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U N I V E R S I T Y O F S A N T O T O M A S F A C U LT Y O F C I V I L L AW
CRIMINAL PROCEDURE
CRIMINAL PROCEDURE !GENERAL MATTERS !
Criminal Procedure !The method prescribed by law for the apprehension and prosecution of persons accused of any criminal offense, and for their punishment, in case of conviction (Herrera, 2007; Pamaran, 2010). !Criminal Law v. Criminal Procedure
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!Criminal Jurisdiction !It is the authority to hear and try a particular offense and impose the punishment for it (People v. Mariano, 71 SCRA 605). !Elements of criminal jurisdiction !1. Penalty attached – The jurisdiction of a Court in criminal cases is determined
by the penalty imposable, and not by the penalty ultimately imposed (Guevarra v. Almodovar, 169 SCRA 476).
2. Nature of the offense charged. 3. Territorial jurisdiction over the place of commission of the crime. !The absence of any of these elements may be challenged by an accused at any stage of the proceedings in the court below or on appeal. Failing to comply with
Criminal Law Criminal Procedure
Substantive Remedial
It declares what acts are punishable.
It provides how the act is to be
punished.
It defines crimes, treats of their nature and provides
for their punishment.
It provides for the method by which a person accused of a
crime is arrested, tried or punished.
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anyone of them, the resulting judgment is void (Uy v. Court of Appeals, 276 SCRA 374). !JURISDICTION OVER THE SUBJECT MATTER V. JURISDICTION OVER THE PERSON
OF THE ACCUSED !Jurisdiction
over the Subject Matter
Jurisdiction over the
Person of the Accused
Derived from l a w. I t c a n n e v e r b e acquired solely by consent of the accused.
M a y b e acquired by consent of the accused or by w a i v e r o f objections.
Objection that the court has no j u r i s d i c t i o n o v e r t h e subject matter may be made at any stage of the proceeding, and t he r i g h t t o m a k e s u c h o b j e c t i o n i s never waived.
If he fails to m a k e h i s objection on time, he will be deemed to have waived it.
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!REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION
Requisites for a valid exercise of criminal jurisdiction !1. Jurisdiction over the subject matter – This is the power to hear and
determine cases of general class to which the proceeding in question belongs. The offense, by virtue of the imposable penalty or its nature, is one which the court is by law authorized to take cognizance of.
2. Jurisdiction over the territory – The offense must have been committed or any of its essential ingredients took place within the territorial jurisdiction of the court. It cannot be waived and where the place of the commission was not specifically charged, the place may be shown by evidence.
3. Jurisdiction over the person of the accused – The person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. !
NOTE: GR: Questions of jurisdiction may be raised at any stage of the proceedings. !XPN: The party raising the question is guilty of estoppels or laches (Tijam v. Sibonghanoy, 23 SCRA 29). !Tests to determine jurisdiction of the court in criminal cases !1. The geographical limits of its territory;
J u r i s d i c t i o n o v e r t h e subject matter is determined u p o n t h e a l l e g a t i o n s made in the c o m p l a i n t , irrespective of w h e t h e r t h e p l a i n t i f f i s entitled or not, to recover upon t h e c l a i m a s s e r t e d t h e r e i n , a matter resolved only after and as a result of the trial.
Ju r i s d i c t i on o v e r t h e person of the a c c u s e d i s acqui red by v o l u n t a r y appearance or surrender of the accused or by his arrest.
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2. Determined by the allegations in the complaint or information not by the results of proof or by the trial court’s appreciation of the evidence presented;
3. Determined by the nature of the offense and/ or penalty attached thereto and not what may be meted out after trial; and
4. Determined by the law in force at the time of the institution of the criminal action and not at the time of its commission. Once vested it CANNOT be withdrawn by: a. Subsequent valid amendment of the information (People v. Chipeco, G.R.
No. 1968, March 31, 1964); or b. Subsequent statutory amendment of the rules of jurisdiction unless the
amendatory law expressly provides otherwise or is construed that it is intended to operate to actions pending before its amendment, in which case the court where the action is pending is ousted of jurisdiction and the pending action will have to be transferred to the court having jurisdiction by virtue of the amendatory law (Binay v. Sandiganbayan GR No. 120011, October 1, 1999). !
JURISDICTION OF CRIMINAL COURTS !Jurisdiction !Determined by the allegations in the complaint or information not by the results of proof or by the trial court’s appreciation of the evidence presented (Buaya v. Polo, G.R. No. 75097, January 26, 1989). !Determination of jurisdiction when fine is the only penalty !In cases where the only penalty provided by law is a fine, the amount thereof shall determine the jurisdiction of the court: 1. The RTC has jurisdiction where the fine is more than Php 4,000 including
offenses committed by public officers and employees in relation to their office, where the amount of the fine does not exceed Php 6,000 (SC Court Circular No. 09-94) except in cases of criminal negligence involving damage to property which falls under the exclusive original jurisdiction of the MTC.
2. The MTC has jurisdiction where the fine is Php 4,000 or less. !NOTE: Accessory penalties and civil liabilities are no longer determinative of criminal jurisdiction. !Court having jurisdiction on continuing offenses !Continuing offenses are those consummated in one place, yet by the nature of the offense, the violation of the law is deemed continuing (e.g. estafa and libel). As such, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. But the court which first acquires jurisdiction excludes the other courts.
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!Court having jurisdiction over crimes punishable by destierro !Where the imposable penalty is destierro, the case falls within the exclusive jurisdiction of the MTC, considering that in the hierarchy of penalties under Art. 71 of the RPC, destierro follows arresto mayor which involves imprisonment (People v. Eduarte, G.R. No. 88232, February 26, 1990). !Q: In complex crimes, how is the jurisdiction of a court determined? (2003 Bar Question) !A: It is lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable of an offense forming part of the complex crime. It must be prosecuted integrally and must not be divided into component offenses which may be made subject of multiple informations brought in different courts (Cuyos v. Garcia, G.R. No. L-46934, Apr. 15, 1988). !Q: Photokina Marketing Corporation filed a complaint for libel against Justice Alfredo Benipayo, then chairman of the COMELEC. The Information against Justice Benipayo was filed before the RTC despite the challenge on the jurisdiction of the Office of the City Prosecutor over his person being a public official. Benