQ are exclusive. • Not valid grounds:

1) Absence of PI; 2) Lack of PC; 3) Non-inclusion of an accused.

1. FACTS CHARGED DO NOT

CONSTITUTE AN OFFENSE • In all criminal cases, the accused should be

informed of the nature and the cause of the accusation against him.

• An information which does not charge an offense or does not allege all the elements of a crime, is void.

• Test: WON the facts alleged, if hypothetically admitted, would meet the essential elements of the offense, as defined by law. [People v Abad (1997)] • That the missing element may be proved

during the trial or that prosecution has presented evidence to establish the same cannot have the effect of validating the void information or proving an offense which does not exist. [People v. Asuncion (1988)]

• Instead of dismissing, the court should give prosecution an opportunity to amend the information. [Rule 117, Sec. 4] • When the court dismisses the case, the

prosecutor should file a valid information, not a petition for review for certiorari.

• The defect is not cured by failure to move to quash or by plea of guilty. The failure does not imply a waiver of the defects that go to the jurisdiction of the offense or to lack in some of the essential elements of the offense charged. [Suy Sui v. People (1953)]

• General rule: In the MTQ, facts other than those alleged may not be considered by the court. • Exception:

• Where they are facts already admitted by the prosecution. [People v. Navarro]

• Where they are undisputed facts apparent from the records of the PI and not denied or admitted by the prosecutor [Salonga v. Pano (1985)]

• Where they are undisputed or undeniable facts that destroy the prima facie truth accorded to allegations of the information [People v. de la Rosa (1988)]

• ROC expressly permits the investigation of facts alleged. [People v. Alagao (1966)] [Rule 117, Sec. 2(f)(h), 4 & 5]

• Rationale: It would be pure technicality for the court to close its eyes to said facts, refuse to quash the information, and require trial.

2. COURT HAS NO JURISDICTIONJURISDICTIONJURISDICTIONJURISDICTION

OVER THE OFFENSE CHARGED • JURISDICTION OVER THE SUBJECT

MATTER – The power to adjudge concerning the general question involved.

• Law defines the offenses and penalties under the jurisdiction of a court.

• If the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred from assailing such jurisdiction on appeal.

• In criminal prosecution, venue or place is jurisdictional. [Rule 110, Sec. 15; Lopez v. City Judge, 1966]

• The court had jurisdiction over the case since for as long as he continues to evade the service of his sentence he is deemed to continue committing the crime, and may be arrested without warrant at any place where he may be found. [Parulan v. Director of Prisons (1968)]

• Where a court has jurisdiction over the offense, the objection that it has no jurisdiction over the person of the accused may be waived. [Layosa v. Rodriguez (1978)]

• In private crimes, complaint of the offended party is necessary to confer authority to the court.

3. COURT HAS NO JURISDICTIONJURISDICTIONJURISDICTIONJURISDICTION

OVER THE PERSON OF THE

ACCUSED • It is waivable expressly or by implication,

unlike jurisdiction over the territory and the subject matter.

• When the objection is raised, court should resolve it before conducting trial to avoid unnecessary expenditure of time and money. [Mead v. Argel (1982)]

• How the jurisdiction is acquired: 1) By arrest of the accused or his voluntary

appearance in court. 2) By allowing himself to be arraigned without

questioning the legality of his arrest. • Illegality of arrest is waivable as it affects only

the jurisdiction of the court over the person of the accused. [People v. Meris (2000)]

• If the accused believes his arrest to be illegal, he should move to quash the information on such ground.

4. OFFICER WHO FILED INFORMATION

HAD NO AUTHORITY TO DO SO



• Authority to file and prosecute criminal cases vested in: 1) Provincial fiscals and their assistants; 2) City fiscals and their assistants; 3) The chief state prosecutor and his deputies.

• A lawyer appointed by the DOJ Secretary may also file an information.

• The prosecutor who signed must have territorial jurisdiction to conduct PI. [Cudia v. CA (1998)]

• Information filed in the Sandiganbayan: Must be signed by a graft investigating officer with prior approval of the Ombudsman. Authority to sign may be challenged if prosecutor files the information without approval of Ombudsman. • The Ombudsman cannot sign when filed

information is filed in the regular courts. [Uy v. Sandiganbayan (1999)]

• Election offenses: Must be signed by duly deputized prosecutors and the legal officers of the COMELEC.

5. COMPLAINT/INFORMATION DOES

NOT CONFORM SUBSTANTIALLY

TO THE PRESCRIBED FORM • The formal and substantial requirements are

provided for in Rule 110, Sec. 6-12. • General rule: Lack of substantial compliance

renders the accusatory pleading quashable. • Exception:

• Mere defects in matters of form may be cured by amendment.

• Objections not raised are deemed waived, and the accused cannot seek affirmative relief on such ground nor raise it for the first time on appeal. [People v. Garcia (1997)]

• Vague or broad allegations are generally not grounds for a MTQ. • The correct remedy for this is a bill of

particulars. [Rule 116, Sec. 9]

6. MORE THAN ONE OFFENSE IS

CHARGED • General rule: Complaint/information must

charge but one offense. [Rule 110, Sec. 13] • Exception: cases in which existing laws

prescribe a single punishment for various offenses. • Complex and compound crimes, except

where one offense was committed in order to conceal another.

• A specific crime set forth in various counts, each of which may constitute a distinct offense. The narration of the specific acts is considered a bill of particulars of facts upon which the inference of the guilt of the accused may be based. [People v. Yap (1968)]

• An offense incidental to the gravamen of the offense charged.

• It is waivable. The accused may be convicted of all the offenses alleged and proved if accused goes to trial without objecting to the inclusion of 2 or more separate offenses in the same information. [People v. Villamor (1998)]

• It is not tantamount to duplicity of offenses. An offense is committed in different modes and is alleged to have been committed in the 2 or

more modes specified. [Ku Bo Lin v. CA (1992)]

• If criminal acts are committed on different occasions, each constitutes a separate offense.

7. CRIMINAL ACTION OR LIABILITY

HAS BEEN EXTINGUISHED • Enjoyment of an accrued right cannot forever

be left on a precarious balance. [People v. Reyes (1989)]

• Protection from prosecution under a statute of limitation is a substantive right. [People v. Sandiganbayan (1992)]

HOW CRIMINAL LIABILITY IS TOTALLY EXTINGUISHED [Art. 89, RPC] 1) Death of the accused;

• Extinguished as to the personal penalties and pecuniary penalties – only when death occurs before final judgment.

2) Service of sentence; • Execution must be by virtue of a final

judgment and in the form prescribed by law.

3) Amnesty; 4) Absolute pardon;

Absolute pardon Conditional pardon

Complete upon its delivery

Only upon the acceptance since accused may view liability less onerous than the terms

Pardon Amnesty

Grant of the executive Grant by the President with concurrence of majority of Congress

Private though official act Public act Must be pleaded and proved

Court must take judicial notice [People v. Vera (1990)]

Granted after conviction

Usually for those subject to trial but have not yet been convicted, but can also be available even after institution of the criminal action and sometimes after conviction

Looks forward – releases from consequences of conviction

Looks backward – abolishes offense itself; completely extinguishes the penalty and all its effects [People v. Vera (1990)]

Extended to pardoned defendant alone and to no other

Granted to all persons guilty of a crime (generally, political cases like rebellion, sedition, treason), and often conditioned upon their return to obedience and duty within a prescribed time

5) Prescription of the crime;

• Definition: Loss/waiver by the state of its right to prosecute a crime. [People v. Castor (1954)]

• Computation of period: [Art. 91, RPC] • Commencement: From the day on

which the crime is discovered by the



offended party, the authorities, or their agents.

• Interruption: Upon the filing of complaint/information • General rule: Includes complaint

filed with the proper officer for PI. • Exception: Period for offenses

penalized by special laws and ordinances is interrupted only by filing in court.

• Commences to run again: When proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him.

• Prescription shall not run when the offender is absent from the Philippines.

• Manner of computing time: • 1 year = 365 days; • 1 month = 30 days, unless specified; • 1 day = 24 hours; • Nights = From sunrise to sunset; • First day shall be excluded and the last

day included. • The rule that if the last day falls on a

Sunday or a holiday, the act can still be done the following day, does not apply to the computation of the period of prescription of a crime.

• Prescription of continuing crime: Counted from the latest/last act constituting the series of acts continuing the single crime. [People v. Castaneda (1990)]

• Prescription periods: [Art. 90, RPC] a) 20 yrs. – Death and reclusion

perpetua; b) 15 yrs – Other afflictive penalties; c) 10 yrs. – Correctional penalties; except

arresto mayor, which prescribes in 5 yrs.;

d) 1 yr. – Libel and similar offenses; e) 6 mos. – Oral defamation and slander

by deed; f) 2 mos. – Light offenses.

• When the penalty fixed is a compound

one, the highest penalty shall be made the basis of the application of letters a-c.

6) Prescription of the penalty;

• Definition: Loss/waiver by the State of its right to demand service of the penalty imposed. [Aquino]

• When and how penalties prescribe: [Art. 92, RPC] a) 20 yrs. – Death and reclusion

perpetua; b) 15 yrs – Other afflictive penalties; c) 10 yrs. - Correctional penalties; except

arresto mayor, which prescribes in 5 yrs.;

d) 1 yr. – Light penalties. • Act No. 3326 governs period of prescription

for violation of special laws. • Where the accused is found to have

committed a lesser offense included in the offense charged, he cannot be convicted of the lesser offense if it has already prescribed. [Magat v. People (1991)]

• Computation of period: [Art. 91, RPC]

• Commencement: From the date when the culprit should evade the service of his sentence.

• Interruption: If the defendant should give himself up, be captured, should go to some foreign country with which this Government has no extradition treaty, or should commit another crime before the expiration of the period.

7) Pardon in private offenses (seduction, abduction, acts of lasciviousness, rape). • It extinguishes the criminal action or remits

the penalty already imposed. • General rule: Pardon should be given

before the filing of criminal complaint. • Exception: Marriage between the

offended woman and the offender. [Art. 344, RPC; People v. Lualhati (1989)]

• Applicable to co-principals, accomplices and accessories.

• If the victim is a minor: Pardon of offended party and of both parents is required. [People v. de la Cruz (1993)]

8. CONTAINS AVERMENTS WHICH, IF

TRUE, WOULD CONSTITUTE LEGAL

EXCUSE OR JUSTIFICATION JUSTIFYING CIRCUMSTANCES [Art. 11, RPC] 1) Acts in defense of his person or rights;

• Requisites: a) Unlawful aggression; b) Reasonable necessity of means

employed; c) Lack of sufficient provocation.

2) Acts in defense of the person or rights of his a) Spouse; b) Ascendants; c) Descendants; d) Legitimate/natural/adopted brothers or

sisters; e) Relatives by affinity in the same degrees; f) Relatives by consanguinity within the 4th

civil degree. • Provided: that the 1st and 2nd requisites in

#1 are present and, in case the provocation was given by the person attacked, that the one making defense had no part.

3) Acts in defense of the person or rights of a stranger; • Provided: that the 1st and 2nd requisites in

#1 are present and that the person defending be not induced by revenge, resentment or other evil motive.

4) Act which causes damage to avoid evil/injury; • Requisites:

a) Evil sought to be avoided actually exists;

b) Injury feared greater than that done to avoid;

c) No other practical and less harmful means.

5) Fulfillment of duty or lawful exercise of a right/office;

6) Obedience to an order issued by a superior for some lawful purpose.

EXEMPTING CIRCUMSTANCES [Art. 12, RPC] 1) Imbecile or insane person;

• Exception: Insane person acted during a lucid interval.



2) Person under 9 y/o; 3) Person over 9 y/o and under 15 y/o;

• Exception: If acted with discernment. 4) Causes injury by mere accident, without fault

or intention, while performing lawful act with due care;

5) Under compulsion of irresistible force; 6) Under impulse of uncontrollable fear of an

equal or greater injury; 7) Fails to perform an act required by law when

prevented by some lawful insuperable cause.

9. DOUBLE JEOPARDY • RULE OF DOUBLE JEOPARDY – When a

person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the express consent of the accused, the latter cannot again be charged with the same or identical offense. [Rule 117, Sec. 3(i)]

• Rationale: • Law of reason, justice and conscience. • No person shall be twice put in jeopardy of

punishment for the same offense; if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution. [Art. 3, Sec. 21, Consti]

• It protects not against peril of 2nd punishment but against being tried again for the same offense.

• SAME OFFENSE TEST – Not only when exactly the same offense, but also when the 2nd offense is an attempt to commit the 1st or is a frustration thereof, or when it necessarily includes or is necessarily included in the 1st offense charged. [People v. Silva]

• To constitute double jeopardy, the offense charged must be the same in law and in fact.

• Requisites of Double Jeopardy: a) 1st jeopardy has attached; b) 1st jeopardy was validly terminated; c) 2nd jeopardy:

(1) For the same offense charged; (2) For an attempt to commit the same or

frustration thereof; or (3) For an offense which necessarily

includes or is necessarily included in the 1st.

• Requisites that must have been obtained in the original prosecution (to determine if 1st jeopardy attached): a) Valid complaint/information;

grounds upon which dismissal was anchored are clearly directed at the sufficiency of said information to sustain the conviction and hence, indicate the absence of the 1st requisite. [Caniza v. People, 1988]

b) Competent court; c) Defendant pleaded to the charge; d) Defendant was either:

(1) Acquitted; • Exception: A dictated, coerced and

scripted verdict of acquittal is a void judgment – it neither binds nor bars anyone. [Galman v. Sandiganbayan (1986)]

(2) Convicted; or (3) The case was dismissed, or otherwise

terminated without his consent. • “Without express consent” refers

only to dismissal or the case

otherwise terminated, and not to conviction or acquittal. [People v. Labatete (1960)]

• If consent is not express, dismissal will be regarded as final – i.e. with prejudice to refiling. [Caes v. IAC (1989)] • Exception: Dismissal has the

effect of acquittal even with the consent of the accused when predicated on (1) insufficiency of the prosecution’s evidence or (2) denial of the right to a speedy trial. [Alamario v. CA (2001)]

TWO CATEGORIES OF DOUBLE JEOPARDY 1) Same offense.

• The offenses penalized either by different sections of the same statute or by different statutes.

• Must examine the essential elements of each.

• Test: WON evidence that proves one offense would also prove the other. [People v. Ramos (1961)]

• It is not necessary to have absolute identity. [People v. Relova (1987)]

2) Same act. • Liability is generated both under an

ordinance and a national statute. • The constitutional protection is available

although the prior offense charged under an ordinance be different from the offense charged under a national statue, provided that both spring from the same act or set of acts. [People v Relova (1987)]

• Examine the location of such acts in time and space.

� Where 2 different laws (or articles of the same law) define 2 crimes, prior jeopardy as to one is not obstacle to a prosecution of the other, although both arise from the same facts, if each involves some important act which is not an essential element of the other. [People v. Doriquez (1968)]

WHEN THERE IS NO DOUBLE JEOPARDY 1) Private offended party appeals the civil aspect

of the case. [Manantan v. CA (2001)] 2) Conviction of a crime under a special law

(malum prohibitum) which also constitutes an offense under the RPC is not a bar to the prosecution under the RPC (malum in se). [People v. Sanchez (1998)]

3) Two informations are filed charging the accused with two different offenses having different elements though arising from the act (e.g. estafa and BP 22). [Ching v. CA (1990)]

4) Prosecutor may revive and reinstate case without the filing of a new information when the information is provisionally dismissed with the conformity of the accused after arraignment and initial presentation prosecution evidence has started, since the order of provisional dismissal had not yet become final. [Lauchengco v. CA (1979)]

5) Dismissal of the case was declared null and void. [People v. Mogol (1984)] • Where an order dismissing a case in not a

decision on the merits, it cannot bar as res judicata a subsequent case based on the same offense. The dismissal being null and



void, the proceeding before the TC may not be said to have been lawfully terminated. [People v. Grospe (1988)]

6) Petition for certiorari filed by the prosecutor to correct the penalty which should be lower that that imposed by the TC – it is favorable to the accused. [People v. Lee Jr. (1984)]

7) Mere filing of two informations charging the same offense – the 1st jeopardy has not set in. [People v. Pineda] • Note: Dissent in People v. Pineda –It is

sufficient that the accused has pleaded in the 1st case in order for the 1st jeopardy to set in.

• Qualification: Prosecution may be said to be forum shopping which will warrant the dismissal of the 2nd case. • The accused should object to any joint

trial since he may forfeit the right to raise double jeopardy in the 2nd case.

8) Filing of 2nd information where a new fact supervened (e.g. the injured party dies from injuries after conviction). • Where there is no supervening event after

arraignment and conviction: a) If the 1st charge was based on findings

of a physician, and a 2nd information was filed charging a more serious crime based on the findings of another physician. [People v. Buling (1960)]

b) If the victim died 2 days prior to arraignment of the accused who pleaded guilty to an information for serious physical injuries thru reckless imprudence – he can no longer be charged with homicide thru reckless imprudence. [People v. City Court of Manila (1983)]

• In a continuing offense, only one crime is committed. Where 2 informations arose from the same transaction, the 2nd cannot prosper. [Mallari v. People (1988)]

• General rule: Prosecution cannot file an appeal or a MFR after jeopardy had attached for the purpose of increasing the imposed penalty. [US v. Kepner (1904)] • Exception: If the purpose is to decrease

the penalty wrongfully imposed, it is beneficial to the accused and there is no reason to complain.

PROCEDURE UPON FILING

HEARING ON THE MOTION • No automatic conversion of a hearing on a MTD

to a hearing on the merits without clear waiver by the accused of his right to a regular trial. [Dayawon v. Garfin (2002)]

WHEN MOTION IS DENIED [Bulaong v. CA (1990)] • Defendant should go to trial without prejudice

on his part to present special defenses he had invoked in his motion.

• He may appeal if an adverse decision is rendered after trial on merits and then assign as error the denial of MTQ.

• General rule: Certiorari and prohibition are not the correct remedies against an order denying a MTQ. • Exception:

1) If information is patently defective. [People v. Ramos (1989)]

2) If offense charged already prescribed. [People v. Ramos (1989)]

3) If lower court acted with GAD. [Reyes v. Camilon (1990)]

4) If any of the following instances occur: [Paredes v. Sandiganbayan (1996)] a) To afford protection to

constitutional rights; b) For orderly administration of

justice; c) Prejudicial question which is sub

judice; d) Prosecution under invalid law/

ordinance/regulation; e) Double jeopardy is clearly

apparent; f) No jurisdiction over the offense; g) Persecution rather than

prosecution; h) Charges manifestly false and

motivated by vengeance; i) No prima facie case against

accused; j) To avoid multiplicity of suits.

WHEN AMENDMENT IS AVAILABLE AS A CURE • The court shall order that an amendment be

made if the motion is based on an alleged defect which can be cured by amendment. [Rule 117, Sec. 4]

• Court shall give an opportunity to the prosecution to correct a defect if based on the ground that the facts charged do not constitute an offense. MTQ shall be granted if: [Rule 117, Sec. 4] 1) Prosecution fails to make the amendment; 2) Complaint/information still suffers from the

same defect despite the amendment. • In a dismissal for the purpose of amendment,

the defendant is not placed in jeopardy and the dismissal is not a bar to the filing of an amended information.

• Though a material amendment is based on the ground that the facts charged do not constitute an offense, the same could be done because the accused has not been arraigned nor can a dismissal on such ground put the accused twice in jeopardy

• It is a good tactical move for the accused to first plead to the information and thereafter file a MTQ either before or after the prosecution has presented evidence. [Cruz v. CA (1991)]

EFFECT OF ORDER GRANTING MTQ COURT ORDER SUSTAINING MOTION • General rule: Court may order that another

complaint/information be filed. [Rule 117, Sec. 5] • Exception: If MTQ was based on the

following grounds: [Rule 117, Sec. 6] 1) Criminal action or liability has been

extinguished; 2) Double jeopardy.

• General rule: If in custody, the accused shall not be discharged unless admitted to bail. [Rule 117, Sec. 5] • The order must state either release of the

accused or the cancellation of his bond. • Exception: No order sustaining the motion

is made or, if having been made, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause.



• Exception to the exception: If he is also in custody for another charge.

• Better approach if the ground was that the court has no jurisdiction over the subject matter: The court should not quash the complaint/information; instead, it should remand/forward the case to the proper court.

EFFECT • General rule: It will not be a bar to another

prosecution for the same offense. [Rule 117, Sec. 6] • Exception: If the ground for the quashal is

either: 1) The criminal action or liability has been

extinguished; 2) The accused has been previously

convicted, or in jeopardy of being convicted, or acquitted of the offense charged.

REMEDIES OF THE PROSECUTION • General rule: To amend the information to

correct the defects if the TC makes the order, and thereafter prosecute on the basis of the amended information. [Rule 117, Sec. 4] • Exception: Prosecution is precluded where

the ground for the quashal would bar another prosecution for the same offense.

• Prosecution may appeal from the order of quashal to the appellate court.

• If the information was quashed because it did not allege the elements of the offense, but the facts so alleged constitute another offense under a specific statute, the prosecution may file a complaint for such specific offense where dismissal is made prior to arraignment and on MTQ. [People v. Purisima (1978)]

PROVISIONAL DISMISSAL • Definition: A case is dismissed without

prejudice to its being refiled or revived. • General rule: Cases are provisionally

dismissed where there has already been arraignment and accused consented to a provisional dismissal. • Exception: If dismissal was due to a

demurrer to evidence. WHEN DISMISSAL BECOMES PERMANENT 1) 1 year after issuance of the order without the

case having been revived for offenses punishable: [Rule 117, Sec. 8] a) By imprisonment not exceeding 6 years; b) By a fine of any amount; c) By both.

2) 2 years after issuance of the order without the case having been revived for offenses punishable by imprisonment of more than six 6 years.

• The State may revive beyond the periods provided there is a justifiable necessity for the delay.

• The court is not mandated to apply Section 8 retroactively simply because it is favorable to the accused. The time-bar under the new rule was fixed for the benefit of the State and the accused; not for the accused only. [People v. Lacson (2003)]

REQUISITE PROCEDURE [Rule 117, Sec. 8]

1) Motion either: a) By prosecution, with express conformity of

accused; • It was respondent who moved to

dismiss for lack of probable cause; hence, dismissal bears his express consent. [People v. Lacson (2002)]

b) By the accused; c) By both.

2) Offended party is notified of the motion. 3) Court issues an order granting the motion and

dismissing the case provisionally. 4) Public prosecutor is served with a copy of the

order of provisional dismissal

• Time-bars will not apply absent any requisite. FAILURE TO ASSERT GROUNDS [Rule 117, Sec. 9] WHEN • Assertion of MTQ grounds should be made

before pleading to the complaint/information. HOW FAILURE TO ASSERT HAPPENS: • By not filing MTQ; • By failing to allege a ground in the MTQ.

motion EFFECT • General rule: Such failure is deemed a waiver

of any objections. • The waiver includes objection based on

ground that information is duplicitous. • Exception: Objections based on the

following grounds: [Rule 117, Sec. 3] 1) Information charges no offense;

• Hence, the entire proceeding is an exercise in futility. [Cruz v. CA (1991)]

2) LOJ over the offense; • General rule: Jurisdictional defects

cannot be waived. • Exception: Jurisdiction over

person of the defendant is waivable expressly or impliedly.

3) Criminal action or liability has been extinguished;

4) Double jeopardy.

IX.IX.IX.IX. DISCOVERY OR OBTAINING DISCOVERY OR OBTAINING DISCOVERY OR OBTAINING DISCOVERY OR OBTAINING

EVIDENCE BEFORE TRIALEVIDENCE BEFORE TRIALEVIDENCE BEFORE TRIALEVIDENCE BEFORE TRIAL



A. BEFORE ARRAIGNMENT BILL OF PARTICULARS (BOP)

Rule 116, Sec. 9 Rule 12, Sec. 1 applies by analogy cf. [Rule 1, Sec. 3]

The accused may move for a BOP

A party may move for a definite statement or for a BOP of any matter which is not averred with sufficient definiteness/particularity

Before arraignment Before responding to a pleading If the pleading is a reply, the motion must be filed within 10 days from service

To enable him properly to plead and prepare for trial

To enable him properly to prepare his responsive pleading

Motion shall specify alleged defects and the details desired

Motion shall point out defects, paragraphs wherein they are contained and details desired

PROCEDURE UPON FILING OF THE MOTION FOR BOP • The clerk must immediately bring it to the

attention of the court. [Rule 12, Sec. 2] • Court may either: [Rule 12, Sec. 2]

1) Deny it; 2) Allow parties opportunity to be heard; 3) Grant it outright.

a) Compliance: • Within 10 days from notice of

order, unless a different period is fixed by the court.

• May be filed either in a separate or an amended pleading, with copy served on the adverse party. [Rule 12, Sec. 3]

• BOP becomes part of the pleading for which it is intended. [Rule 12, Sec. 3]

b) Non-compliance or insufficient compliance: [Rule 12, Sec. 4] • The court may order the striking

out of the pleading or portions to which order was directed, or make other order as it deems just.

• The order granting the motion may be challenged by filing a petition for certiorari.

FILING OF MOTION SUSPENDS PERIOD TO FILE RESPONSIVE PLEADING • After either:

1) Service of the BOP or of a more definite pleading;

2) Notice of denial, the moving party may file a responsive pleading within the period to which he was entitled at the time of filing his motion. • It shall not be less than 5 days in any

event. [Rule 12, Sec. 5] FUNCTION c) To properly prepare a responsive pleading

which includes the preparation of an intelligent answer. Such an answer requires information as to nature, character, scope and extent of the cause of action. [Rule 12, Sec. 1]

d) To amplify/limit a pleading;

e) To define/clarify/particularize/limit the issues in the case;

f) To expedite the trial; g) To assist the court; h) Generally, to prevent injustice. [Virata v.

Sandiganbayan (1993)] THOSE BEYOND THE SCOPE OF A BOP 1) To supply material allegations necessary to the

validity of a pleading; 2) To change a cause of action or defense; 3) To set forth the theory of cause of action or a

rule of evidence on which he intends to rely; [Tan v. Sandiganbayan (1989)]

4) To call matters which should form part of the proof of the complaint upon trial. [Salita v. Magtolis (1994)]

WAIVER • Failure to file motion for BOP despite failure of

the information to allege time of commission with sufficient definiteness amounts to a waiver of the defect. [People v. Marquez (2000)]

PRODUCTION/INSPECTION OF MATERIAL

EVIDENCE IN THE PROSECUTION’S

POSSESSION

• Purpose: To prevent surprise, suppression or alteration. [Rule 116, Sec. 10]

• It is not a matter of absolute right on the part of the defense; nor does the privilege operate ipso facto upon the filing of a motion.

• The privilege may be exercised only by the accused since the prosecution has already as its disposal the entire machinery of the government.

PROCEDURE [Rule 116, Sec. 10] 1) Motion of the accused showing good cause and

with notice to the parties. [Cruz v. People (1994)]

2) The court may order the prosecution to produce and permit the inspection and copying or photographing of: a) Any written statement given by the

complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers;

b) Designated documents, papers, books, accounts, letters, photographs, object or tangible things not otherwise privileged.

REQUISITES [Rule 116, Sec. 10] • The statement/object must constitute or

contain evidence material to any matter involved in the case and are in the possession or under the control of: 1) The prosecution; 2) Police or other law investigating agencies.

B. BEFORE TRIAL CONDITIONAL EXAMINATION OF

WITNESSES ON BEHALF OF THE ACCUSED [Rule 119, Sec. 12] PROCEDURE • Upon motion with notice to the other parties.



• Motion shall be supported by an affidavit of the accused and such other evidence as the court may require.

CONTENTS 1) Name and residence of the witness; 2) Substance of his testimony; 3) That the witness is:

a) Sick/infirm as to afford reasonable ground for believing that he will not be able to attend the trial;

b) Residing more than 100 km from the place of trial and has no means to attend;

c) Other similar circumstances exist that would make him unavailable or prevent him from attending.

EXAMINATION OF DEFENSE WITNESS [Rule 119, Sec. 13] PROCEDURE 1) Court order directing:

a) That the witness be examined at a specific date, time and place;

b) That a copy of the order be served on the prosecutor at least 3 days before the scheduled examination.

2) Examination shall be taken: a) Before a judge; b) If not practicable, a member of the Bar in

good standing so designated by the judge in the order;

c) If the order be made by a court of superior jurisdiction, before an inferior court to be designated therein.

3) Examination shall proceed notwithstanding the absence of the prosecutor, provided he was duly notified of the hearing.

4) Written record of the testimony shall be taken. DEPOSITION NATURE [People v. Webb (1999); Black’s Law Dictionary] • Testimony of the witness that is taken upon

oral question or written interrogatories, in open court, in pursuance of (1) a commission to take testimony issued by a court or (2) under a general law or court rule on the subject, reduced to writing and duly authenticated

• It is intended to be used in preparation and upon trial of a civil/criminal prosecution.

• A pre-trial discovery device by which one party asks oral questions of the other or of a witness for the other party.

APPLICATION • The defense may apply for the taking of

depositions of witnesses. • In matters not specifically touched by Rule 119,

the rule in taking depositions under Rule 24 applies suppletorily since taking depositions and conditional examination of witnesses are taken under the same purpose – the preservation of a material witness’ testimony.

CONDITIONAL EXAMINATION OF WITNESS CONDITIONAL EXAMINATION OF WITNESS CONDITIONAL EXAMINATION OF WITNESS CONDITIONAL EXAMINATION OF WITNESS

FOR THE PROSECUTIONFOR THE PROSECUTIONFOR THE PROSECUTIONFOR THE PROSECUTION [Rule 119, Sec. 15] NATURE • General rule: All witnesses must give their

testimonies at the trial of the case in the presence of the judge:

1) to afford him the opportunity to observe the demeanor of the witnesses, the parties and their counsel

2) to enable him to propound such questions as are material and necessary to support their position

3) to test the credibility of said witnesses • Exception: Witnesses may be conditionally

examined. WHEN ALLOWED • When the witness for the prosecution either:

1) Is too sick or infirm to appear at the trial as directed by the court;

2) Has to leave the Philippines with no definite date of returning.

PROCEDURE • No hearing required by the rules before

conditional examination may be allowed • Witness is conditionally examined before the

court where the case is pending: • In the presence of the accused; • In his absence, after reasonable notice to

attend the examination has been served on him.

• Conducted in the same manner as an examination at the trial.

• Statement taken may be admitted in behalf of or against the accused. • The testimony/deposition may be admitted

in evidence only when the deponent is either: 1) Dead; 2) Incapacitated to testify; 3) Cannot be found in the Philippines.

WAIVER • Before the examination, notice to attend must

be served on the accused. • Failure/refusal of the accused to attend after

notice shall be considered a waiver. EXAMINATION OF CHILD WITNESS • See the Rule on Examination of Child Witness,

adopted by the SC and took effect on December 15, 2000.

SECURING APPEARANCE OF MATERIAL

WITNESS NATURE • Inherent power of every court to compel the

attendance of persons to testify in case pending before it

PROCEDURE [Rule 119, Sec. 14] • Upon motion of either party and upon proof of

oath. • If satisfied that a material witness will not

testify when required, the court may order the witness to post bail in such sum as may be deemed proper. • Failure to grant the motion of the

prosecution to arrest a material witness or hold him for contempt has been held to amount to GAD.

• Upon refusal, the court shall commit him to prison until either: 1) He complies;

• Note: Rule 23, Sec. 9 applies only in civil cases: “a witness is not bound to attend xxx outside the province where



he resides, unless the distance be less than 50 km from his place of residence to the place of trial by the usual course of travel.”

2) He is legally discharged after his testimony has been taken;

X. ADMITTING OR DENYING

GUILTY (ARRAIGNMENT)

DEFINITIONDEFINITIONDEFINITIONDEFINITION • ARRAIGMENT – The stage where the accused

is formally informed of the charge against him by reading before him the information/complaint and asking him whether he pleads guilty or not guilty. [Rule 116, Sec. 1(a)]

• It is the stage where the issues are joined and without which the proceedings cannot advance further or, if held, will otherwise be void. [Borja v. Mendoza (1977)]

PURPOSE: PROCEDURAL DUE PROCESS MANDATE [Borja v. Mendoza (1977)] 1) To fix the identity of the accused; 2) To inform him of the charge and what penal

offense he has to face; 3) To obtain from the accused his answer or his

plea to the information; 4) To be convicted only on a showing that guilt is

proved beyond reasonable doubt with full opportunity to disprove the evidence against him.

PROCEDURE 4-FOLD DUTY OF THE TC BEFORE ARRAIGNMENT [Rule 116, Sec. 6] 1) Inform the accused that he has the right to

have his own counsel before being arraigned; 2) Ask WON he desires the aid of counsel; 3) If he so desires to procure services of counsel,

must grant him reasonable time to do so. 4) General rule: The court must assign a counsel

de officio to defend him. [Rule 119, Sec. 7] • Exception: The accused is allowed to

defend himself in person or has employed a counsel of his choice. • Exception to the exception: The

accused expressly and formally renounced such right.

NO ARRAIGNMENT IN ABSENTIA [Nolasco v. Enrile (1985)] • Presence of the accused is not only a personal

right but also a public duty, irrespective of the gravity of the offense and the rank of the court.

• No trial in absentia without first arraigning the accused; otherwise, judgment is null and void since (1) the issues are not joined and (2) the right to be informed of the nature and cause of accusation is violated.

ISSUES THAT MAY BE RAISED BEFORE PLEA 1) WON arrest was legal, with or without warrant:

Can either move to quash or recall warrant. Failure to question will amount to waiver.

2) WON accused was accorded the right to a PI: If none or incomplete, ask court for PI. [Romualdez v. Sandiganbayan (1995)]

3) WON information or complaint vaguely worded: File a BOP; otherwise, the defects are deemed to have been waived. [Rule 116, Sec. 10]

4) WON complaint/information is “quashable”: File a MTQ; otherwise, grounds are deemed waived. [Rule 117]

PROCEDURE [Rule 116, Sec. 1] 1) Where:

• In open court, by the judge or clerk.



• The court where the complaint/information was filed or assigned for trial.

2) How: • By furnishing the accused with a copy of

the complaint/information. • By reading the same in the

language/dialect known to him – This is a new requirement that implements the constitutional right of an appellant to be informed of the nature and cause of the accusation against him [People v. Alicando (1995)]

• By asking him whether he pleads guilty or not guilty.

• The prosecution may call at the trial witnesses other than those named in the complaint/information.

TYPES OF PLEA • Plea of not guilty entered for the accused when

he either: [Rule 116, Sec. 1(c)] 1) Refuses to plead; 2) Makes a conditional plea of guilty. 1. ADMISSION – “GUILTY”

PLEA OF GUILTY TO A NON-CAPITAL OFFENSE • The court may receive evidence from the

parties to determine the penalty to be imposed. [Rule 116, Sec. 4]

• It is sufficient to sustain a conviction when formally and knowingly and voluntarily entered into. [People v. Acosta (1956)]

• General rule: It is a judicial confession of guilt so there is no need for additional evidence. [People v. Flores (2000)] • Exception:

1) If the information did not allege all the elements of the crime charged. [People v. Digero (1966)]

2) If the information charges a capital offense. [Rule 116, Sec. 5]

3) If the plea of guilt was conditional. [Rule 116, Sec. 1(c)]

• Accused must be acquitted when evidence allowed to be presented to determine penalty shows that he is not guilty.

PLEA OF GUILTY TO A CAPITAL OFFENSE [Rule 116, Sec. 5] • In this case, the procedure is mandatory.

Failure to observe the duties of the trial judge amounts to GAD. [People v. Devico (1997)]

• Rationale: To proceed with more care where the possible punishment is in its severest form; to avoid improvident pleas of guilt. [People v. Samontanez (2000)]

• Duties of the trial judge: 1) To conduct a searching inquiry into the

voluntariness and full comprehension of the consequences of the plea. • The plea must be clear, definite and

unconditional. There must be well-informed understanding and full realization of the consequences.

• It must be based on a free and informed judgment. Mere warning of facing the supreme penalty of death is insufficient. The judge must ask whether the accused was assisted by counsel during CI and PI; ask questions on age, educational attainment and

socio-economic status; and ask the defense counsel WON he conferred with the accused. [People v. Nadera (2000)]

2) To require prosecution to prove guilt and the precise degree of culpability.

3) To inquire whether accused wishes to present evidence on his behalf and allow him to do so if he desires. • Purpose: To preclude reasonable

doubt in the mind of the TC (or the SC on review) as to any misunderstanding of the charge, and to ascertain attendant circumstances which justify a greater or lesser degree of severity in the imposition of the prescribed penalty.

IMPROVIDENT PLEA OF GUILTY TO A CAPITAL OFFENSE • General rule: Case is remanded to the lower

court for further proceedings. • Exception: If the accused appears guilty

beyond reasonable doubt from evidence adduced by the prosecution and defense.

• It is a settled rule that where TC receives evidence to determine whether the accused has erred in admitting his guilt, the manner in which the plea is made loses legal significance since the conviction is based on the evidence proving the commission by the accused of the offense charged. [People v. Alborida (2001)]

2. DENIAL – “NOT GUILTY”

3. QUALIFIED ADMISSION – “GUILTY

BUT…”

a. PLEA OF GUILTY TO A LESSER

OFFENSE NECESSARILY

INCLUDED IN THE OFFENSE

CHARGED

PLEA BARGAINING [Rule 116, Sec. 2] • Definition: Process where the accused, the

offended party and the prosecution work out a mutually satisfactory disposition of the case, subject to court approval.

• Pleading guilty to a lesser offense or to only one/some of the counts of a multi-count indictment in return for a lighter sentence.

• May also include amending of information to allege more mitigating circumstances.

• A question that may arise: WON an accused may be allowed by the court, with the consent of the offended party and the prosecutor, to plead guilty to a lesser offense which is not included in the crime charged.

• Made during the pre-trial stage. • When plea is made without the consent of the

prosecutor and the offended party, the conviction shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former information.

WHEN PLEA IS MADE WITHOUT CONSENT OF THE OFFENDED PARTY [Rule 116, Sec. 10] • The offended party is required to appear during

the arraignment for purposes of plea bargaining, determination of civil liability and other matters requiring his presence.



• If he fails to appear notwithstanding notice, the court may, with conformity of the prosecutor, allow the accused to plead guilty to a lesser offense which is necessarily included in the offense charged.

WHEN PLEA IS MADE AFTER THE PROSECUTION HAS RESTED ITS CASE • The judge cannot on his own grant the change.

He may grant only with the approval of the prosecutor and the offended party and only when the prosecution does not have sufficient evidence to establish guilt.

b. PLEA OF GUILT, BUT ACCUSED

PRESENTS EXCULPATORY

EVIDENCE • The plea shall be deemed withdrawn and a plea

of not guilty shall be entered for him. [Rule 116, Sec. 1(d)]

IMPROVIDENT PLEA • Definition: Plea without proper information as

to all the circumstances affecting it; based upon a mistaken assumption or misleading information/advice. [Black’s Law Dictionary]

• It should not be accepted. If accepted, it should not be held to be sufficient to sustain a conviction. [People v. De Ocampo Gonzaga (1984)]

WHEN WITHDRAWAL OF PLEA IS ALLOWED [Rule 116, Sec. 2 and 5] • Substitution by plea of not guilty may be

permitted anytime before the judgment of conviction becomes final.

• The substitution is not a matter of a strict right. It is discretion justified by some compelling reason such has error, fraud, illegality or manifest injustice. [People v. Mendoza (1982)]

REASONS TO GRANT CHANGE • The accused is ignorant of the law and has had

no education and pleaded guilty without full knowledge of its consequences.

• The accused did not thoroughly understand the complaint.

• The accused was not advised as to the meaning and effect of the technical language.

PROCEDURAL AND SUBSTANTIAL REQUIREMENTS IN THE GRANT OF A CHANGE OF PLEA [People v. Mendoza (1982)] • Withdrawal need not be verified, but it should

have a rational basis. • Motion for change of plea should be set for

hearing. • Prosecution should be heard on the motion. • The court should state the reasons for setting

aside (or not setting aside) the judgment of conviction and for permitting (or not permitting) the accused to substitute a plea of not guilty for his plea of guilty.

SUSPENSION UPON MOTION BY THE SUSPENSION UPON MOTION BY THE SUSPENSION UPON MOTION BY THE SUSPENSION UPON MOTION BY THE

PROPER PARTYPROPER PARTYPROPER PARTYPROPER PARTY GROUNDS [Rule 116, Sec. 11] 1) Unsound mental condition of the accused at the

time of the arraignment.

• The court shall order his mental examination and, if necessary, his confinement.

• Degree of unsoundness of mind required: The accused can neither comprehend the full import of the charge nor can he give an intelligent plea.

• The need for suspension may be determined from physical and outward manifestations at the time of arraignment indicative of a mental disorder which the court had observed and defense counsel had called attention to. [People v. Alcalde (2002)]

• An insane person within the meaning of Art. 12, RPC must be deprived completely of reason or discernment and freedom of the will at the time of committing the crime. Mere abnormality of mental faculties does not exclude imputability. [People v. Catanyag (1933)]

• 3 major criteria to determine insanity: [People v. Dungo (1991)] a) DELUSION TEST – Insanity is

manifested by a false belief for which there is no reasonable basis and which would be incredible under the given circumstances.

b) IRRESISTIBLE IMPULSE TEST – The accused has lost the power to choose between right and wrong, to avoid the act in question, his free agency being at that time destroyed.

c) RIGHT AND WRONG TEST – A perverted condition of mental and mortal faculties as to render him incapable of distinguishing between right and wrong.

• Tests to determine insanity: [People v. Pascual (1993)] a) TEST OF COGNITION – Complete

deprivation of intelligence in committing the criminal act. It is the test adopted in this jurisdiction.

b) TEST OF VOLITION – A total deprivation of free will.

2) Prejudicial question exists. • Prescinds from the idea that it would be

determinative of guilt or innocence. • It may be raised during PI. If the

information is filed in court, it may be raised as ground to suspend the arraignment. [Rule 11, Sec. 5]

3) Pending petition for review of the resolution of the prosecutor with the DOJ or Office of the President. • The accused should file motion to suspend

and to secure a ruling on his petition for review within 60 days from the filing of the petition.

• Rationale: Need to observe judicial courtesy and to avoid legal complications in case the resolution would be different from the offense for which the accused was arraigned, especially if it would upgrade the offense.

XI. EXPEDITING TRIAL



PRE-TRIAL CONFERENCE COVERAGE [Rule 118, Sec. 1] • The court shall order pre-trial in all criminal

cases cognizable by the Sandiganbayan, RTC and MTC/MTCC/MCTC/MeTC.

PERIOD [Rule 118, Sec. 1] • General rule: After arraignment and within 30

days from the time the court acquires jurisdiction over the person of the accused. • Exception: If a shorter period is provided

by special laws or SC circulars. PURPOSES [Rule 118, Sec. 1] 1) Plea bargaining;

• Definition: Process whereby the accused and the prosecutor work out a mutually satisfactory disposition of the case subject to court approval.

• Procedure: If the prosecution and the accused agree to engage in plea bargaining upon being asked by the judge, the following are proposed: a) to make or not to oppose favorable

recommendations as to the sentence if the accused enters a plea of guilty to the offense charged;

b) the plea of guilty to a lesser offense; if the lesser offense is necessarily included in the offense charged, there is no need to amend the information, however, if it is not necessarily included, the information should be dismissed and a new one filed; [Rule 116, Sec. 2, ROC]

c) the presence of mitigating and absence of aggravating circumstances or if the imposable penalty be probationable; and

d) the dismissal of other charges against the accused if he enters a plea of guilty of the charge under consideration.

• Where evidence in the possession of the fiscal is weak to support the charge, it is permissible for him to accept an offer of an affirmative plea to a lesser offense.

• Recognition of the provision of RA 6425: Where the imposable penalty is reclusion perpetua to death, the accused shall not be allowed to avail of the provision on plea bargaining.

• See DOJ Circular No. 35 (June 31, 1990), as amended by Circular No. 55 for the guidelines on plea bargaining.

2) Stipulation of facts; • Simplify issues by stipulating or admitting

certain facts. • This is no longer prohibited in criminal

cases. [People v. Hernandez (1996)] • General rule: The acts of a lawyer in the

defense of a case are the acts of his client – it extends even to mistakes and negligence. [People v. Hernandez (1996)] • Exception: If such mistakes would

result in serious injustice to the client. 3) Marking for identification of the evidence of

parties; • Shapes up the testimonial and

documentary evidence.

• Proffer of exhibits is not allowed. It ought to be done at the time a party closes the presentation of evidence.

4) Waiver of objections to admissibility of evidence;

5) Modification of the order of trial if the accused admits the charge but interposes a lawful defense;

6) Other matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. Generally, to clear the desks for trial.

PRE-TRIAL AGREEMENTS AND

SUBMISSIONS [Rule 118, Sec. 2] • It must be reduced into writing and signed by

the accused and counsel. • Otherwise, it cannot be used against the

accused (i.e. inadmissible in evidence). • Purpose: [People v. Uy (2000)]

1) To safeguard the rights of the accused against improvident or unauthorized agreements or admissions which his counsel may have entered into without his knowledge.

2) To eliminate any doubt on the conformity of the accused to the facts agreed upon.

• Constitutional right to present evidence is waived expressly.

• That the lawyer of the accused confirmed the Stipulation of Facts does not cure the defect because both the accused and his counsel are required to sign. [Fule v. CA (1998)]

• General rule: Court approval is required. • Exception: Agreements not covering

matters referred to in Rule 118, Sec. 1. Pre-trial stipulations Judicial admissions

Entered into by parties Made by either party During pre-trial conference

In the course of the trial

Facts agreed on prior to the actual presentation of evidence or during trial proper

Need not be specially set out in a judicial order to bind the parties - admitted fact thus deemed established

More expedient - relieves court of burden of issuing a judicial order

PREPREPREPRE----TRIAL ORDER TRIAL ORDER TRIAL ORDER TRIAL ORDER [Rule 118, Sec. 4] WHEN • Issued by the court after the pre-trial

conference. • Judgment of acquittal based on pre-trial

despite disputed documents and issues of fact amounts to grave error and renders the judgment void. [People v. Santiago, (1989)]

CONTENTS 1) Actions taken; 2) Facts stipulated; 3) Evidence marked EFFECT



1) Binds the parties. • The accused must move to correct any

mistake or modify the pre-trial order; otherwise, will be deemed to have waived and be barred from questioning.

2) Limits the trial to matters not disposed of. 3) Generally, controls the course of action during

trial. • Exception: If modified by the court to

prevent manifest injustice.

NON-APPEARANCE [Rule 118, Sec. 3] • If counsel for the accused or the prosecutor:

1) Does not appear at the pre-trial conference; and

2) Does not offer an acceptable excuse, • The accused is not included because of the fear

that his constitutional right to remain silent may be violated.

• Effect: The court may impose proper sanctions/penalties: reprimand, fine or imprisonment.

• Purpose: To enforce the mandatory requirement of pre-trial in criminal cases. [Rule 118, Sec. 1]

XII. PRESENTING EVIDENCE

AGAINST AND FOR ACCUSED RIGHTS OF THE ACCUSEDRIGHTS OF THE ACCUSEDRIGHTS OF THE ACCUSEDRIGHTS OF THE ACCUSED • Note: See Rule 115 for the rights of the

accused. SUSPENSION OF ARRAIGNMENT [Rule 116, Sec. 11] • Upon motion by the proper party. • Grounds:

1) Accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. • The court shall order his mental

examination and, if necessary, his confinement.

2) Prejudicial question. 3) Pending petition for review of the resolution

of the prosecutor either at the DOJ or the Office of the President. • Provided: Period of suspension shall not

exceed 60 days counted from the filing of the petition with the reviewing office.

FACTORS FOR GRANTING CONTINUANCE UNDER RULE 119, SEC. 3[F] [Rule 119, Sec. 4] 1) WON the failure to grant would likely make a

continuation: a) Impossible; or b) Result in a miscarriage of justice.

2) WON the case taken as a whole is novel, unusual and complex due to: a) The number of accused; b) The nature of the prosecution; or c) It is unreasonable to expect adequate

preparation within the periods of time established.

3) There should be no continuance because of: a) Congestion of the court’s calendar; b) Lack of diligent preparation; c) Failure to obtain available witnesses on the

part of the prosecutor. [Sec. 10, Circular No. 38-98]

TIME LIMIT FOLLOWING AN ORDER FOR NEW TRIAL [Rule 119, Sec. 5] • General rule: Trial shall commence within 30

days from notice of the order. • Provided: The court may extend, but

extension shall not exceed 180 days, if the period becomes impractical due to unavailability of witnesses and other factors.

• For the 2nd 12-month period, time limit shall be 180 days from notice of the order for new trial. [Sec. 11, Circular No. 38-98]

EXTENDED TIME LIMIT OF PERIOD FROM ARRAIGNMENT TO TRIAL [Rule 119, Sec. 6] • General rule: Arraignment is to be held within

30 days from the date court acquires jurisdiction over the person of the accused. [Rule 116, Sec. 1(g)] • Exception: If a shorter period is provided

by special law or SC circular. • The accused shall have at least 15 days to

prepare for trial, after a plea of not guilty is



entered. [Rule 119, Sec. 1; Sec. 6, Circular No. 38-98]

• Trial shall commence within 30 days from receipt of pre-trial order. [Rule 119, Sec. 1; Sec. 6, Circular No. 38-98]

• For the 1st 12-calendar-month period following the effectivity of SC Circular No. 38-98 on September 15, 1998, the time limit shall be 180 days. [Sec. 7, Circular No. 38-98] • For the 2nd 12-mo nth period, 120 days. • For the 3rd 12-month period, 80 days.

• The law did not give the time limit after 80 days – arraignment can be thus be made any time after 80 days.

• See Rules 21, 23-25 and 27-29 vis-à-vis Rule 1, Sec. 3.

GENERAL PROCEDURE FOR TRIAL

1. NOTICE AND COMMENCEMENT TRIAL • Definition: Examination before a competent

tribunal of the facts put in issue in a case, for the purpose of determining such issue.

• As used in Constitution, it includes hearing, reception of evidence and other processes (i.e. decision in the first instance, appeal, and final and executory decision in last instance).

• In terms of procedure, it is limited to the proceedings in the TC after pleadings are finished and the case is ready, until rendition of judgment.

TIME TO PREPARE FOR TRIAL • The accused shall have at least 15 days, after a

plea of not guilty is entered[Rule 119, Sec. 1] • Purpose: To insure speedy trial. • notice to the parties required. The clerk

notifies parties of the date of arraignment, which should be 30 days from the date the court acquires jurisdiction over the person of the accused. Within the same 30 day period, the court shall set the pre-trial conference.

• When the accused pleads not guilty on arraignment, he has 15 days to prepare for trial (including pre-trial).

• Mandatory pre-trial is set, then the judge issues a pre-trial order.

• Trial shall commence within 30 days from receipt of pre-trial order. [Rule 119, Sec. 1; Sec. 6, Circular No. 38-98] • Proceedings are governed by Rule 119,

Sec. 2. • TC has 180 days from the 1st day of trial to

terminate the same. EXCLUSIONS • Periods of delay are excluded in computing the

time within which trial must commence. [Rule 119, Sec. 3] 1) Other proceedings concerning the accused,

including but not limited to: a) Examination of physical and mental

condition. b) Other criminal charges. c) Extraordinary remedies against

interlocutory orders. d) Pre-trial proceedings – delay must not

exceed 30 days.

e) Orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts. • Art. 8, Sec. 5(4), Consti expressly

empowers the SC to order a change of venue.

f) Existence of a prejudicial question. g) Proceeding concerning the accused is

actually under advisement – delay not to exceed 30 days.

2) Absence or unavailability of an essential witness. • “Absent” means that his whereabouts

are unknown or cannot be determined by due diligence.

• “Unavailable” means that his whereabouts are known but presence for trial cannot be obtained by due diligence.

3) Mental incompetence or physical inability to stand trial.

4) If information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, the period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge.

5) Reasonable period of delay when accused is joined for trial with a co-accused: a) Over whom the court has not acquired

jurisdiction; b) As to whom the time for trial has not

run and no motion for separate trial has been granted.

6) Continuance granted on the basis of findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial. [Sec. 9, Circular 38-98]

• By any court motu proprio, or on motion of either the accused or his counsel, or the prosecution. The motion should be based on any of the grounds specified in Rule 199, Sec. 3-4.

EFFECT OF DELAY [Rule 119, Sec. 9] • On motion of the accused, information may be

dismissed on the ground of denial of his right to speedy trial. • Subject to the rules on double jeopardy.

Hence, if with prejudice, the case cannot be revived anymore. Otherwise, revival of the case is proper.

• Failure to move for dismissal prior to trial is a waiver of the right to dismiss under this section.

• The accused has the burden of proving the ground for the motion.

• The prosecution has the burden of going forward with the evidence to establish the exclusion of time under Rule 119, Sec. 3.

Dismissal without

prejudice Dismissal with

prejudice

Allows new suit for the same cause of action

Adjudication on the merits, and final disposition, barring the right to bring or maintain an action on the same claim or cause

Imports contemplation of Is res judicata as to every



further proceedings, and when they appear in an order or decree, it shows that the judicial act is not intended to be res judicata of the merits

matter litigated

Terminates the case reserving, however, to the plaintiff the right to file a new complaint which, if filed, is entirely new and different from the case which was dismissed

WHEN INFORMATION IS NOT DISMISSED • General rule: If accused not brought to trial

within the prescribed period, he may move to dismiss the information. • Exception: If prosecution shows that delay

is by reason of any of the grounds specified in Rule 119, Sec. 3. Dismissal pursuant to Section 3 is subject to the rule on double jeopardy.

CONSTITUTINAL PROVISION ON SPEEDY TRIAL PREVAILS IN CASE OF CONFLICT [Rule 119, Sec. 10] • The following shall not be interpreted as a bar

to any charge of denial of the right to speedy trial guaranteed by Art. 3, Sec. 14(2), Consti: 1) Any provision of law on speedy trial; 2) Any rule implementing the same. 2. CONTINUOUS TRIAL RULE

• General rule: Trial, once commenced, shall

continue from day to day as far as practicable until terminated. [Rule 119, Sec. 2] • Exception: It may be postponed for a

reasonable period of time for good cause. • Granting or refusal of an application for

continuance or postponement lies within the sound discretion of the court. This discretion will not be interfered with by mandamus or by appeal, unless GAD is shown.

• It should not unduly force him to trial, nor jeopardize the rights and interest of the public.

• The court shall set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial after consultation with the prosecutor and defense counsel. [Rule 119, Sec. 2]

TIME LIMITATION • General rule: In no case shall the entire trial

period exceed 180 days from the 1st day of trial. [Rule 119, Sec. 2] • While failure of trial judge to observe this

does not result in loss of jurisdiction, it may subject him to disciplinary sanctions. Hence, he should just request the SC for additional trial dates to terminate the hearing.

• Exception: • When otherwise authorized by the SC;

[Sec. 8, Circular 38-98] • When special laws or circulars provide

for a shorter period of trial. [Rule 119, Sec. 2]

GUIDELINES IN THE CONDUCT OF MANDATORY CONTINUOUS TRIAL [SC Circular 1-89] 1) Not more than 3 cases scheduled for daily trial. 2) Presiding judge shall make arrangements so

that a relief prosecutor and CLAO attorney are always available in case the regular prosecutor and CLAO attorney are absent.

3) Contingency measures must be taken for any unexpected absence of the stenographer and other support staff.

4) Strict policy on postponements shall be observed.

5) The judge shall conduct the trial with utmost dispatch, with judicious exercise of the court’s power to control the trial to avoid delay.

6) Trial shall be terminated within 180 days from initial hearing and appropriate disciplinary sanctions may be imposed on the judge and the lawyers for failure to comply due to causes attributable to them.

7) Each party is bound to complete the presentation of evidence within the trial dates assigned. After the lapse of said dates, party is deemed to have completed his evidence presentation. • However, upon verified motion based on

serious reasons, the judge may allow additional trial dates in the afternoon, provided that said extension will not go beyond the time limit computed from the 1st trial date.

8) Copies of all judgments are furnished the OCA within 5 days from rendition.

TRIAL IN ABSENTIA • Requisites:

1) Accused has been arraigned; 2) He was duly notified of trial; 3) His failure to appear is unjustified.

• General rule: The right to be present at one’s trial may be waived. • Exception: At certain stages: [Lavides v.

CA (2000)] 1) Arraignment and plea 2) Promulgation of sentence 3) During trial whenever necessary for ID

purposes • Exception to the exception: If the

accused unqualifiedly admits in open court after arraignment that he is the person named as the defendant in the case on trial.

• Purpose: To speed up disposition of cases. ARCHIVING CRIMINAL CASE [SC Circular 7-A-82] • If the accused remains at large for 6 months

from delivery of the warrant to the proper peace officer.

• Judges who fail to comply may be held administratively liable.

3. POSTPONEMENTS, CONTINUANCE

FACTORS • If the court finds that the ends of justice served

by taking such action outweigh the best interest of the public and the accused in a speedy trial [Rule 119, Sec. 3(f)]

4. ORDER OF TRIAL

IMPORTANCE OF ADHERING TO ORDER



• Trial procedure as outlined ordinarily followed to ensure orderly conduct of litigations to protect substantive rights. • Deviation from the regular course should

always take into consideration the rights of all parties.

• To safeguard the right of the accused to be presumed innocent until the contrary is proved. • Deviation by the judge which denies the

accused of his day in court or the prosecution of due process renders the judgment invalid. [Alonte v. Savellano (1998)]

• The form of trial is a matter of public order and interest. [Alejandro v. Pepito (1980)]

WHEN COURT MAY MODIFY THE ORDER • If the accused admits the act/omission charged

in the complaint/information but interposes a lawful defense, the order of trial may be modified. [Rule 119, Sec. 11(e)]

• The court may allow the accused to present his defense first, and after give the prosecution the opportunity to present its rebuttal evidence.

• Strict observance depends upon the circumstances obtaining in each case at the discretion of the trial judge. • The primary consideration is WON the TC

still has jurisdiction over the case, as when such evidence is allowed before the TC renders its decision. [People v. Januario (1997)]

• If the accused objects to reverse procedure, court should follow the order of trial as provided for in ROC.

COLD NEUTRALITY OF THE IMPARTIAL JUDGE • He must not only be impartial, but must also

appear to be so. • He must remain silent or passive. • Although he may properly intervene in the

presentation of evidence to prevent unnecessary waste of time. [Cosep v. People (1998)]

• General rule: It is within the court’s prerogative and duty to ask clarificatory questions. • Exception: Questions to witnesses which

will have the effect of building the case for one of the parties amounts to undue interference. [People v. Gallerno (1998)]

a. PROSECUTION EVIDENCE

• The prosecution shall present evidence to prove: [Rule 119, Sec. 11(a)] 1) The charge; 2) In proper cases, also the civil liability.

PRESENTATION OF THE EVIDENCE-IN-CHIEF • The matter of presenting witnesses for the

prosecution is not for the accused or TC to control – discretion belongs to the prosecuting officer. [People v. Jamero (1997)] • Prosecution may call witnesses other than

those named in the complaint/information. • It is given the discretion as to WON to use

the offended party as a witness. • Their failure to present such number of

witnesses as stated in the information cannot be assigned as an error.

• The accused has the right to demand the list of prosecution witnesses.

• Evidence presented by one party may be utilized by the adverse party as evidence for his own cause of action.

WHEN PROSECUTION IS DENIED DUE PROCESS

• Capricious dismissal of information is void. • It will not constitute proper basis for the

claim of double jeopardy. [Saldana v. CA (1990)]

• It deprives the State of a fair opportunity to prosecute and convict.

b. DEMURRER TO EVIDENCE

• Definition: Objection by one of the parties to

the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. [Gutib v. CA (1999)]

• There is no material difference between the Motion to Quit of the accused before the TC and the demurrer to evidence • The only difference: If the MTD is ordered it

is tantamount to an acquittal, but the order of denial of the demurer to evidence is not reviewable by appeal or certiorari before judgment.

• Purpose: • It is adopted to prevent the filing of

demurrer based on frivolous and flimsy grounds.

• The new rule recognizes criminal cases in which presentation of defense evidence will only entail a waste of time.

• How initiated: [Rule 119, Sec. 23] 1) Court motu propio, after giving the

prosecution the opportunity to be heard; 2) Upon demurrer to evidence filed by the

accused: a) With leave of court; b) Without leave of court.

MOTION FOR LEAVE TO FILE DEMURRER [Rule 119, Sec. 23] • It must specifically state its grounds. • It must be filed within a non-extendible period

of 5 days after the prosecution rests. Prosecution may then oppose within a non-extendible period of 5 days from receipt.

• If leave of court granted, demurrer must be filed within a non-extendible period of 10 days from notice. Prosecution may oppose within a similar period from its receipt.

EFFECT OF GRANTING MOTION FOR LEAVE TO FILE DEMURRER • The court may dismiss the action on the ground

of insufficiency of evidence. [Rule 119, Sec. 23] • Sufficient evidence for frustrating a demurrer is

evidence that proves: [Gutib v. CA (1999)] • Commission; • Precise degree of participation. • E.g. Proof of the possession of recently

stolen goods taken together with proof of the commission of the theft, may be and generally will be sufficient to establish the guilt of the accused, if there is nothing in the record to raise a doubt as to the guilty character of the possession, though there is no presumption to that effect. [US v. Catimbang (1916)]

EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE DEMURRER



• Order denying the motion for leave or order denying the demurrer itself, is not reviewable by appeal or by certiorari before judgment. [Rule 119, Sec. 23]

• It is interlocutory, but it may be assigned as error and reviewed in the appeal that may be taken from the decision on the merits [Cruz v. People (1999)]

RIGHT OF THE ACCUSED TO PRESENT EVIDENCE AFTER DEMURRER IS DENIED [Rule 119, Sec. 23] Filed w/ leave of court Filed w/out

leave of court

May adduce evidence in his defense

Waives the right to present evidence

Purpose of obtaining leave of court: To determine WON demurrer was filed merely to stall the proceedings

Submits the case for judgment on the basis of the evidence for the prosecution

Implied leave of court is no longer sufficient and prevents accused from presenting evidence [e.g. accused files motion with reservation to present evidence in case motion is denied]

If there are 2 or more accused and only one presents a demurrer without leave of court: • General rule: The

court may defer resolution until decision is rendered on the other accused • Exception: If it

can be shown from the decision that the resolution on the demurrer was rendered not only on the basis of the prosecution’s evidence but also on the evidence adduced by his co-accused

c. DEFENSE EVIDENCE • The accused may present evidence to prove:

[Rule 119, Sec. 11(b)] 1) His defense; 2) Damages, if any, arising from the issuance

of a provisional remedy in the case. • That it rests with the accused to rebut the

inference of fact as to his guilt is not to compel him to give evidence against himself. It is merely to give him the opportunity to submit evidence after the prosecution has introduced evidence sufficient to sustain a conviction, unless rebutted or satisfactorily explained. [US v. Catimbang (1916)]

NEGLIGENCE OF DEFENSE COUNSEL • General rule: That the negligence of counsel

binds the client is based on the principle that any act performed by a lawyer within the scope of his authority is regarded as an act of the client. • Exception: Where reckless or gross

negligence deprives the client of due process of law, or when the application of the rule results in the outright deprivation of one’s property through a technicality. [Salonga v. CA (1997)]

WHEN PUBLICITY IS PREJUDICIAL TO THE RIGHTS OF THE ACCUSED [Larranaga v. CA (1998)]

• There must be allegation and proof that the judge has been unduly influenced, not simply that he might be.

• The right to a fair trial is not incompatible with a free press.

• The press guards against the miscarriage of justice by subjecting the process to extensive public scrutiny and criticism.

d. REBUTTAL EVIDENCE

• General rule: Prosecution and defense may, in

that order, present rebuttal and sur-rebuttal evidence. [Rule 119, Sec. 11(c)] • Exception: The court, in furtherance of

justice, may permit them to present additional evidence bearing upon the main issue.

REBUTTAL EVIDENCE • Definition: Any evidence to explain, repeal,

counteract or disprove the adversary’s proof. • Receivable only where new matters have

been developed by the evidence of one of the parties.

• Generally limited to a reply on new points. • It is permissible as long as the accused was not

taken by surprise and was not prevented from introducing evidence in sur-rebuttal.

SUR-REBUTTAL EVIDENCE • Definition: Proof to meet or refute those new

matters taken up by the adverse party during the rebuttal stage, or to clarify matters that were beclouded or made ambiguous.

e. SUBMISSION OF CASE

• General rule: case deemed submitted for

decision upon admission of evidence of the parties. [Rule 119, Sec. 11(d)] • Exception: If the court directs them to

argue orally or to submit written memoranda.

• Mere filing of motion to reopen must not automatically vacate a joint agreement and order submitting the case for decision. [Cruz v. People (1999)]

• The matter of reopening for reception of further evidence after either the prosecution or the defense has rested, is within the discretion of the court. [People v. Concepcion (1949)]

SUBMISSION OF ARGUMENTS – ORAL AND WRITTEN • It may not be claimed by the parties as a

matter of right. • As a matter of practice: Courts usually allow

parties to crystallize their respective positions through the submission of arguments or memoranda.

SPECIAL PROCEDURES

1. TRIAL OF SEVERAL ACCUSED

JOINTLY CHARGED

• General rule: They shall be tried jointly. [Rule 119, Sec. 16] • Exception: If the court orders separate

trial for one or more accused, upon motion of the prosecutor or any accused.



• The grant of a separate trial rests in the sound discretion of the court and is not a matter of right to the accused. [Talino v. Sandiganbayan (1987)]

• Purpose: To preclude wasteful expenditure of judicial resources. It is also in consonance with the right of the accused to a speedy trial.

• Accused are jointly charged if the charges are founded on the same facts or form part of a series of offenses of the same character. • E.g. Adulteress or her lover may move for

separate trials. Although it is required that the husband must include both in the complaint, the statute does not so require that they be tried together.

• General rule: Motion for separate trial must be raised before trial has commenced, before the prosecution commences presenting its evidence. [Talino v. Sandiganbayan (1987)] • Exception:

• In the interests of justice. • If there appears to be an antagonism in

the respective defenses of the accused. [Talino v. Sandiganbayan (1987)] • Evidence in chief of the prosecution

shall remain on record against all the accused, with right of rebuttal on the part of the fiscal in the separate trial of the other accused.

• General rule: If separate trial is granted, it is the duty of the prosecutor to repeat and produce all its evidence at each and every trial. • Exception:

1) It had been agreed by the parties that it would not have to be repeated at the 2nd/etc. trial;

2) All the accused were present during the presentation of evidence by the prosecution;

3) Their attorneys had the opportunity to cross-examine the witnesses.

• It is permissible to render only one decision on all cases despite their separate trials.

2. CONSOLIDATION OF TRIALS OF

RELATED OFFENSES

• Charges for offenses founded on the same facts or forming part of a series of offenses of similar character, may be tried jointly at the discretion of the court. [Rule 119, Sec. 22]

• Purpose: Attainment of justice with the least expense and vexation to the party litigants.

• General rule: Consolidation is addressed to the sound discretion of the court. • Exception: Joint hearing is a matter of

duty: 1) If 2 or more cases are tried before the

same judge; 2) Even filed with the different branches of

the same court, if one of such cases has not been partially tried.

• The several actions lose their separate identities and become a single action in which a single judgment is rendered.

• Limitations on consolidation: • The court cannot convict an accused of a

complex crime constitutive of the various crimes alleged in the consolidated cases

• It is reversible error where the court convicted an accused for 2 offenses in one of two cases in the absence of a consolidation and on the basis of evidence

adduced in one case, because the accused is entitled to a trial in each case. [US v. Tanjuatco (1993)]

3. DISCHARGE OF AN ACCUSED TO BE

A STATE WITNESS DISCHARGE OF CO-ACCUSED • General rule: It is the duty of the prosecutor

to include all the accused in the complaint/information. • Exception: Prosecutor may ask the court

to discharge one of them after complying with the conditions prescribed by law. [Rule 119, Sec. 17]

• This applies only when the information has already been filed in court.

REQUISITES [Rule 119, Sec. 17] 1) Two or more persons are jointly charged with

the commission of any offense. 2) Petition for discharge is filed before the defense

has offered its evidence. [People v. Aniňon (1988)]

3) Hearing in support of the discharge. • Prosecution to present evidence. • Sworn statement of each proposed state

witness. 4) The court is satisfied of the ff:

a) Absolute necessity for the testimony; • He alone has the knowledge of the

crime, and not when his testimony would simply corroborate or strengthen the evidence in the hands of the prosecution. [Flores v. Sandiganbayan (1983)]

• E.g. When there is a conspiracy and the crime is committed clandestinely, the discharge of a conspirator is necessary to testify against the other conspirator. [Chua v. CA (1996)]

b) There is no other direct evidence available for the proper prosecution of the offense, except the testimony;

c) The testimony can be substantially corroborated in its material points;

d) Accused does not appear to be the most guilty; • Gravity or nature of acts he committed

are compared to those of his co-accused.

• Not merely the fact that in law the same penalty is imposable on all.

e) Accused has not, at any time, been convicted of any offense involving moral turpitude

PROCEDURE [Rule 119, Sec. 17] 1) Motion of the prosecution before resting its

case. 2) Hearing in support of the discharge:

• Prosecution to present evidence. • Sworn statement of each proposed state

witness. 3) Court may either:

a) Direct one or more of the accused to be discharged with their consent so that they may be witnesses for the State. • Evidence adduced in support of the

discharge shall automatically form part of the trial.



• Question against the order to discharge must be raised in the TC; it cannot be raised on appeal.

b) Deny the motion for discharge; • The sworn statement of the accused

shall be inadmissible in evidence. CO-ACCUSED WHO CANNOT BE DISCHARGED UNDER RULE 119, SEC. 17 • If he was tried separately and has already

testified as witness without having been previously discharged.

WITNESS IMMUNITY FROM SUIT • Justification for the grant of immunity: The

need of the State to obtain the conviction of the more guilty criminals who will probably elude the long arm of the law.

Transactional immunity

Use and derivative use immunity

Can no longer be prosecuted for any offense arising out of the act

Only assured that testimony and evidence will not be used against him in a subsequent prosecution

OTHER MODES OF DISCHARGE OF THE ACCUSED TO BE A STATE WITNESS

1) Witness Protection Program. [RA 6981]

• RA 6981 vesting in the DOJ the power to determine who can qualify as a witness and who shall be granted immunity from prosecution is not unconstitutional. The power to choose who shall be a state witness is not an inherent judicial prerogative. Under Rule 119, the court is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. [Webb v. De Leon (1995)]

• Admission into the Program [Sec. 3, RA 6981] — Any person who has witnessed or has knowledge/information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body or any investigating authority, may be admitted into the Program. Provided, that: a) The offense in which his testimony will

be used is a grave felony as defined under the RPC or its equivalent under special laws;

b) His testimony can be substantially corroborated in its material points;

c) He or any member of his family within the 2nd civil degree of consanguinity/affinity is subjected to threats to his life or bodily injury or there is a likelihood that he will be killed/forced/intimidated/harassed/ corrupted to prevent him from testifying, or to testify falsely or evasively, because or on account of his testimony; and

d) He is not a law enforcement officer, even if he would be testifying against the other law enforcement officers. In such a case, only the immediate members of his family may avail themselves of the protection provided for under this Act. If the DOJ, after examination of said applicant and other

relevant facts, is convinced that the requirements of this Act and its IRR have been complied with, it shall admit said applicant to the Program, require said witness to execute a sworn statement detailing his knowledge/information on the commission of the crime, and thereafter issue the proper certification.

• Witness in legislative investigations [Sec. 4, RA 6981] — In case of legislative investigations in aid of legislation, a witness, with his express consent, may be admitted into the Program upon the recommendation of the legislative committee where his testimony is needed when in its judgment there is pressing necessity therefor: Provided, That such recommendation is approved by the President of the Senate or the Speaker of the House of Representatives, as the case may be.

• State witness [Sec. 10, RA 6981] — Any person who has participated in the commission of a crime and desires to be a witness for the State, can apply and, if qualified as determined in this Act and by the DOJ, shall be admitted into the Program whenever the following circumstances are present: a) The offense in which his testimony will be

used is a grave felony as defined under the RPC or its equivalent under special laws;

b) There is absolute necessity for his testimony;

c) There is no other direct evidence available for the proper prosecution of the offense committed;

d) His testimony can be substantially corroborated on its material points;

e) He does not appear to be most guilty; and f) He has not at any time been convicted of

any crime involving moral turpitude. • An accused discharged from an information

or criminal complaint by the court in order that he may be a State Witness pursuant to Rule 119, Sec. 9-10 may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused, so that he can be used as a State Witness under Rule 119.

• Effect of admission of a State Witness into the Program [Sec. 12, RA 6981] — The certification of admission into the Program by the DOJ shall be given full faith and credit by the provincial/city prosecutor who is required not to include the Witness in the criminal complaint or information and if included therein, to petition the court for his discharge in order that he can utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information.

Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense/s in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof.

• Compelled testimony [Sec. 14, RA 6981]— Any Witness admitted into the Program pursuant to Sections 3 and 10 of this Act cannot refuse to testify or give evidence or produce books/documents/records/writings necessary for the prosecution of the offense/s for which he has been admitted into the Program on the ground of the constitutional right against self-



incrimination, but he shall enjoy immunity from criminal prosecution and cannot be subjected to any penalty or forfeiture for any transaction/matter/thing concerning his compelled testimony or books/documents/records/writings produced.

In case of refusal of said Witness to testify or give evidence or produce books/documents/records/writings, on the ground of the right against self-incrimination, and the state prosecutor or investigator believes that such evidence is absolutely necessary for a successful prosecution of the offense/s charged or under investigation, he, with the prior approval of the DOJ, shall file a petition with the appropriate court for the issuance of an order requiring said Witness to testify, give evidence or produce the books/documents/records/writings described, and the court shall issue the proper order.

The court, upon motion of the state prosecutor or investigator, shall order the arrest and detention of the Witness in any jail contiguous to the place of trial/investigation until such time that the Witness is willing to give such testimony or produce such documentary evidence.

RA 6981 Rule 119, Sec. 17

Limited only to grave felony under the RPC or its equivalent under a special law

Applies to all felonies

Absolute necessity for testimony

It would suffice that there is no other direct evidence for the proper prosecution of the offense committed except the testimony of the accused

Witness is automatically entitled to certain rights and benefits

Witness must still apply for the employment of said rights

Any member of the family of the person applying for admission within the 2nd civil degree of consanguinity or affinity is subjected to threat to his life or injury, as to prevent him from testifying falsely or evasively

The same is not required

Witness applying is not a law enforcement officer

No limitation

Witness need not be charged elsewhere

Witness is charged in court as one of the accused

Immunity is granted by the DOJ

Immunity is granted by the court

2) The Ombudsman’s power to grant immunity.

[Sec. 17, RA 6770] • Ombudsman is given authority to grant

immunity to any person whose testimony is necessary to determine the truth.

• In all hearings/inquiries/proceedings of the Ombudsman, including PI, no person subpoenaed to testify as a witness shall be excused from attending and testifying or from producing books/papers/correspondence/memoranda/records on the ground that the testimony or evidence, documentary or otherwise, required of him, may tend to incriminate him or subject him to prosecution: Provided, That no person shall be prosecuted criminally for or on account of

any matter concerning which he is compelled, after having claimed the privilege against self-incrimination, to testify and produce evidence, documentary or otherwise.

Under such terms and conditions as it may determine taking into account the pertinent ROC provisions, the Ombudsman may grant immunity from criminal prosecution to any person whose possession and production of documents/evidence may be necessary to determine the truth in any hearing/inquiry/proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not except the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office.

Any refusal to appear or testify pursuant to the aforecited provisions shall be subject to punishment for prompt contempt and removal of the immunity from criminal prosecution.

3) Immunity under PD 749. • It grants immunity from prosecution to

givers of bribes and other gifts and to their accomplices in bribing public officials.

4) Immunity under Sec. 5, EO 14-A. • PCGG is authorized to grant immunity to

any person who provides information or testifies in any investigation conducted by it to establish the unlawful manner in which the property/ies were acquired or accumulated where such information/testimony is necessary to ascertain/prove guilt or civil liability.

• The immunity granted shall be continued to protect the witness who repeats such testimony before the Sandiganbayan when required to do so.

5) Immunity under Sec. 28, RA 6646. • The COMELEC may grant immunity from

prosecution to any acceptor of bribed money to vote for or against a candidate to be used as witness in the prosecution of election offense of vote-buying.

EFFECT OF DISCHARGE • General rule: The order of discharge shall:

[Rule 119, Sec. 18] 1) Amount to an acquittal of the discharged

accused; 2) Bar future prosecutions for the same

offense. • Exception: If the accused fails/refuses to

testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge.

• Any error in asking for and in granting the discharge cannot deprive the discharged of the acquittal and the constitutional guaranty against double jeopardy. [People v. Verceles (2002)]



• Subsequent amendment of the information does not affect discharge. [People v. Taruc (1962)]

4. RE-OPENING OF TRIAL

• At any time before finality of the judgment of

conviction, the judge may reopen the proceedings motu proprio or upon motion – with hearing in either case. [Rule119, Sec. 24] • The right of the prosecutor does not extend

to the filing of the MNT and also in the modification of the judgment - only the accused is allowed to do so.

• Ground: To avoid a miscarriage of justice. • An order re-opening the case to give the

prosecution opportunity to submit additional evidence without giving the accused the opportunity to rebut the evidence, is invalid. [Santiago v. Sandiganbayan (1999)]

• Proceedings shall be terminated within 30 days from the order granting it.

OTHER PROCEDURAL RULES

1. WHEN PROPER OFFENSE IS NOT

CHARGED WHEN APPLICABLE [Rule 119, Sec. 19] • If there is mistake in charging the proper

offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, and the mistake becomes manifest at any time before judgment.

PROCEDURE [Rule 119, Sec. 19] 1) The accused shall not be discharged if there

appears good cause to detain him. 2) The court shall:

a) Commit the accused to answer for the proper offense; and

b) Dismiss the original case upon the filing of the proper information.

� Rationale: The accused has a right to be

informed of the nature and the cause of the accusation against him.

� Purpose: It is primarily directed to the TC to invest it with authority to direct by itself dismissal and refiling, provided that the accused would not be placed in double jeopardy.

2. DUTIES OF COUNSELS AND

PROSECUTORS • The DOJ Public Attorney’s Office (PAO) has the

duty of assisting an accused who is not financially capable to have his own counsel. • Purpose: [Rule 119, Sec. 7]

1) To inform the detained accused of his right to trial;

2) Right of the PAO to have access to confer with him and prepare him for trial.

DUTY OF PAO KNOWING THAT THE ACCUSED HE IS ASSIGNED TO DEFEND IS DETAINED [Rule 119, Sec. 7; Sec. 12, Circular No. 38-98]

• Reasons for preventive detention of the accused: 1) Charge of a bailable offense but he has no

means to post bail; 2) Charged of a non-bailable offense; 3) Service of a term of imprisonment in any

penal institution. • PAO’s duty to perform the following:

1) Promptly undertake: a) To obtain the presence of the prisoner

for trial; b) To cause a notice to be served on the

person having custody of the prisoner, requiring such person to so advise the prisoner of his right to demand trial. • Upon receipt, the custodian shall

promptly advise the prisoner of the charge and of his right to demand trial.

• If at anytime the prisoner informs his custodian that he demands such trial, the latter shall cause notice to be sent promptly to the PAO.

2) Upon receipt of notice from the custodian, the PAO shall promptly seek to obtain the presence of the prisoner for trial.

3) When the custodian receives from the PAO a properly supported request, the prisoner shall be made available accordingly.

SANCTIONS ON COUNSELS [Rule 119, Sec. 8] • Sanctions may be imposed on the private

counsel for the accused, the PAO or the prosecutor

• Kinds of sanctions: 1) Criminal; 2) Administrative; 3) Contempt of court.

• Punishable acts/omissions: 1) Knowingly allowing the case to be set for

trial without disclosing that a necessary witness would be unavailable.

2) Filing a motion solely for delay which he knows is totally frivolous and without merit.

3) Making a statement for the purpose of obtaining continuance which he knows to be false and which is material to the granting of a continuance;

4) Willfully failing to proceed to trial without justification.

� Applicable sanctions: [Sec. 13, Circular 38-98] 1) On private defense counsel: Fine not

exceeding P20K; 2) On counsel de oficio, PAO or public

prosecutor: Fine not exceeding P5K; 3) Denial to any defense counsel or prosecutor

the right to practice before the court trying the case for a period not exceeding 30 days;

4) Any punishment is without prejudice to any appropriate criminal action or other sanctions authorized under the ROC.

• Purpose: 1) To speed up the trial and disposition of the

case; 2) To force counsels to go to court ready for

trial and not merely ready for postponement.

3. APPOINTMENT OF ACTING

PROSECUTOR



• An acting prosecutor is appointed when the prosecutor and his assistant/deputy are disqualified to act. [Rule 119, Sec. 20]

• Grounds for disqualification of a prosecutor: [Rule 137, Sec. 1] 1) He, or his wife/child, is pecuniarily

interested as heir/legatee/creditor or otherwise;

2) He is related to either party within the 6th degree of consanguinity or to counsel within the 4th degree, computed according to the rules of civil law.

3) He has been executor/administrator/guardian/ trustee or counsel;

4) He has presided in any inferior court when his ruling/decision is the subject of review, without the written consent of all the parties interest, signed by them and entered upon record.

5) For any other reason. [Rule 119, Sec. 20] PROCEDURE [Rule 119, Sec. 20] 1) The judge or the prosecutor shall communicate

with the DOJ Secretary. 2) The DOJ Secretary appoints an acting

prosecutor.

4. EXCLUSION OF THE PUBLIC FROM

THE COURTROOM • General rule: The accused has the right to a

public trial. • Exception: If the judge excludes public

from the trial. [Rule 119, Sec. 21]

Motu proprio On motion of the accused

Evidence to be produced during the trial is offensive to decency or public morals

Court may also exclude the public from the trial, except court personnel and counsels of parties

• A party to the action cannot be excluded

though he himself is a witness. • The public may be excluded when the offended

party in cases involving private crimes testifies.

5. INHIBITION OF JUDGES

6. DESISTANCE BY THE OFFENDED

PARTY

XIII. DECIDING GUILT OR NON-

GUILT (JUDGMENT)

• JUDGMENT – The adjudication by the court

that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. [Rule 120, Sec. 1] • Being aware of the provisions of the law,

the judge acted with GADALEJ in refusing to impose a penalty to which he disagrees. [People v. Veneracion (1995)]

Judgment Opinion Ratio

decidendi

Pronounces the disposition of the case

Informal expression of the views of the court

Provides for the basic reason for the judgment

Filed with clerk of court

Cannot prevail against its final order or decision

Forms no part of the judgment, though they may be combined in one instrument

ELEMENTS OF A JUDGMENT [Gonzalo Puyat and Sons v. Auditor General (1969)] 1) Controversy presented; 2) Authority to decide; 3) Decision. FORM OF A JUDGMENT [Rule 120, Sec. 1] 1) Written in official language.

• If given verbally, it is incomplete. It does not have an effect before it was actually reduced to writing and signed by the judge. [People v. Catolico (1972)]

• A verbal order dismissing the case can be rescinded without prejudicing the rights of the accused – No double jeopardy arises. [Abaya v. Garcia (1988)]

• The remedy for a verbal judgment is to appeal or file a petition for mandamus to compel the court to put the decision in writing.

2) Personally and directly prepared by the judge. • Every decision must state distinctly and

clearly the factual and legal basis therefore. [Art. 8, Sec. 6, Consti]

• Judges must nonetheless be allowed to synthesize and simplify their decisions considering the heavy load of trial judges for as long as there is compliance with minimum essence of factual and legal bases. • He may quote from narration of facts

by the OSG in his brief or memoranda of both parties and adopt the same as his own. [Hernandez v. CA (1993)]

• Common sense dictates that he be given complete liberty to express his opinion, unrestrained by any fear that a higher court might call down. [People v. Meneses (1998)]

3) Signed by the judge. • The judge who presided over the entire trial

would be in a better position to ascertain the truth or falsity of the testimonies.

• But the judge who only took over can render a valid decision by relying on TSN. It does not violate due process. [People v. Badon (1999)]

4) Contains clearly and distinctly a statement of facts proved and the law upon which judgment is based.



• There is sufficient compliance if the decision summarizes the evidence of both parties, synthesizes the findings and concisely narrates how the offense was committed.

• Failure on the part of the TC to make a finding of facts is a revocable error.

• There is no law that requires a specific finding of facts with respect to the evidence for the defense. [Reyes v. People (2006)]

GENERAL RULES ON JUDGMENTS

1. CONTENT OF JUDGMENT [Rule 120, Sec. 2]

a. JUDGMENT OF CONVICTION

• The judgment of conviction shall state:

1) The legal qualification of the offense constituted by the acts committed by the accused and the aggravating/mitigating circumstances which attended its commission. • If a decision does not contain a

dispositive portion but the last two paragraphs embody the court’s conclusions, then the decision is valid. [People v. Valeriano (1993)]

• TC should express not only its conclusion but also the provision of the law violated for the purpose of informing the accused of the nature of the crime and the law penalizing the same.

• No need to state the particular paragraph and article in the RPC, so long as the offense is clearly understood from the facts.

• Mere failure to specify the particular provision of law does not invalidate the decision, if it did actually apply the proper provision.

2) The participation of the accused in the offense, whether as principal, accomplice or accessory after the fact.

3) The penalty imposed upon the accused. • Penalty should not be imposed in the

alternative. There should be no doubt as to the offense committed and the penalty for it.

4) The civil liability or damages caused by his wrongful act/omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved/waived.

WHEN JUDGMENT OF CONVICTION BECOMES FINAL [Rule 120, Sec. 7] • Judgment becomes final:

1) After the lapse of the period for perfecting an appeal;

2) When the sentence has been partially/totally satisfied or served; or

3) The accused has expressly waived in writing his right to appeal or he applies for probation.

• Before the judgment becomes final, TC has plenary power to make, either on motion or motu propio, such amendment or alterations as it may deem best, within the frame of law, to promote the ends of justice.

• After finality, TC is divested of authority to amend/alter the judgment, except to correct clerical errors.

b. JUDGMENT OF ACQUITTAL

• The judgment shall state whether:

1) The evidence of the prosecution absolutely failed to prove the guilt of the accused; or

2) It merely failed to prove his guilt beyond reasonable doubt. • #2 does not extinguish the civil liability

arising from his acts, since the civil liability arose not from a crime but from the damage caused by such acts.

• In either case, the judgment shall determine if the act/omission from which the civil liability might arise did not exist.

• General rule: The court has authority to express disapproval of certain acts even if judgment is for acquittal. • Exception: The court is not permitted to

censure the accused in a judgment for acquittal – no matter how light, a censure is still a punishment.

• No court has the power to mete out punishment. A finding of guilt must precede the punishment.

• This reprehension, however, must be relevant to the issue in the case. If irrelevant/impertinent, they should be stricken out or expunged from the record like any other extraneous matters. [People v. Meneses (1998)]

• Acquittal extinguishes civil liability only when the judgment includes a declaration that the facts from which the civil liability might arise did not exist.

• The court may nonetheless hold the accused civilly liable in favor of the offended party, or it may deny the award of civil damages expressly or impliedly by being silent on the matter.

• The losing party may appeal the ruling on the civil liability, as in any other ordinary appeal, in his name and not in the name of the People

• A separate civil action may be warranted where: 1) Additional facts have to be established; 2) More evidence has to adduced; or 3) Where the criminal case has been fully

terminated and a separate complaint would be just as efficacious or even more expedient.

WHEN JUDGMENT OF ACQUITTAL BECOMES FINAL • It is immediately final and executor. • The State may not seek its review without

placing the accused in double jeopardy.

ACQUITTAL • Definition: A finding of not guilty based on the

merits, either: 1) The evidence does not show that his guilt is

beyond reasonable doubt; or 2) A dismissal of the case after the

prosecution has rested its case and upon motion of the accused on the ground that the evidence fails to show beyond doubt that accused is guilty.

• The judge may find that the acts — although unethical, immoral or otherwise reprehensible — do not constitute a crime within the purview of the penal law. [People v. Meneses (1998)]



• The court has no power to order reinstatement and backwages at the time of suspension of accused from work. [PNRC v. Domingo (1971)]

• Acquittal based on reasonable ground does not bar a separate civil action based on quasi-delict. [Lontoc v. MD Transit (1988)]

Acquittal [Rule 120]

Dismissal [Rule 117]

Terminates the case Decision on the merits based on a finding that the accused is not guilty

Not on the merits and no finding of guilt is made

2. JUDGMENT ON DUPLICITOUS

INFORMATION • General rule: Complaint/information must

charge only one offense. • Exception: Cases in which existing laws

prescribe a single punishment for various offenses.

• General rule: Duplicitous information is subject to a MTQ. • Exception: Defect is waived when accused

fails to move for quashal. WHERE ACCUSED FAILS TO OBJECT TO 2 OR MORE OFFENSES CHARGED IN A SINGLE COMPLAINT/INFORMATION BEFORE TRIAL [Rule 120, Sec. 3] 1) The court may convict him of as many offenses

as are charged and proved; and • Exception: One of the offenses has been a

necessary means for committing the other offense and where both have been the result of a single act.

2) Impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense. • Maximum duration of offense: Follow the 3-

fold rule on the service of penalty.

3. VARIANCE BETWEEN WHAT WAS

CHARGED AND WHAT WAS PROVEN

• General rule: The defendant can be convicted only of the crime with which he is charged. • Rationale: He has the right to be informed

of the nature of the offense with which he is charged before he is put on trial. [People v. Guevarra]

• However, minor variance between the information and the evidence • Does not alter the nature of the

offense; • Does not determine or qualify the crime

or penalty; • Cannot be ground for acquittal.

• Exception: He can be convicted of an offense proved provided it is included in the charge, or of an offense charged which is included in that which is proved. [Rule 120, Sec. 4] • The accused can be convicted of an

offense only when it is both charged and proven.

• The mere fact that the evidence presented would indicate that a lesser offense outside the court’s jurisdiction was committed does not deprive the court of its jurisdiction, which had

vested in it under the allegations in the information.

• Exception to the exception: Where there are facts that supervened after the filing of the information which change the nature of the offense.

WHEN THE OFFENSE AS CHARGED IS INCLUDED IN OR NECESSARILY INCLUDES THE OFFENSE PROVED [Rule 120, Sec. 5] • The offense charged necessarily includes the

offense proved when some of the essential elements/ingredients of the former, as alleged in the complaint/information, constitute the latter.

• An offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter.

EFFECT OF THE VARIANCE • The accused shall be convicted of: [Rule 120,

Sec. 4] 1) The offense proved which is included in the

offense charged; or 2) The offense charged which is included in

the offense proved • The right to be informed of the charges has not

been violated because where an accused is charged with a specific crime, he is duly informed also of lesser crimes/offenses included therein. [People v. Villamar (1998)]

• Where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the accused can be convicted of the other. • The accused should move to quash on the

ground of duplicity to prevent him from being convicted of as many component offenses as may be proved.

STATE LIABILITY FOR UNJUST CONVICTION • The DOJ Board of Claims is authorized to

receive/evaluate/process/investigate claims of victims of unjust imprisonment/detention and victims of violent crimes. [RA 7309]

• Requirements for compensation: 1) Unjust accusation; 2) Unjust conviction; and

• It is the same as knowingly rendering an unjust judgment - It is contrary to law or is not supported by the evidence and the same is made with conscious and deliberate intent to do an injustice. [Art. 204, RPC]

3) Unjust imprisonment.

4. EVIDENCE REQUIRED

• PROOF BEYOND REASONABLE DOUBT –

Degree of proof which produces conviction in an unprejudiced mind. [People v. Bacalzo (1991)]

• REASONABLE DOUBT – Doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest upon the certainty of guilt.

• Rationale: It is always better to err in acquitting than in punishing. [People v. Lizada (1993)]

5. EFFECT ON EXISTING PROVISIONS



• Nothing in Rule 120 shall affect any existing provisions in the laws governing the following: [Rule 120, Sec. 9] 1) Suspension of sentence. 2) Probation. 3) Parole.

PROMULGATION OF JUDGMENTPROMULGATION OF JUDGMENTPROMULGATION OF JUDGMENTPROMULGATION OF JUDGMENT • Definition: An official proclamation/

announcement of a judgment/order. • Judgment/sentence does not become a

judgment/sentence in law until: 1) Read and announced to the defendant; or 2) Has become a part of the record of the

court. • Judgment which the rule requires to be

promulgated is the sentence rendered by the TC, not the judgment of the appellate court sent to the TC. • Unnecessary for the latter because it is

presumed that the accused or his attorney had already been notified by the appellate court.

• Where there is no promulgation of judgment, no right to appeal accrues.

• SIN PERJUICO JUDGMENT – Judgment without a statement of facts. [Dizon v. Lopez (1997)] • Merely reading the dispositive portion of

the decision is not sufficient. • Judgment must state the facts and the law

on which it is based. • While SC has expressed approval of the

practice of some judges withholding the dispositive portion from their opinions until the very last moment of promulgation in order to prevent leakage, such refers to the preparation of the decision and not to promulgation. There is no more reason to keep it a secret at the stage of promulgation.

MANNER OF PROMULGATION [Rule 120, Sec. 6] • General rule: Proper clerk of court shall give

notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation.

• Exception: Notice to him shall be served at his last known address if he was tried in absentia because he jumped bail or escaped from prison.

• General rule: By reading it in the presence of the accused and any judge of the court in which it was rendered. • Old rule: Presence of the accused is needed

only in cases of conviction. • Presence of the accused is now mandatory;

otherwise sentence will be reversed, without disturbing the verdict, and the case will be remanded with instruction that the TC pronounce in accordance with the legal requirements.

• Absence of counsel is not a reversible error, there being no substantial right of the defendant on the merits which was prejudiced.

• Exception: 1) If the conviction is for a light offense,

the judgment may be pronounced in the presence of his counsel/representative.

2) If the accused fails to appear despite notice, the promulgation shall be made

by recording the judgment in the criminal docket and serving him a copy at his last known address or thru his counsel.

FAILURE TO APPEAR DESPITE NOTICE [Rule 120, Sec. 6] • General rule: Presence of the accused is

mandatory. • Exception:

Conviction for light offense

He may appear through counsel/representative

Promulgation in absentia

To prevent subversion of judicial process and enable enforcement of civil liability

Verdict of acquittal No appeal necessary; judgment is final and executory - Note the old rule that presence of the accused during promulgation of judgment is required only in case of conviction

• If the judgment is for conviction and the failure

of the accused to appear was without justifiable cause, he shall lose the remedies available in the ROC against the judgment and the court shall order his arrest. • However, within 15 days from promulgation

of judgment, he can surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence.

If he proves his absence was for a justifiable cause, shall be allowed to avail of the remedies within 15 days from notice.

WHO PROMULGATES JUDGMENTS [Rule 120, Sec. 6] 1) If the judge is absent or outside the

province/city – Judgment may be promulgated by the clerk of court.

2) If promulgation is after the judge ceased holding office: [Jimenez v. Republic (1968)] a) If temporary absence – By any incumbent

judge of the court in which the decision was rendered.

b) If permanent absence – The incumbent judge succeeding him should not promulgate the decision with the decision still under the signature of the previous judge. The duty of the successor judge is to disregard the decision altogether and write out a new one under his own signature, based on the records of the case

3) If the accused is confined/detained in another province/city – It may be promulgated by the executive judge of the RTC having jurisdiction over the place of confinement/detention, upon request of the court which rendered the judgment.

APPEAL FROM THE JUDGMENT • General rule: The court promulgating the

judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal. • Exception: If the decision convicting the

accused changed the nature of the offense from non-bailable to bailable, the



application for bail can only be filed and resolved by the appellate court.

MODIFICATION OF JUDGMENT WHEN JUDGMENT OF CONVICTION MAY BE MODIFIED OR SET ASIDE 1) Upon motion of the accused: [Rule 120, Sec. 7]

a) Before it becomes final. b) Before appeal is perfected.

2) The court motu propio and without notice to either party, on the basis of the evidence in the records, so long as the judgment has not become final, as it still has the jurisdiction over the case.

WHEN JUDGMENT BECOMES FINAL 1) For conviction:

• General rule: Judgment of conviction becomes final: [Rule 120, Sec. 7] a) After the lapse of the period for

perfecting an appeal. b) When the sentence has been

partially/totally satisfied or served. c) When the accused has waived in

writing his right to appeal. [Wagan v. Tiangco (1976)]

d) When the accused has applied for probation.

• Note: Cases where death penalty was imposed, was an exception.

• Judgment of conviction does not become final after the promulgation and by the court’s issuing a commitment order

2) For acquittal: It becomes final from the date of its promulgation. • It can no longer be modified. • MFR or appeal can no longer be filed, as it

will place the accused twice in jeopardy. • The court’s power to modify its judgment is

limited to a judgment of conviction, and it cannot include a judgment of acquittal.

EFFECT OF FINALITY • General rule: A judgment which has become

final and executory can no longer be amended or corrected. [Icao v. Apalisok (1989)] • Exception: Only as regards clerical errors. • Even the subsequent discovery of an

erroneous imposition of a penalty will not justify correction of the judgment after it has become final.

EFFECT OF APPEAL • While it does not vacate the judgment appealed from, it does prevent such judgment from becoming final.

• Until withdrawn, there is no decision of the TC to serve/satisfy because the appeal stayed the decision. [Teodero v. CA (1996)]

• The appellate court may act on the appeal and impose such penalty as may be warranted by the law and the evidence.

ENTRY OF JUDGMENTENTRY OF JUDGMENTENTRY OF JUDGMENTENTRY OF JUDGMENT

• After judgment has become final, it shall be

entered in accordance with Rule 36. [Rule 120, Sec. 8]

WHEN ENTRY IS MADE [Rule 36, Sec. 2] • When there is no appeal or MNT/MFR is filed

within the time provided in the ROC.

HOW ENTRY IS MADE [Rule 36, Sec. 2] • The judgment or final order shall be entered by

the clerk in the book of entries of judgments. • The date of finality of the judgment or final

order shall be deemed to be the date of its entry.

FORMALITIES REQUIRED [Rule 36, Sec. 2] • The record shall contain the dispositive part of

the judgment or final order. • It shall be signed by the clerk, with a

certificate that such judgment or final order has become final and executory.

XIV. SEEKING RELIEF FROM AN

ADVERSE JUDGMENT



A. MOTION FOR

RECONSIDERATION OR

NEW TRIAL (MFR/MNT) DEFINITION • New trial and reconsideration are the same

thing in criminal procedure whether it be a first, second, new or an old trial. “New” refers to time and not to substance. [US v. Dacir (1913)]

• NEW TRIAL – A proceeding whereby errors of law or irregularities are expunged from the record, or new evidence is introduced, or both steps are taken. [People v. Tamayo (2002)]

• Purpose: A new invention to temper severity of a judgment or prevent the failure of justice. [Jose v. CA (1997)]

• The word “trial” as used covers not only trial proper but also includes the rendition of judgment. [People v. Enriquez]

New trial Reopening of the case

Award given after judgment on the case was already rendered

Is had prior to the rendition of judgment but after the parties have submitted the case for decision

WHEN TO FILE MNT/MFR 1) At any time before a judgment of conviction

becomes final; [Rule 121, Sec. 1] • After sentence has become final, any

attempt to alter/amend/modify the same, except to correct clerical errors, is unwarranted in law. [US v. CFI Manila]

2) Before an appeal is perfected. WHO MAY INITIATE MNT/MFR [Rule 121, Sec. 1] 1) On motion of the accused; 2) By the court motu propio, but with the consent

of the accused. • The consent may be given tacitly (e.g.

he interposed no objection to the new trial of the case).

GRANTING OF MOTION • Motion may be filed with the appellate court

when during the pendency of the appeal new and material evidence have been discovered.

• Grant rests upon the discretion of the court. • Unless there is a clear showing of GAD, the

judgment of the court on the matter shall not be disturbed. [Republic v. Vda. De Castelvi (1974)]

• The correctness/validity/legality of a new trial in a criminal case do not depend upon the consent of the parties but upon the grant being made conformably to the prescription of the ROC and the applicable jurisprudence. [Luciano v. Estrella (1970)]

• If filed on the basis of minor/trivial conflicts, motion will be denied.

• What would constitute meritorious circumstances is left to the sound discretion of the court on a case to case basis. [Jose v. CA (1997)]

EFFECT ON PERIOD TO APPEAL • General rule: The period at the end of which

the judgment in a criminal case becomes final is not suspended. • Exception: by the filing of a MNT/MFR.

GROUNDS FOR MNT [Rule 121, Sec. 2] 1) That errors of law or irregularities prejudicial to

the substantial rights of the accused have been committed during the trial; • General rule: Error of the defense counsel

in the conduct of the trial is neither an error of law nor an irregularity. • Exception: Acquittal would in all

probability have followed the introduction of certain testimony which was not submitted at the trial under improper or injudicious advice of incompetent counsel.

• Irregularities must be with such seriousness as to affect prejudicially the substantial rights of the accused.

2) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. • NEWLY DISCOVERED EVIDENCE –

Evidence which could not, by the exercise of due diligence, have been discovered before the trial in the court below.

• Requisites: That the evidence - [Jose v. CA (1997)] a) Was discovered after the trial; b) Could not have been discovered and

produced at the trial even with the exercise of reasonable diligence. [US v. Pico (1982)] • Burden of proving this is on the

accused. [US v. Torrente (1922)] c) Is material, not merely

cumulative/corroborative/impeaching; and

d) Is of such weight that it would probably change the judgment if admitted. • It must be of weighty influence and

will affect the result of the trial. [People v. Alfaro (2003)]

THE ONLY GROUND FOR MFR • Errors of law or fact in the judgment, which

requires no further proceedings. [Rule 121, Sec. 3]

• Rationale: To afford the TC the opportunity to correct its own mistakes and to avoid unnecessary appeals.

FORM OF MOTION [Rule 121, Sec. 4] 1) It must be in writing. 2) It shall state the grounds on which it is based.

• If based on newly-discovered evidence the motion must be supported by: a) Affidavits of witnesses by whom such

evidence is expected to be given; or b) By duly authenticated copies of

documents which are proposed to be introduced in evidence.

3) Notice of the motion shall be given to the prosecutor. • Private prosecutor need not be served with

the motion. 4) Filing of the motion must be made within 15

days from date of promulgation of judgment, the 15-day period being non-extendable.

HEARING ON MOTION • The court may hear evidence by affidavits or

otherwise when the motion calls for resolution of any question of fact. [Rule 121, Sec. 5]



• Purpose: merely to determine WON the new trial requested should be granted.

EFFECT OF GRANTING MNT/MFR [Rule 121, Sec. 6] • In all cases:

1) The original judgment set aside or vacated; 2) A new judgment is rendered accordingly;

and 3) Parties are left in the same situation as if

no trial had ever taken place. • Specific effects:

Ground Effect Court may

Errors of law or irregularities committed during the trial

All proceedings and evidence affected shall be set aside and taken anew If error or irregularity goes into the jurisdiction, entire proceeding is void and must be set aside

Allow introduction of additional evidence in the interest of justice

Newly-discovered evidence

Evidence already adduced shall stand and the newly-discovered and such other evidence shall be taken and considered together with the evidence already in the record

Allow introduction of other such evidence in the interest of justice

• Remedy against GAD in granting MNT/MFR:

Certiorari or prohibition. • Otherwise, prosecution may no longer have

opportunity to question the order if accused is acquitted after new trial is conducted (because there will be double jeopardy). [Luciano v. Estrella (1970)]

B. ORDINARY APPEAL WHO MAY APPEAL [Rule 122, Sec. 1] • General rule: Any party may appeal from a

judgment or final order. • Exception: A party cannot appeal when

the accused will be placed in double jeopardy.

• “Party” includes not only the government or the accused. It also includes the private offended party. [People v. Madali (2001)]

• Usually, the participation of the private offended party is a mere surplusage. (e.g. when the State will simply seek the affirmation of conviction).

• However, where the State takes a contrary position and recommends the acquittal of the accused, then the private offended party shall be allowed to participate separately.

WHEN APPEAL BY THE PEOPLE WILL NOT LIE • The People/State cannot appeal when it will put

the accused in double jeopardy.

• The constitutional mandate against double jeopardy prohibits not only a subsequent prosecution in a new and independent cause but extends also to appeal in the same case by the prosecution after jeopardy had attached. [Republic v. CA]

• The prosecution cannot appeal from a judgment of acquittal • Rationale: A verdict of that nature is

immediately final and to try on the merits, even in an appellate court, places the accused in double jeopardy. [Central Bank v. CA (1989)]

• Dismissal of case upon filing of demurrer by the accused was held to be final even though based on erroneous interpretation of the law. Hence, an appeal therefrom by the prosecution would constitute double jeopardy. [US v. Kilayko (1916)]

• Where the TC has jurisdiction but mistakenly dismisses the complaint/information on the ground of lack of it, the order of dismissal is unappealable. [People v. Duran]

• An appeal by the People will not lie if the purpose is to correct the penalty imposed by the trial court or to include in a judgment a penalty erroneously omitted. [People v. Paet (1956)]

• The preclusion against appeal by the State from judgments or final orders having the effect of acquittal, applies even though accused did not raise question of jeopardy. [People v. Ferrer (1956)]

WHEN APPEAL BY THE PEOPLE IS PERMISSIBLE • Generally, where the defendant would not be

placed in jeopardy a 2nd time for the same offense.

• Where the information was quashed prior to arraignment, the prosecution may appeal the order sustaining the MTQ because before a plea is entered, no jeopardy attaches. [People v Pascual (1957)]

• Dismissal of case provisionally with the consent of the accused is an error on the part of the TC. Such dismissal is appealable without violating right of accused against double jeopardy. [People v. Quimsing (1964)]

• The People may appeal when it has been deprived of due process in the lower court. • Rationale: A decision in a proceeding that

did not follow due process is a patent nullity and cannot be a basis for the claim of former jeopardy. [People v. Balisacan (1966)]

APPEAL WITH RESPECT TO CIVIL LIABILITY • When such appeal is allowed – Where the TC

found the accused guilty but erroneously failed to enter judgment as to the civil liability of the accused, the fiscal may appeal the judgment for that purpose. [People v. Ursua (1934)]

• When such appeal is not allowed – • If the offense carries no civil liability, or if

the offended party has waived his right thereto or has reserved the right to institute a separate civil action, the aggrieved party cannot appeal from the judgment of the TC. [People v. Olavides (1948)]

• Where the criminal case was dismissed at the instance of or with the consent of the fiscal, the offended party cannot appeal from the order of dismissal, since the



dismissal of the criminal action “does not affect the right of the offended party to institute or continue the civil action already instituted arising from the offense because such dismissal or extinction of the penal action does not carry with it the extinction of the civil one.” [People v. Velez]

• If the judgment of conviction was appealed by the accused, the appellate tribunal is competent to assess damage/indemnity against the defendant, although the decision of the TC made no award of such nature. This is because an appeal in a criminal case opens the whole case for review. [Quemel v. CA (1946)]

• The appellate court may increase the penalty, the indemnity/damages awarded by the TC, although the offended party did not appeal and only the accused did. [Quemel v. CA (1946)]

APPEAL BY A PERSON PREJUDICED BY THE JUDGEMENT • General rule: Only the parties to a case may

appeal a judgment thereon. [Rule 122, Sec. 2] • Exception: A person, other than a real

party to a case, who stands to be adversely affected by the judgment in a direct or significant way.

APPEAL WHEN PROMULGATION OF JUDGEMENT WAS MADE IN ABSENTIA • General rule: Where the accused is tried in

absentia and the decision was also promulgated in his absence, the accused should not be afforded the right to appeal [People v. Magpalao (1991)] • Exception: When he voluntarily submits to

the jurisdiction of the court or is otherwise arrested within 15 days from the notice of the judgment against him.

• Rationale: While at large, he cannot seek relief from the judgment as he is considered to have waived the same and he has no standing in court.

• Other instances when appeal will not be entertained: If the accused, during the pendency of his appeal, escapes from prison or confinement, or jumps bail, or flees to a foreign country, his appeal shall be dismissed and his right to appeal shall be considered abandoned. [People v. Ramos (1993)]

WHERE TO APPEAL [Rule 122, Sec. 2]

Appeal in For cases decided by

The RTC MTC/MeTC/MCTC

The Sandiganbayan RTC or MTC/MeTC/MCTC (if it is government duty-related - i.e. filed under EO 1, 2, 4 and 14-A)

The CA RTC (if it involves questions of fact and of law)

The SC RTC

a) If it involves questions of law only

b) If it involves constitutionality or validity of any treaty/law/ordinance/EO/

regulation or the jurisdiction of the inferior court

c) In criminal cases involving offenses for which the penalty imposed is death or life imprisonment

d) Other offenses, which, although not so punished, arose out of the same occurence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense

The SC CA or Sandiganbayan

NATURE OF AN APPEAL • APPEAL – A proceeding for review by which

the whole case is transferred to a higher court for a final determination.

• An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the appellate court to correct an error as may be found in the appealed judgment, WON it is made the subject of assignment of errors. [People v. Calayca (1999)]

• The right to appeal is neither a natural right nor a part of due process. It is merely a statutory privilege, and may be exercised only in the manner provided by law. [Bello v. Fernando (1962)]

• Remedy if appeal is denied: Mandamus, but only when the party appealing is entitled to it. [Trinidad v. Sweeney (1904)]

FINAL JUDGEMENT OR ORDER • An appeal may be taken only from a final

judgment or order, not from interlocutory orders.

• FINAL JUDGMENT — Judgment which would become final if no appeal is taken. • It does not mean a judgment which has

already become final, otherwise no appeal is allowed anymore.

• FINAL ORDER — One which disposes of the whole subject matter or terminates a particular proceeding/action, leaving nothing to be done but to enforce by execution what has been determined.

• General rule: An order overruling the motion is interlocutory; hence, not appealable. [Fuster v. Johnson] • Exception: When the motion is based

upon LOJ or the ground that the information fails to allege facts constituting a public offense, it is not interlocutory. [Lopez v. Alikpala]

• An order sustaining a MTQ is a final order; hence, immediately appealable.

APPELATE JURISDICTION OF THE CA • CA is vested with the power to try cases and

conduct hearings, receive evidence, and perform any and all acts necessary to resolve factual issues in cases falling within its original and appellate jurisdiction. [BP 129]

• The CA also has appellate jurisdiction in cases where the RTC imposed penalty of reclusion perpetua, life imprisonment, or where a lesser



penalty is imposed for offenses committed in the same occasion or which arose of the same occurrence that gave rise to the more serious offense for which the penalty for death, reclusion perpetua, or life imprisonment is imposed. [BP 129]

APPEAL VIS-À-VIS CERTIORARI • ERROR OF JUDGMENT – One which the court

may commit in the exercise of its jurisdiction. • Reviewable on appeal (i.e. ordinary appeal

under Rule 122). • ERROR OF JURISDICTION – LOJ. It renders

an order of judgment void or voidable. • Reviewable on certiorari.

• General rule: When appeal available for errors of judgment, certiorari is not allowed. • Exception: Cases where the SC allowed

certiorari despite availability of appeal: • A writ of certiorari was granted against

the TC’s ruling rejecting rebuttal evidence for the prosecution because appeal is no longer available when accused was acquitted. [People v. Abalos (1969)]

• Certiorari was granted when no appeal lies from an interlocutory order. [Sacdalan v. Bautista (1974)]

MODES OF REVIEW 1) Ordinary appeal – By filing a notice of appeal

with the court that rendered the judgment and serving a copy on the adverse party. • NOTICE OF APPEAL – Written notice of

intention to take appeal. • When no notice of appeal is given in writing

or no record that any was given, the cause will be stricken from the court calendar since there was no appeal. [US v. Tenorio]

• A mere verbal notice of an intention to appeal expressed by the accused, does not perfect an appeal. [People v. Natividad] • But when the accused manifests or

gives notice of his intention to appeal in open court and files a bond for his provisional release within 15 days from the promulgation of the decision against him, he may be considered as having perfected his appeal. [People v. Agasang]

2) Petition for review (PFR). • Unlike an ordinary appeal, it is not a matter

of right. • Available only when the petition shows

prima facie that the lower court has committed an error of fact or law that will warrant the reversal/modification of the decision or final order sought to be reviewed.

3) Petition for review on certiorari (PFRC). • General rule: Only issues of law are

reviewable by a PFRC. • Findings of fact being deemed

conceded by the appellant. • Exception: SC reviews questions both

of fact and of law in cases decided by the RTC: [RA 296] a) Where the penalty imposed is life

imprisonment; b) Which involve other offenses

committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of

death or life imprisonment is imposed.

• Appeal by PFRC from the decision or final order of the RTC/CA may be taken by filing the petition within 15 days from notice of judgment or of the denial of MFR filed in due time. • Copy must be served on the court

whose judgment or final order is sought to be reviewed.

• If no record of appeal has been filed in the CA, the SC clerk of court, upon admission of the petition, shall demand from the CA the elevation of the whole record of the case. [Rule 45, Sec. 2] • Provision above governs procedure of

appeal from RTC or Sandiganbayan to the SC.

• Implication: Records on appeal, before a mandatory requirement for the perfection of ordinary cases to the CA, are no longer required.

4) Automatic review. SERVICE OF NOTICE OF APPEAL [Rule 122, Sec. 4] • Modes of service under Rule 13, Sec. 7 and 8:

1) Personal service upon adverse party or his counsel;

2) By registered mail; 3) By substituted service.

• Court may order publication in a newspaper of general circulation at least once a week for period not exceeding 30 days.

• Mere failure of the accused to serve a copy of notice of appeal is not a defect. What is important is that the appellant is able to exercise the right of appeal. [US v. Sotavento (1919) ]

• The appellee may waive his right to a notice that an appeal has been taken. [Rule 122, Sec. 5]

• The appellate court may entertain an appeal notwithstanding failure to give such notice if the interests of justice so require. [Rule 122, Sec. 5]

WHEN ORDINARY APPEAL SHOULD BE TAKEN • Within 15 days from promulgation of judgment

or from notice of the final judgment appealed from. [Rule 122, Sec. 6]

• General rule: If no appeal is taken within the 15 days, judgment or order becomes final. [US v. Samio (1904)] • Exception: The time for appeal may be

extended if it is satisfactorily shown that there is justifiable reason for such action. The extension is an exception granted only in very meritorious cases (e.g. fraud, accident, mistake or excusable negligence or similar supervening casualty without fault of the appellant).

HOW PERIOD IS COUNTED • The 1st day is excluded and the last day is

included. [Admin Code; CC] • Should the last day fall on a Sunday or a

holiday, the period continues to run until the next day which is neither a Sunday nor a holiday. [Admin Code]

• The period is not extended by the 20-day requirement for the TC to elevate the records of the case to the SC. [People v. Tirol (1981)]

SUSPENSION OF PERIOD OF APPEAL



• Period is suspended by the filing of MNT/MFR. • Suspension is until notice of the order

overruling the MNT/MFR. [Hiquina v. Veloso] • But the filing of a motion to extend time to

appeal does not suspend the period. [Reyes v. Santa Maria (1972)]

SHORTENING OF PERIOD • The court cannot shorten the period to appeal. • Hence, the court cannot make the decision final

before the end of the period by issuing a commitment order immediately. [Del Rosario v. Rosero (1983)]

WHEN PERIOD DOES NOT APPLY

• When judgment of conviction imposes death penalty, the SC automatically reviews it without need of the accused’s intervention. Judgment becomes final only after the SC has passed upon it.

TRANSCRIBING AND FILING OF STENOGRAPHIC NOTES [Rule 122, Sec. 7]

When appellant is - The court shall direct

the stenographic reporter to

The accused Transcribe his notes of the proceeding

The People of the Philippines

Transcribe such portion of his notes of the proceedings as the court, upon motion, shall specify in writing

STENOGRAPHER’S CERTIFICATION [Rule 122, Sec. 7] • He certifies the correctness of the notes and

the transcript thereof, which shall consist of the original and 4 copies.

• He shall file said original and 4 copies of the TSN with the clerk without unnecessary delay.

IF DEATH PENALTY IS IMPOSED [Rule 122, Sec. 7] • Within 30 days from promulgation of the

sentence, the stenographer shall file with the clerk the original and 4 copies of the duly certified TSN. • He shall do so WON the accused has

appealed. • General rule: No extension of time for filing of

said TSN shall be granted. • Exception:

1) If extension is by the SC and only upon justifiable grounds.

2) When period for appeal is suspended, this period is also extended. If the defendant files a MNT within 15 days, the TC may entertain said motion, and if this motion takes weeks to consider up to the rendition of the new decision, then the 30 day period given by law must be extended. [People v. Bocar (1955)]

TRANSMISSION OF PAPERS TO APPELLATE COURT UPON APPEAL [Rule 122, Sec. 8] • Within 5 days from filing of notice of appeal,

the clerk of the court with whom the notice of appeal was filed must transmit to the clerk of the appellate court:

1) The complete record of the case; 2) The notice of appeal; 3) Original and 3 copies of the TSN (4th copy

of the TSN shall remain in the lower court). • If any material part of the evidence is not

transmitted from the RTC to the SC, the case will be remanded to the court of origin for a new trial. [US v. Tan] • It is the duty of the government (and not of

the defendant) to cause to be kept and, in case of an appeal by the defendant, to be sent to the appellate court, a complete record of the proceedings.

PROCEDURE IN APPEAL TO THE RTC [Rule 122, Sec. 9]

TRANSMISSION OF RECORDS IN CASE OF DEATH PENALTY [Rule 122, Sec. 10] • The records shall be forwarded to the CA for

automatic review and judgment. • Transmission to be done within 20 days but not

earlier than 15 days (i.e. within 5 days from the expiration of the 15 day period): 1) From the promulgation of the judgment; or 2) From notice of the denial of MNT/MFR.

• TSN shall also be forwarded within 10 days after the filing thereof by the stenographic reporter.

• Although a judgment of conviction is entered by the TC, such is not final and conclusive until it has been reviewed by the SC. This automatic review is something which neither the court nor the accused can evade. It is intended for the protection of the accused, ensuring the correctness of the decision of the TC sentencing him to death. [US v. Laguna (1910); People v. Bocar (1955)]

• Unlike any other direct appeal to the SC where only questions of law are reviewed, the SC in automatic review may review the findings of fact of the TC. [People v. Soriano (2002)]

JURISDICTION OF THE TC PRIOR TO EXPIRATION OF PERIOD TO APPEAL

Transmission of record to RTC Within 5 days from perfection of the appeal, the clerk

of court shall transmit the original record to the appropriate RTC.

Notification of parties Upon receipt of the complete record, TSN and

evidence of the case, the RTC clerk of court shall notify the parties of such fact.

Submission of memoranda/briefs Within 15 days from receipt of said notice, the parties may submit memoranda/briefs, or may be required by

the RTC to do so.

Decision After submission of such memoranda/briefs or upon the expiration of the period to file the same, the RTC shall decide the case on the basis of the entire record of the case and of such memoranda/briefs as may

have been filed.



• The prohibition of not sending up the records before the 15 days is up is because within those 15 days, the case is still within the jurisdiction of the TC. [Director of Prisons v. Teodoro]

• After the perfection of appeal or after expiration of 15 days, however, the appellate court acquires jurisdiction over the case to the exclusion of the TC. [Director of Prisons v. Teodoro]

• During this period, the TC can still decrease (but not increase) the penalty, acquit the accused, or grant a MNT filed by the defendant.

• MNT suspends the running of the 15-day period. Hence, the transmission of the records to the SC for automatic review is necessarily suspended.

EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED [Rule 122, Sec. 11] • General rule: An appeal taken by one or more

of several accused shall not affect those who did not appeal. • As to the appealing party, the execution of

judgment appealed from is stayed upon the perfection of the appeal.

• As to the co-accused who did not appeal, the judgment of the TC insofar as it relates to him becomes final and the appellate court has no power to interfere with it. [Salvatierra v. CA (1996)] • Exception: Insofar as the judgment of

the appellate court is favorable and applicable to those who did not appeal or who withdrew his appeal. [People v. Escano]

• The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from.

WITHDRAWAL OF APPEAL FROM MTC/RTC JUDGEMENT [Rule 122, Sec. 12] 1) Before record is forwarded to appellate court:

• Even if appeal was already perfected, the MTC/RTC may allow appellant to withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court.

• The effect of such withdrawal is that the judgment becomes final.

2) After record has been forwarded to RTC: • The RTC may also allow the appellant of

the MTC judgment to withdraw his appeal. • The withdrawal must be by a motion to that

effect, filed before rendition of the judgment in the case on appeal.

• The effect of such withdrawal is that the judgment shall become final and the case shall be remanded to the MTC for execution of the judgment.

• After the appeal has been heard on the merits and submitted to the court for decision, or after the briefs were presented, the appellant has no absolute right to withdraw the appeal. The withdrawal is now a matter that rests within the sound discretion of the court. [People v. Rapirap (1958)]

• Withdrawal of appeal by counsel de oficio needs consent of the accused, since the withdrawal of an appeal affects his substantive rights.

EFFECT OF ESCAPE OF ACCUSED PENDING APPEAL [Longao v. Fakat (1969)] • Situations contemplated: If the accused:

1) Escapes from confinement; 2) Jumps bail; 3) Flees to a foreign country.

• The appellate court may dismiss the appeal, motu propio or upon appellee’s motion. • Rationale: It is in contempt of the

authority of the court and of the law, and the accused places himself in a position to speculate on the chances for a reversal, meanwhile keeping out of the reach of justice and preparing to render the judgment nugatory at his option.

WITHDRAWAL OF APPEAL IN CASE OF AUTOMATIC REVIEW [People v. Cornelio (1971)] • Withdrawal is not allowed in case of automatic

review. • It would not remove the case from the

jurisdiction of the SC. • Even the escape of the accused from detention

during the pendency of his appeal does not relieve the court of the burden of reviewing the case.

APPOINTMENT OF COUNSEL DE OFICIO FOR ACCUSED ON APPEAL [Rule 122, Sec. 13] • Upon the filing of the notice of appeal, it

becomes the duty of the TC clerk of court to: 1) Ascertain from the appellant, if confined in

prison, WON he desires the RTC/CA/SC to appoint a counsel de oficio to defend him; and

2) Transmit with the record (on a form prepared be the clerk of the appellate court) a certificate of compliance with this duty and of the response of the appellant to his inquiry.

• Rationale: The constitutional right of the accused to defend by himself and by counsel.

C. PROCEDURE IN THE MTC UNIFORM PROCEDURE [Rule 123, Sec. 1] • General rule: The procedure to be observed in

the MeTC/MTC/MCTC shall be the same as that in the RTC. • Exception:

1) Where a particular provision applies only to either of said courts;

2) Criminal cases governed by the Revised Rules on Summary Procedure.

WHEN PROCEDURES ARE DIFFERENT 1) Offenses falling under the MTC/MCTC’s

Jurisdiction: [Salcedo v. Nobles-Bans (1985)] • Notwithstanding the uniform procedure

rule, if the offense falls under the jurisdiction of the MTC/MCTC, complaint/information may be filed directly with said courts or with the City Prosecutor’s Office.

2) Offenses falling under the MeTC’s Jurisdiction: [Salcedo v. Nobles-Bans (1985)] • In Metro Manila and other chartered cities,

the complaint may be filed only with the Office of the City Prosecutor

• If the case is directly filed with the court, the case should not be dismissed. The court should just refer it to the City Prosecutor for the filing of the corresponding information.

3) Cases governed by the Revised Rules on Summary Procedure:



a) Violations of traffic laws/rules/regulations; b) Violations of the rental law; c) Violations of municipal/city ordinances; d) Violations of BP 22; e) All other criminal cases where the penalty

is imprisonment not exceeding 6 months or a fine not exceeding P1K or both, irrespective of other imposable penalties (accessory or otherwise) or of the civil liability arising from it. • However, in offenses involving damage

to property through criminal negligence where imposable fine does not exceed P 10K, the Uniform Procedure Rule shall govern (i.e. it is not governed by Revised Rules on Summary Procedure).

• Revised Rules on Summary Procedure also does not apply to criminal cases where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

THE REVISED RULES ON SUMMARY THE REVISED RULES ON SUMMARY THE REVISED RULES ON SUMMARY THE REVISED RULES ON SUMMARY

PROCEDUREPROCEDUREPROCEDUREPROCEDURE COMMENCEMENT OF ACTION [Sec. 11] • The filing of the criminal case shall be either by

complaint or by information. • However, in Metropolitan Manila and in

chartered cities, commencement shall be only by information. • Exception: When the offense cannot

be prosecuted de oficio. • The complaint/information shall be

accompanied by the affidavits of the compliant and of his witnesses. • No. of copies = [ No. of accused + 2 copies

for the court’s files] • If the required no. of copies ment is not

complied with within 5 days from date of filing, the case may be dismissed.

REFERRAL TO LUPON [Sec. 18] • If the case requires referral to the Lupong

Tagapamayapa under PD 1508 and this is not complied with, it shall be dismissed without prejudice. The case may be revived only after compliance with the requirement. • Exception: Criminal cases of warrantless

arrest. COURT’S DUTY [Sec. 12] 1) If commenced by compliant:

• Based on the compliant/affidavits/evidence, the court may dismiss the case outright for being patently without basis/merit and order the release of the accused (if in custody).

2) If commenced by information or if not dismissed according to #1: • The court shall order the accused to submit

his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf (with copies served on the complainant/prosecutor) not later than 10 days from receipt of order. The prosecution may file reply affidavits within 10 days after receipt of the counter-affidavits.

PROHIBITED PLEADINGS AND MOTIONS [Sec. 19] 1) MTD;

• Exception: On grounds of either: a) LOJ over subject matter;

b) Failure to refer to Lupon. 2) Motion for BOP; 3) MNT/MFR or motion for re-opening of trial; 4) Petition for relief from judgment; 5) Motion for extension to file; 6) Memoranda; 7) Petition for certiorari/mandamus/prohibition

against any interlocutory order; 8) Motion to declare defendant in default; 9) Dilatory motions for postponement; 10) Reply; 11) 3rd-party complaints; 12) Interventions. ARRAIGNMENT AND TRIAL [Sec. 13] • After consideration of the

complaint/information and the affidavits, if the court finds no cause/ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial.

• If the accused is in custody for the crime charged, he shall be immediately arraigned. If he enters a plea of guilty, he shall forthwith be sentenced.

PRELIMINARY CONFERENCE [Sec. 14] • Before conducting the trial, the court shall call

the parties to a preliminary conference for: 1) Stipulation of facts;

• Refusal/failure to stipulate shall not prejudice the accused.

2) Plea bargaining; • No admission by the accused shall be

used against him unless reduced to writing and signed by the accused and his counsel.

3) Other matters to clarify the issues and to ensure a speedy disposition of the case.

TRIAL [Sec. 15] • The submitted affidavits will be the direct

testimonies of the witnesses/affiants. They shall be subject to cross, re-direct and re-cross examinations.

• If the affiant fails to testify, his affidavit will not be considered as competent evidence for the party presenting his affidavit. However, the adverse party may utilize his affidavit for any purpose.

• A witness cannot testify unless his affidavit was previously submitted to the court according to Sec. 12. • Exception: On rebuttal or surrebuttal.

• If a party wishes to present additional affidavits/counter-affidavits, he should so manifest (and his purpose) during the preliminary conference.

• If the court allows the additional affidavits/counter-affidavits, they shall be submitted to the court and served on the adverse party within 3 days from the termination of the preliminary conference. If it is the prosecution who submits additional affidavits, the defense may file counter-affidavits thereto (copy furnished the prosecution) within 3 days from service.

ARREST OF THE ACCUSED [Sec. 16] • The court shall not order the arrest of the

accused. • Exception: For failure to appear whenever

required.



• Release of the accused shall be by bail or on recognizance.

JUDGMENT [Sec. 17] • If trial was conducted, the court shall

promulgate judgment within 30 days from termination of trial.

APPEAL [Sec. 21] • Judgment may be appealed to RTC per Sec. 22,

BP 129.

D. PROCEDURE IN THE CA PARTIES AND TITLE [Rule 124, Sec. 1] • In all criminal cases appealed to the CA:

1) APPELLANT – The party appealing; 2) APPELLEE – The party adverse to the

appellant. • The title of the case shall remain as it was in

the court of origin (i.e. People v. John Doe). APPOINTMENT OF COUNSEL DE OFICIO [Rule 124, Sec. 2]

• The counsel de oficio cannot dismiss the appeal without the consent of his client [US v. Lafuente] or admit findings of fact by the TC [People v. Isaac].

BRIEF FOR APPELLANT [Rule 124, Sec. 3] • Appellant shall file 7 copies of his brief with the

clerk of court, accompanied by proof of service of 2 copies on the appellee.

• It shall be filed within 30 days from receipt by the appellant (his counsel) of the CA clerk of court’s notice that the evidence is already attached to the record.

• Purpose: To show grounds for reversal of judgment and to point out the errors/irregularities in the lower court’s proceedings.

BFIEF FOR APPELLEE [Rule 124, Sec. 4] • Appellee shall file 7 copies of his brief with the

clerk of court, accompanied by proof of service of 2 copies on the appellant.

• It shall be filed within 30 days from receipt of the appellant’s brief.

• Purpose: To meet/refute the appellant’s submissions.

REPLY TO APPELLEE’S BRIEF [Rule 124, Sec. 4] • Appellant may (i.e. optional) file a reply brief

traversing matters raised in the appellee’s brief but not covered in the brief of the appellant.

• It must be filed within 20 days from receipt of the appellee’s brief.

EXTENSION OF TIME FOR FILING BRIEFS [Rule 124, Sec. 5] • General rule: Extension of time for the filing

of briefs is not allowed • Exception: for good and sufficient cause

• It is sought through a motion for extension, which must be filed before the expiration of the time sought to be extended.

• Grant of extension rests on the court’s discretion. [Piedad v. Batuyong (1974) ]

• Court may grant as many extensions as may be asked. [Gregorio v. CA (1976) ]

FORM OF BRIEFS [Rule 124, Sec. 6]

• Briefs shall printed/encoded/typewritten, in double space, on legal size good quality unglazed paper, 330mm in length by 216mm in width.

• Mimeographed copies are not allowed. CONTENTS OF BRIEF • The briefs in criminal cases shall have the same

contents as provided in Rule 44, Sec. 13-14. [Rule 124, Sec. 7]

1) Appellant’s brief: [Rule 44, Sec. 13]

a) SUBJECT INDEX – Digest of the arguments and page references, and a tables of: (1) cases alphabetically arranged; and (2) books and statutes cited, with references to the pages where they are cited.

b) ASSIGNMENT OF ERRORS – Errors urged separately, distinctly and concisely; stated without repetition and numbered consecutively.

c) STATEMENT OF THE CASE – Clear and concise statement of the nature of the action, a summary of the proceedings, the appealed court rulings and orders, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record.

d) STATEMENT OF FACTS – Clear and concise narrative statement of the facts admitted by both parties and of those in controversy, together with the substance of the related proof, in sufficient detail to make it clearly intelligible and with page references to the record.

e) ISSUES – Clear and concise statement of issues of fact/law submitted to the court for its judgment.

f) ARGUMENT – Appellant’s arguments on each assignment of error, with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found.

g) RELIEF – Specification of the order/judgment which the appellant seeks. In cases not brought up by record on appeal, the appellant’s brief shall contain (as an appendix) a copy of the judgment or final order appealed from.

h) Attachment: Certified true copy of the decision or final order appealed from. [Rule 124, Sec. 7]

2) Appellee’s brief: [Rule 44, Sec. 14] a) Subject index. b) STATEMENT OF FACTS – Statement that

appellee accepts the statement of facts in the appellant’s brief; or COUNTER-STATEMENT OF FACTS – Points out the insufficiencies/inaccuracies appellee believes to exist in the appellant’s statement of facts, with references to the supporting pages of the record. Matters in the appellant’s statement of facts should not be repeated.

c) ARGUMENT – Appellee’s arguments on each assignment of error, with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the



page of the report on which the citation is found.

DISMISSAL OF APPEAL FOR ABANDONMENT OR FAILURE TO PROSECUTE [Rule 124, Sec. 8] • Grounds:

1) Appellant fails to file his brief within the prescribed time; • Exception: Where the appellant is

represented by a counsel de oficio. • If failure to file brief on time is the

ground, appellant must be given notice to give him opportunity to reason out why his appeal should not be dismissed.

• However, dismissal is proper despite lack of notice: a) If appellant has filed a MFR or

motion to set aside the order dismissing the appeal, in which he stated the reason why he failed to file his brief on time and the appellate court denied the motion after considering reason. [Baradi v. People (1948)]

b) If appeal was dismissed without notice but appellant took no steps to have the appeal reinstated. Such action amounts to abandonment. [Salvador v. Reyes]

2) If the appellant escapes from prison/confinement, jumps bail or flees to a foreign country during the pendency of the appeal. • Rationale: Escape of appellant during

the pendency of the appeal implies a withdrawal of the appeal. Hence, judgment of the TC becomes final. [US v. Ravidas (1905)]

• Likewise, when accused flees after the case has been submitted for decision, he is deemed to have waived his right to appeal. [People v. Ang Gioc (1941)]

• Exception: Appeal will not be dismissed despite escape: a) In one exceptional case, the

appellant took advantage of a mass jailbreak (because, according to his counsel de oficio he was innocent and wanted to elude an unjust punishment) but was recaptured 2 hours after, the SC said circumstances were not sufficient to justify dismissal of the appeal. [People v. Valencia]

b) If there was absolutely no evidence against the accused as found by the appellate court, he should be acquitted in order to prevent an injustice by technicalities. [People v. Buenaventura (1994)]

c) In case of automatic review. [People v. Cornelio]

• CA may dismiss the appeal upon appellee’s motion or motu proprio.

PROMPT DISPOSITION OF APPEAL [Rule 124, Sec. 9]

• Appeals of accused who are under detention are given precedence in their disposition over other appeals.

• The CA shall hear and decide the appeal at the earliest practicable time with due regard to the parties’ rights.

• The accused need not be present in court during the hearing of the appeal. • Proceedings on appeal will not be stayed in

a criminal case on account of the absence of the accused as his presence is not necessary at said hearing. [US v. Lewis]

REVERSAL/MODIFICATION OF JUDGMENT ON APPEAL [Rule 124, Sec. 10] • General rule: No judgment shall be

reversed/modified. • Exception: When the CA, after an

examination of the record and of the parties’ evidence, is of the opinion that error was committed and such error injuriously affected the appellant’s substantial rights.

• When it involves credibility of witnesses, appellate courts will not generally disturb the TC’s findings. • Rationale: The TC is in a better

position to decide the question, having seen and heard the witnesses themselves. [People v. Cabiling (1976)]

SCOPE OF CA’S JUDGEMENT [Rule 124, Sec. 11] • The CA may:

1) Reverse/affirm/modify the judgment; 2) Increase/reduce the penalty imposed by

the TC; 3) Remand the case to the RTC for new trial

or retrial; 4) Dismiss the case.

• When the accused appeals from the sentence of the TC, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, WON favorable to the accused and WON made the subject of assignment of errors. [Ko Bu Lin v. CA (1982)]

CA’S POWER RECEIVE EVIDENCE [Rule 124, Sec. 12] • The CA has power to try cases and conduct

hearings, receive evidence and perform any and all acts necessary to resolve factual issues in cases: 1) Falling within its original jurisdiction; 2) Involving claims for damages arising from

provisional remedies; 3) Where the court grants a new trial based

only on the ground of newly-discovered evidence.

• CA’s trials and hearings must be continuous and completed within 3 months, unless extended by the Chief Justice.

QUORUM IN THE CA [Sec. 11, BP 129] • 3 CA Justices constitute a quorum for the

sessions of a division. • The unanimous vote of the 3 Justices of a

division is necessary for the pronouncement of a judgment or final resolution

• Decision is reached through a consultation before the writing of the opinion by a member of the division.

• If there is lack of unanimity, the Presiding Justice shall direct the CA raffle committee to



designate 2 additional Justices to sit temporarily with them. They shall then form a special division of 5 members. • The concurrence of a majority of that

special division is necessary for the pronouncement of a judgment or final resolution.

• Designation of the additional Justices shall be made strictly by raffle and rotation among all other CA Justices.

CERTIFICATION OR APPEAL OF CASES TO THE SC [Rule 124, Sec. 13] 1) If the CA finds that death penalty should be

imposed: • AUTOMATIC REVIEW – CA shall render

judgment but refrain from making an entry of judgment. It shall then certify the case and elevate its entire record to the SC for review. The accused does not have to do anything.

• Note: Death penalty has been abolished. 2) If the judgment also imposes a lesser penalty

for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the more severe offense for which death is imposed, and the accused appeals: • The appeal shall be automatically included

in the case certified for review in the SC 3) If the CA imposes reclusion perpetua, life

imprisonment or a lesser penalty: • It shall render and enter judgment

imposing such penalty. • Appeal here is not automatic. The accused

has to file a notice of appeal with the CA. JUDGMENT TRANSMITTED AND FILED IN TC • When the CA’s entry of judgment is issued, a

certified true copy of the judgment shall be attached to the original record. These shall be remanded to the clerk of the court from which the appeal was taken. [Rule 124, Sec. 17]

• This copy of the entry serves as the formal notice to the court from which the appeal was taken of the disposition of the case in the appellate court, so that the judgment may be executed and/or placed or noted in the proper file.

MNT DURING THE PENDENCY OF APPEAL IN THE CA [Rule 124, Sec. 14] • Appellant may file MNT on the ground of newly

discovered evidence material to his defense any time: • After the appeal from the lower court has

been perfected, but • Before the CA judgment convicting him

becomes final. • The motion shall conform to Rule 121, Sec. 4. • If the CA grants a MNT, it may either: [Rule

124, Sec. 15] 1) Conduct the hearing and receive evidence; 2) Refer the trial to the court of origin.

MFR OF CA JUDGMENT [Rule 124, Sec. 16] • MFR may be filed within 15 days from notice of

the CA judgment or final order, with copies served on the adverse party.

• The mittimus shall be stayed during the MFR’s pendency.

• General rule: No party shall be allowed a 2nd MFR of a judgment or final order. [Sec. 11, BP 129]

• Exception: Where the 1st MFR resulted in a reversal or substantial modification of the original decision or final resolution. • In this case, the party adversely

affected by the reversal/modification may himself file a MFR of the latest judgment of the court, because with respect to him, said motion is a first pleading of that nature.

APPLICABLE CIV PRO RULES [Rule 124, Sec. 18] • Provisions of Rules 42, 44-46 and 48-56

relating to procedure in the CA and the SC in original and appealed civil cases, shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provision of this Rule.

E. PROCEDURE IN THE SC UNIFORM PROCEDURE [Rule 125, Sec. 1] • General rule: The procedure in the SC in

original and in appealed cases shall be the same as in the CA. • Exception: If the Constitution or law

provides otherwise. WHAT THE SC MAY DO ON REVIEW • In a criminal case, an appeal to the SC throws

open the whole case for review and it becomes its duty to correct such errors as may be found in the judgment appealed from, WON they were assigned as errors. [People v. Olfindo (1924)]

• It may examine the judgment as to the qualification of the crime and the degree of the penalty imposed. [Macali v. Revilla (1926)]

• It may also assess and award civil indemnity. [Quemel v. CA (1946)]

WAYS BY WHICH A CASE MAY REACH THE SC 1) Automatic review.

• It is not a matter of right on the part of the accused, but a matter of law.

• Hence, the escape of the accused does not relieve the SC of the burden of automatically reviewing the case. [US v. Laguna (1910)]

• When available: a) When the RTC judgment upon the

accused imposes death penalty. [Rule 122, Sec. 10]

b) When the RTC decision is appealed to CA and the latter is of the opinion that the penalty imposed should be death or life imprisonment. CA judgment is imposed but no entry of judgment is made; instead, the case is certified and the entire record is elevated to the SC for review. [Rule 124, Sec. 13]

2) Ordinary appeal. • When available:

a) When the penalty imposed by the RTC is life imprisonment, decision is appealable directly to the SC by filing a notice of appeal with the RTC. [Rule 122, Sec. 3]

b) When an accused was charged with 2 or more offenses committed on the same occasion or arising out of the same occurrence, and in one of those 2 cases, he was sentenced to life imprisonment or death penalty, the



appeal with respect to the others, though punished with a lesser penalty, is to the SC. [Rule 122, Sec. 3]

c) When the penalty of reclusion perpetua or death is imposed on some of the defendants and a lesser penalty on the other co-defendants, on account of their varying degree of participation in the commission of the offense or due to the presence of modifying circumstances, in which case the decision on the non-life convicts is directly appealable to the SC. [People v. Carino]

• In these cases, the SC reviews not only errors of law but also the findings of fact by the TC.

3) Petition for review on certiorari. • When available:

a) When constitutionality/validity of any treaty, executive agreement, law, ordinance or executive order or regulation is in question. • When validity of law is questioned

by an accused convicted under it by the TC, the SC cannot review the evidence or pass upon any other question of law which may appear on the record, but will only confine itself to the question of the in/validity of that law. [Trinidad v. Sweeney (1904)]

b) When the jurisdiction of any inferior court is in issue.

c) When only an error or question of law is involved.

d) On decisions of the CA and the Sandiganbayan. • As a rule, review here is limited to

errors of law. • General rule: Certiorari is used to correct

only errors of jurisdiction and not errors of judgment of an inferior court. For errors of judgment, ordinary appeal is available. • Exception: Cases where certiorari is

granted despite existence of the remedy of appeal: a) Where public welfare and

advancement of public policy so dictate.

b) Where the broader interests of justice so require.

c) Where the orders complained of were found to be completely null and void.

d) Where appeal was not considered as the appropriate remedy.

FAILURE TO SPECIFY APPELLATE COURT • Failure of appellant to specify in his notice of

appeal the court to which the appeal is being made is not fatal. [RA 296]

ERRONEOUS CHOICE/ MODE OF APPEAL • In the case of People v. Resuello (1969), the

contention of the adverse party that the ordinary appeal filed by appellant shall be dismissed because the proper remedy is petition for review on certiorari (only questions of law were involved) was rejected.

The SC said that in cases similarly situated, and as long as the steps formally required for the perfection of an appeal were taken in due time, appeal may be given due

course, without prejudice to requiring the appellant to file the necessary petition for review on certiorari which is also a form of appeal.

REVIEW OF CA DECISIONS • The procedure for the review by the SC of CA

decisions on criminal shall be the same as in civil cases. [Rule 125, Sec. 2]

• General rule: The SC’s appellate jurisdiction in cases brought to it from the CA is limited to reviewing and revising the errors of law incurred by the latter. • The CA’s findings of fact are final. • If an appeal in the SC involves questions of

facts, the SC has no jurisdiction and should dismiss appeal. [Guico v. Mayuga (1963)]

• Exception: [Vargas v. CA; Napolis v. CA (1972)] 1) When the conclusion is a finding

founded entirely on speculations/surmises/conjectures;

2) When the inference made is manifestly mistaken/absurd/impossible;

3) When there is GAD; 4) When the judgment is based on a

misapprehension of facts; 5) When the findings of facts are

conflicting; 6) When the CA, in making its findings,

went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee.

DECISION IF OPINION IS EQUALLY DIVIDED [Rule 125, Sec. 3] 1) When the SC en banc is equally divided in

opinion or the necessary majority cannot be had on WON to acquit the appellant, the case shall again be deliberated upon. • If no decision is reached after re-

deliberation, the lower court’s judgment of conviction shall be reversed and the accused is acquitted.

2) If case is decided by a division of the SC whose members are equally divided, the case shall be heard and decided by the SC en banc.

CONSTITUTIONAL PROVISIONS ON SC COMPOSITION [Art. 8, Sec. 4, Consti] • SC Composition: 1 Chief Justice + 14 Associate

Justices. • SC may sit en banc or (in its discretion) in

divisions of 3, 5 or 7 members. • No doctrine or principle of law laid down by the

SC in a decision rendered en banc or in division may be modified/reversed.

XV. SEARCH AND SEIZURE OF

EVIDENCE OF CRIME

A. A. A. A. SEARCH WARRANT (SW)



• Definition: It is an order in writing; issued in the name of the People of the Philippines; signed by a judge; and directed to a peace offer, commanding him to search for personal property described in the warrant and bring it before the court. [Rule 126, Sec. 1]

• If it is not written: It is void. • If it is without the judge’s signature: It is

fatally defective. • It is a special and peculiar remedy, drastic in

its name, and made necessary because of a public necessity

CONSTITUTIONAL BASIS

• The right of the people to be secure in their

persons/houses/papers/effects against unreasonable searches and seizures of whatever nature or for any purpose shall not be violated. [Art. 3, Sec. 2, Consti]

• No SW or warrant of arrest shall issue except upon PC to be determined personally by the judge after the examination under oath/affirmation of the complaint and the witness he may produce, and particularly describing the place to be searched, and the things/persons to be seized. [Art. 3, Sec. 2, Consti]

• The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety/order requires otherwise, as prescribed by law. [Art. 3, Sec. 3, Consti]

• Rationale: • What is sought to be guarded is man’s

prerogative to choose who is allowed entry to his residence. His privacy must not be disturbed by the government except in cases of overriding social need, and then only under the stringent procedural safeguards. [Villanueva v. Querubin (1972)]

• A man’s house is his castle. However, he may not use his castle as a citadel for aggression against his neighbors, nor can he within its walls create such disorders as to affect their peace. [US v. Vallejo (1908)]

• Thus, the government has right to search and seize despite the individual’s right to privacy. The constitutional guarantee is not a blanket prohibition against all searches and seizures. It operates only against “unreasonable” searches and seizures.

• The prohibition is directed against the State. It is not applicable to acts committed by private entities.

CONSTRUCTION • The provisions of the Consti and statutes

relative to searches and seizures must be construed liberally in favor of the individual and strictly against the State. [People v. Sy Juco (1937)]

ISSUANCE OF THE SW WHERE APPLICATION FOR SW IS FILED [Rule 126, Sec. 2] 1) Any court within whose territorial jurisdiction a

crime was committed. 2) For compelling reasons stated in the

application:

a) If the place of the commission of the crime is known, any court within the judicial region where the crime was committed.

b) Any court within the judicial region where the warrant shall be enforced.

WHEN TO ISSUE SW • If the judge is satisfied of the existence of facts

upon which the application is based or that there is PC to believe that they exist, he shall issue the SW. [Rule 126, Sec. 6]

• In issuing or not issuing SWs, judges act according to the evidence presented to them, and orders of the judge on the matter are not final and do not constitute res judicata. • Denial of SW on ground of insufficiency of

deposition is not a bar to further proceedings.

• Issuance of SW is not res judicata as to the right to the SW. [Cruz v. Dinglasan (1949)]

WHAT MAY BE SEIZED [Rule 126, Sec. 3] 1) Personal property subject of the offense. 2) Personal property stolen/embezzled and other

proceeds/fruits of the offense. 3) Personal property used or intended to be used

as the means of committing an offense. • Personal property only. SW does not issue for

seizure of immovable properties. • Ownership of the property seized is immaterial.

It is sufficient that the person against whom SW is directed has control/possession of the property. [Burgos v. Chief of Staff (1984)]

REQUISITES FOR ISSUING SW [Rule 126, Sec. 4] 1) There is PC in connection with a specific

offense. 2) The PC is determined personally by the judge. 3) He determines this through examination under

oath/affirmation of the complainant and the witness he may produce.

4) SW particularly describes the place to be searched and the things to be seized which may be anywhere in the Philippines.

• Courts have declared invalid SW that did not

comply with these requisites. [Lim v. de Leon (1975)]

• A court’s disregard for the requirements constitutes GAD which may be remedied by certiorari under Rule 65.

PROBABLE CAUSE

• Definition: Such reasons, supported by facts

and circumstances, as will warrant a cautious man in the belief that his action, and the means taken in prosecuting it, are legally just and proper. [US v. Addison (1908)]

• It is a reasonable ground of suspicion, supported by circumstances sufficiently strong by themselves to warrant a cautious man in the belief that the person accused is guilty of the offense of which he is charged. [Dizon v Hon. Castro (1985)]

• It does not mean absolute certainty. Innocence of a party, whether merely proclaimed or real does not necessarily preclude a finding of PC. [DOH v. Sy Chi Siong (1989)]

• Existence of PC depends on sound judgment and discretion of the judge [US v. Ocampo (1910)], a function he cannot delegate to the



applicant or anyone else. [Pasion v. Locsin (1938)]

PARTICULAR DESCRIPTION

• Purpose: To limit the things to be seized to

those (and only those) particularly described in the SW, leaving the officers no discretion regarding what articles they shall seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed. [Uy Kheytin v. Villareal (1920)]

DESCRIPTION OF PLACE

• Description of place to be searched is sufficient if the officer with the SW can, with reasonable efforts, ascertain and identify the place intended. [People v. Veloso (1925)]

• An apparent typographical error will not necessarily invalidate the SW. [Burgos v. Chief of Staff (1984)]

• TEST OF PARTICULARITY – That the executing officer’s prior knowledge as to the place intended in the SW is relevant. This would seem especially true where the executing officer is the affiant on whose affidavit the SW had issued, and when he knows that the judge who issued the SW intended the building described in the affidavit. And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the SW as to the place to be searched. [Burgos v. Chief of Staff (1984)]

DESCRIPTION OF PROPERTY • General rule: Things to be seized must be

described particularly. General SWs are not allowed. • SWs authorizing the seizure of books of

accounts and records “showing all the business transactions” of certain persons, regardless of whether the transactions were legal or illegal, are general warrants prohibited by law. [Stonehill v. Diokno (1967)]

• Likewise, a description of things to be seized as “subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials” hardly provided a definite guideline to the executing officers. [Dizon v. Hon. Castro]

• And where the language used is too all-embracing as to include all the paraphernalia of petitioner in the operation of its business, the SW is constitutionally objectionable [Columbia Pictures v. Flores (1993)]

• Exception: 1) But where, by the nature of the goods

to be seized, their description must be rather general, it is not required that a technical description be given, for this would mean that no SW could issue. [People v. Rubio (1932)]

2) The general description of the documents listed in the SW does not render the SW void if the SW is severable, and those items not particularly described may be cut off without destroying the whole SW. [Uy v. BIR (2001)]

OFFENSE ALLEGED MUST BE SPECIFIC • General rule: The offense alleged must be

specific as to enable the judge to find the existence of a PC. • Definite provisions of the allegedly violated

laws must be referred to. • No SW shall issue for more than one

specific offense. [RPC] • A SW issued for an “illegal traffic of

narcotics and contraband” is fatally defective. The latter is a generic term covering all goods exported from or imported in the country contrary to applicable statutes. Necessarily then, more than one offense could arise from the activity designated as illegal traffic of narcotics and contraband. [Castro v. Pabalan (1976)]

• Exception: In People v. Marcos (1990), the SW was declared valid despite lack of mention of specific offense because the application stated that the owner of the grocery store against whom warrant was directed, had in his possession unadulterated stocks in violation of the provisions Art. 188 and 199, RPC, which are closely allied articles as the punishable acts defined in one of them can be considered as including or is necessarily included in the other.

EXAMINATION OF COMPLAINANT [Rule 126, Sec. 5]

• Before issuing the warrant, the judge must

personally examine the complainant and the witnesses he may produce.

• The judge shall do so in the form of searching questions and answers.

• The questions and answers must be in writing and under oath.

• Facts testified on must be personally known to the complainant/witnesses. Their sworn statements, together with the affidavits submitted, shall be attached to the record.

EXAMINATION UNDER OATH • OATH — Includes any form of attestation by

which a party signifies that he is bound in conscience to perform an act faithfully and truthfully.

• The oath required must refer to the truth of facts within the personal knowledge of the petitioner/witness, because the purpose thereof is to convince the committing magistrate of the existence of PC. [Alvarez v. CFI (1937)]

• Mere affidavits of the complainant/witnesses are not sufficient. The law requires depositions. [Prudente v. Judge Dayrit (1989)]

JUDGE MUST CONDUCT EXAMINATION • SEARCHING QUESTIONS AND ANSWERS —

Such questions as have the tendency to show the commission of a crime and perpetrator thereof. [Luna v. Plaza (1968)]

• The statement as to the time of the alleged offense must be clear and definite and must not be too remote from the time of the taking of an affidavit and the issuance of the SW. [Asian Surety v. Herrera (1973)]

• The nearer the time at which the observation of the offense is alleged to have been made, the more reasonable the conclusion of PC. [Asian Surety v. Herrera (1973)]



• Testimony of witnesses is not necessary if the testimony of the complainant is sufficient. [Alvarez v. CFI (1937)]

INSTANCES OF INVALID EXAMINATION • The complainant’s application for SW and the

witness’ printed-form deposition were subscribed and sworn to before the judge, but the latter did not ask either of the two any question, the answer to which could possibly be the basis for determining WON there was PC. It cannot be said that the judge personally conducted the personal examination required. [Bache v. Ruiz (1971)]

• In reading of the TSN of the deposition of the applicant and his witnesses taken by the clerk of court, the judge was not able to observe the deponent’s demeanor nor to propound initial and follow-up questions. [Bache v. Ruiz (1971)]

• Where judge issuing the SW acted solely on the basis of the affidavits of the complainant and his witnesses, which were sworn to before another judge, without personally asking the witnesses questions. [Doce v. CFI (1968)]

INSTANCES OF VALID EXAMINATION • The validity of the SW and the affidavits is not

impaired by the fact that they are pre-typewritten by law enforcement agents, as long as they are sworn and subscribed to before the judge.

• In Luna v. Plaza (regarding warrants of arrests but applicable by analogy), the SC said that the law is complied with where the judge adopts as his own personal examination the questions asked by the police investigator, as appearing in the written sworn statements, which the judge read over again to the witnesses, whether said answers were his, and whether said answers were true, to which the witnesses replied in the affirmative, there being no prohibition to the contrary.

RIGHTS AND REMEDIES AGAINST

ILLEGALLY ISSUED SW

1) Employ any means to prevent the search. • Without a SW, the officer cannot insist on

entering a citizen’s premises. If he does so, he becomes an ordinary intruder.

• The person to be searched may resist the search and employ any means necessary to prevent it, without incurring any criminal liability. [People v. Chan Fook (1921)]

2) File criminal action against officer. • A public officer/EE who procures a SW

without just cause is criminally liable under Art. 129, RPC.

3) File a MTQ the illegal SW. • This remedy is employed if search is not

yet conducted. • General rule: The motion must be filed

before the sala of the judge who issued it. Only the court that issued the SW may order revocation of SW or release of things seized. [Pagkalinawan v. Gomez (1967)] • Exception: Where the SW is issued by

one court and the criminal action based on the results of the search is afterwards filed in another court, the motion may be filed in either court. [People v. CA (1999)]

• What may be raised in the MTQ: Only the issues of existence or non-existence of PC at the time of the SW’s issuance, compliance with requisites. • Matters of defense are to be raised in

the criminal action. [DOH v. Sy Chi Siong (1989)]

4) File a motion to return seized things. • This is the remedy used if the search was

already conducted and goods were seized as a consequence thereof.

• Where the motion will be filed follows the same rules as #3.

WHERE TO FILE MTQ THE SW OR SUPPRESS EVIDENCE THEREBY [Rule 126, Sec. 14]

Where to file

If criminal action has been filed

Court where the action has been instituted

If no criminal action has been instituted

Court that issued SW

If no criminal action is filed and motion is first filed with the court that issued the SW, but it failed to resolve the motion and a criminal case is subsequently filed in another court

Court where the subsequent criminal action has been instituted

WHO MAY AVAIL REMEDIES • SW’s illegality may be contested only by the

party whose rights have been impaired thereby. It cannot be availed by 3rd parties. [Lim v. Ponce de Leon]

• Hence, when a corporation’s documents were seized, the corporate officers cannot question the legality of the search as their personalities are separate and distinct from that of the corporation. [Stonehill v. Diokno]

EFFECT OF ILLEGAL SEARCH • Illegally seized evidence may not be admitted

in evidence in any proceeding. [Art. 3, Sec. 2, Consti]

DISPOSITION OF ILLEGALLY SEIZED PROPERTY • General rule: Goods seized by virtue of an

illegal warrant must be returned [Castro v. Pabalan] • Exception: If possession of the things

seized is prohibited by law, they shouldn’t be returned.

• However, where the accused obtained goods from another through payment of bouncing checks and thereafter sold said goods to a buyer in good faith, but said goods were taken from the purchaser with the use of a SW although the criminal case for estafa against the accused was still pending, the goods should be returned to the buyer. The buyer is entitled to possession of goods until restitution is ordered by the court in the criminal case. [Yu v. Honrado (1980)]

WAIVER OF IMMUNITY AGAINST UNREASONABLE SEARCHES AND SEIZURE [Pasion v Locsin (1938)] • The constitutional immunity against

unreasonable searches and seizure is a



personal right that may be waived expressly/impliedly.

• Waiver cannot be made just by anyone, except the person whose right is being invaded or one who is expressly authorized to do so in his behalf.

• Requisites of a valid waiver: 1) It must appear that the right exists; 2) That the person involved had knowledge,

(actual or constructive) of the existence of such right;

3) That the person had an actual intention to relinquish the right.

FORM OF SW

• SW must be substantially in the form

prescribed by the ROC. [Rule 126, Sec. 6] • SW must be in writing and contain:

1) Name of person against whom it is directed;

2) Offense for which it was issued; 3) The place to be searched and the specific

things to be seized; 4) A directive to law enforcement officers to

search and seize; 5) And for them to bring in court the things

seized; 6) Signature of the judge issuing it.

DIPLOMATIC OFFICERS

• SW cannot issue against diplomatic officers.

The law declares as null and void writs/processes issued against ambassadors and ministers. [RA 75]

• A judge acts without jurisdiction and with GAD if he refuses to order the quashal of a SW issued by him in disregard of a foreign visitor’s diplomatic immunity. [WHO v. Aquino (1972)]

MANNER OF SEARCH RIGHT TO BREAK DOOR/WINDOW TO EFFECT SEARCH [Rule 126, Sec. 7] • If refused admittance to the place of directed

search after giving notice of his purpose and authority, the officer may break open any outer/inner door or window of a house or any part of a house or anything therein.

• Prior notice is required only where some persons are found in charge of the building to be searched. Where house is unoccupied, the executing officers may force an entrance into the edifice without notice.

• Purpose of breaking door/window: 1) To execute the SW. 2) To liberate himself or any person lawfully

aiding him when unlawfully detained therein.

• This presupposes a situation where the officer had a priori served notice of his intention and authority to conduct the search but was unreasonably refused admittance or, having been admitted thereto, was unlawfully detained therein.

SEARCH MADE IN THE PRESENCE OF 2 WITNESSES [Rule 126, Sec. 8] • Search of a house/room/premises shall be

made in the presence of the lawful occupant thereof or any member of his family.

• But in their absence, 2 witnesses of sufficient age and discretion residing in the same locality must be present.

• This requirement is mandatory. Non-compliance subjects the public officer to a suit under Art. 130, RPC.

TIME OF MAKING SEARCH [Rule 126, Sec. 9] • General rule: The SW must direct that it be

served in the day time. • DAYTIME — That portion of the 24 hours

in which a man’s person and countenance are distinguishable.

• Exception: If the affidavit asserts that the property is on the person or in the place ordered to be searched, a direction may be inserted that it be served at any time of the day/night.

• A SW violates Rule 126, Sec. 9 if the time for making the search is left blank, thus enabling the officers to conduct the search in the evening of the appointed search. [Asian Surety v. Herrera]

• Where a search is to be made during the night time, the authority for executing the same at that time should appear in the directive on the face of the SW. [Asian Surety v. Herrera]

SW’S EXPIRATION • A SW shall be valid for 10 days from its date.

Thereafter, it shall be void. [Rule 126, Sec. 10] • General rule: A SW can be used only once;

thereafter, it functus oficio. [Uy Kheytin v. Villareal] • It cannot be used everyday for 10 days; or

for a different purpose everyday, and after the articles for which the SW has been issued have been seized, the same SW cannot be used as authority to make another search.

• Exception: Where the search was not completed in one day and had to be continued the following day, the warrant continues to be good authority for the continuation of the search proceedings, there being technically only one continuous search.

RECEIPT FOR THE PROPERTY SEIZED [Rule 126, Sec. 11]

How receipt is given

If lawful occupant was present

The officer seizing the property under the SW must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made

If he was not present

The officer seizing the property under the SW must, in the presence of at least 2 witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property

RETURN OF SW AND

INVENTORY/DELIVERY OF SEIZED

PROPERTY [Rule 126, Sec. 3]



1) The officer must forthwith deliver the property seized to the judge who issued the SW. A true inventory thereof duly verified under oath shall be attached • Goods seized remain under the court’s

custody until institution of the appropriate criminal action with the proper court. [Tenorio v. CA]

2) 10 days after SW’s issuance, the issuing judge shall ascertain if the return has been made. a) If no return was made, the judge shall

summon the person to whom the SW was issued and require him to explain why no return was made.

b) If the return has been made, the judge shall ascertain WON rule 126, Sec. 11 has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that #1 has been complied with.

3) The return on the SW shall be filed and kept by the custodian of the log book on SWs who shall enter therein the date of the return, the result, and other actions of the judge.

• A violation of this section shall constitute contempt of court.

REMEDY FOR CONFLICTING CLAIMS ON

SEIZED PROPERTY [Chua v. CA (1993)]

1) Where personal property is seized under a SW, and there is reason to believe that the seizure will not anymore be followed by the filing of a criminal action, and there are conflicting claims over the seized property: • Remedies:

a) Filing of an action for replevin; b) Interpleader filed by the government in

the proper court (not necessarily the same one which issued the SW).

2) If there is still a probability that seizure will be followed by filing criminal action: • Remedy: Question the SW’s validity in the

same court that issued it, not in any other branch of the same court.

B. WARRANTLESS SEARCH

• General rule: Search of property is unreasonable unless it has been authorized by a valid search warrant. • Exception: Warrantless searches.

1. SEARCH INCIDENTAL TO AN

ARREST

• A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a SW. [Rule 126, Sec. 13]

• Scope of right to search without SW: [Nolasco v. Hon. Pano (1985)] • Searching the person arrested, in order to

find and seize things connected w/ the crime as its fruits or the means by w/c it was committed.

• Searching the place where the arrest was made.

• In People v. Leangsiri, the accused were lawfully arrested in Rm 504 of a hotel and a

warrantless search was conducted in Rm 413. The search was held to be illegal.

• In Chimel v. California, the US SC said that there is no justification for searching through all of the desks drawers or other closed and concealed areas in the room where arrest was made. SW was needed.

• When one is legally arrested for an offense, whatever is found in his possession/control may be seized and used in evidence against him. [Alvero v Dizon (1946)]

• Where the arrest was illegal, then search and seizure incidental thereto are also illegal. [People v. Aruta (1998)]

• Where a search is first undertaken, and an arrest was effected based on evidence produced by such search, both search and arrest are illegal. [Lui v. Matillano (2004)]

2. SEARCH OF MOVING

VEHICLES

• Search and seizure without warrant of vessel and aircrafts for violation of customs laws has been a traditional exception to the requirement of SW. [Roldan v. Hon. Arca (1975)]

• Rationale: The vessel can be quickly moved out of the locality before warrant can be secured.

• Nonetheless, in all cases falling under this category, there must be a showing of a PC of a violation of the law. [Caroll v. US (1924)]

• Where a vehicle is stopped and subjected to an extensive search, the warrantless search is valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality/evidence pertaining to a crime, in the vehicle to be searched. [People v. CFI (1980)]

SEARCHES CONDUCTED IN CHECKPOINTS [People v Vinecario, 2004] • They are valid as long as they are warranted by

the exigencies of public order and conducted in a way least intrusive to motorists.

• The vehicle is neither searched nor its occupants subjected to a body search (i.e. inspection of the vehicle is limited to a visual search).

• In S. Dakota v. Opperman (1976), a car had been impounded for multiple parking violations and, following standard procedure, the police inventoried the contents of the car during which marijuana was discovered in the glove compartment, it was held that the procedure did not involve an unreasonable search, absent any suggestion that the search was conducted as a mere pretext for concealing an investigatory police motive.

3. SEIZURE OF EVIDENCE IN

PLAIN VIEW

• Rationale: Authorities do not consider a mere observation of what is in plain view, a search.

• Thus, objects falling in the plain view of a police officer who has a right to be in the position to have that view are not products of a search, may be seized and may be introduced in evidence. [Harris v. US (1968)]

• Requisites: [People v. Valdez (1999)]



1) A prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties.

2) Evidence was inadvertently discovered by the police who have a right to be where they are.

3) Evidence must be immediately apparent. 4) Plain view justified mere seizure of

evidence without further search. • Limitations: [People v. Musa (1993)]

• It may not be used to launch unbridled searches and indiscriminate seizures.

• It does not extend to a general exploratory search made solely to find evidence of defendant’s guilt.

• The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.

• Even if an object is in plain view, before it can be seized without a SW, its incriminating nature must first be apparent.

• Where police officers are on the premises pursuant to a valid consent to a search, an item falling into their plain view may properly be seized even if the item is not connected with their purpose in entering.

4. SEARCH IN CONNECTION

WITH ENFORCEMENT OF

CUSTOMS LAWS

• For the enforcement of customs duties and tariff laws, the Collector of Customs is authorized to effect searches and seizure. [General Travel Services v. David (1966)]

• The Tariff Code authorizes customs officers to: • Enter, pass through or search any land,

enclosure, warehouse; • Inspect/search/examine any vessel/aircraft

and any trunk/package/box/envelope or any person on board, or stop and examine any vehicle/beast/person suspected of holding/conveying any dutiable/prohibited article introduced into the Philippines contrary to law.

• General rule: The Tariff and Customs Code does not require a warrant for such searches. • Exception: In the search of a dwelling

house, SW is required.

5. CONSENTED SEARCH

• Rationale: Right of privacy may be waived. • When one voluntarily submits to a search or

consents to have it made of his person/premises, he is precluded from later complaining thereof. [People v. Kagui Malasugui (1936)]

• When is consented search reasonable: Only if kept within the bounds of the actual consent.

A person’s consent may limit the extent/scope of a warrantless search in the same way that the specifications of a warrant limit the search pursuant thereto.

Officers may not use a person’s limited consented to get inside his home and conduct a general search.

• The US SC said that a search for a stolen TV set cannot extend to search of individual’s other papers and documents.

• On the other hand, where there is a nexus between the crime for which the evidence is sought and the item that is seized, there is no abuse of the consent to a search.

6. STOP AND FRISK THEORY

• STOP AND FRISK — A limited protective search of outer clothing for weapon. [Malacat v. CA (1997)]

• Where a police officer observes unusual conduct which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot, and that a person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiry, and where nothing in the initial stage of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of outer clothing of such persons in an attempt to discover weapons which might be used to assault him. [Terry v. Ohio]

• Under this theory, PC is not required to conduct a “stop and frisk” but, nevertheless, mere suspicion/hunch will not validate a “stop and frisk”.

• A genuine reason must exist, in light of the police officer’s experience and surrounding condition, to warrant the belief that the person has weapons concealed about him.

7. EXIGENT AND EMERGENCY

CIRCUMSTANCES

• There was a prevailing general chaos and disorder because of an ongoing coup, and the raid of the office/building was precipitated by intelligence report that said office was being used as HQ by the RAM. Also, the surveillance team before the raid was fired upon by the people inside. The raiding team had no opportunity to apply for warrant as the court then was closed. There was urgency and exigency that warrant was lawfully dispensed with. [People v. de Gracia]

XVI. PROVISIONAL REMEDIES AVAILABILITY

• Provisional remedies in civil actions, insofar as

they are applicable, may be availed of in



connection with the civil action deemed instituted with the criminal action. [Rule 127, Sec. 1]

• If the civil action is suspended on account of filing of the criminal action: The court with which the civil case is filed is not thereby deprived of its authority to issue auxiliary writs that do not go into the merits of the case. [Ramcar Inc. v. de Leon]

WHEN NOT AVAILABLE 1) Criminal action carries with it no civil liability; 2) Offended party has reserved the civil claim; 3) Offended party has waived the civil claim; 4) Offended party has already instituted a

separate civil action. WHEN ATTACHMENT IS PROPER [Rule 127, Sec. 2] • When the civil action is properly instituted in

the criminal action, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: 1) When the accused is about to abscond from

the Philippines. 2) When criminal action is based on a claim

for money/property embezzled or fraudulently misapplied or converted to the use of the accused who is a public/corporate officer, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty.

3) When the accused has concealed/removed/disposed of his property, or is about to do so.

4) When the accused resides outside the Philippines.

NOTICE AND HEARING

• Notice to adverse party and hearing are not required because they would defeat the purpose of a provisional remedy. [Mindanao Savings v. CA (1989)]

ISSUANCE AND IMPLEMENTATION OF THE

WRIT

When

Issuance of writ May be done before acquisition of jurisdiction over the accused; may be ex-parte

Enforcement of writ Only after acquisition of jurisdiction

[Gonzalez v. State Properties (2001)]



ARRAIGNMENT TO FINALTY OF JUDGMENTARRAIGNMENT TO FINALTY OF JUDGMENTARRAIGNMENT TO FINALTY OF JUDGMENTARRAIGNMENT TO FINALTY OF JUDGMENT Rules 116 - 121

MOTION TO QUASH

amend

deny

Duty of TC

go to trial without prejudice to present special defenses invoked in motion

inform of right to have own counsel ask whether he desires aid of counsel grant reasonable time to do so or assign counsel de officio

ARRAIGNMENT w/in 30 days from time court acquires jurisdiction over accused

MOTION FOR SUSPENSION OF ARRAIGNMENT

furnish with copy of complaint or information read in language or dialect known to him ask whether he pleads guilty or not guilty

PLEA

refuse/ conditional: enter not guilty

guilty: may be withdrawn before judgment becomes final

not guilty: 15 days to prepare for trial

PRE-TRIAL CONFERENCE w/in 30 days from time court acquires jurisdiction over accused

ISSUANCE OF PRE-TRIAL ORDER

COMMENCEMENT OF TRIAL w/in 30 days from receipt of pre-trial order w/in 80 days from arraignment terminate w/in 180 days

PROSECUTION EVIDENCE

DEFENSE EVIDENCE

REBUTTAL/ SUR-REBUTTAL Prosecution then Defense

SUBMISSION

grant

MOTION FOR BILL OF PARTICULARS

MOTION FOR PRODUCTION/ INSPECTION

PROVISIONAL DISMISSAL w/ consent of accused

MOTION TO DISMISS denial of right to speedy trial DEMURRER grant deny

w/o leave

w/ leave

MOTION FOR POSTPONEMENT

PROMULGATION Of Judgment

ENTRY Of Judgment

ACQUITTAL final & executory

Arguments / Memoranda

REOPENING Of Trial

MODIFICATION Of Judgment

MOTION FOR NEW TRIAL/ RECONSIDERATION w/in 15 days from promulgation

deny grant: terminate w/in 30 days

acquit

convict: new 15-day pd to appeal

deny

grant: commence w/in 30 days

APPEAL 15 days from promulgation

CONVICTION



APPEAL Where: RTC In cases decided by the MTC, MetroTC, MCTC

Where: CA In cases decided by the RTC when there are questions of both fact and law

Where: SC In cases decided by the RTC when only questions of law are involved

Where: SC When the death penalty is imposed in a lower court and the CA affirmed

Where: SC In cases decided by the CA

How: Ordinary appeal

By notice of appeal filed with the court that rendered the decision and by service of copy to adverse party

How: Petition for Review (Rule 42) In cases decided by the RTC in its appellate jurisdiction

How: Ordinary Appeal


Where: CA When the death penalty is imposed by the RTC

Where: SC

in criminal cases involving offenses for which the penalty imposed is reclusion perpetua or life imprisonment

and those other offense, which, although not so punished, arose out of the same occurence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense

How: Petition fo r Review on Certiorari

How: Automatic Review No notice required

How: Ordinary Appeal


How: Petition fo r Review on Certiorari

How: Automatic Review No notice required

Documents

CRIMINAL PROCEDURE REMEDIAL LAW INSTITUTION OF THE ...mcapordolaw.weebly.com/uploads/1/9/9/7/1997012/up08_crimpro.pdf · elements to determine venue. [Agbayani v. Sayo ] • Two places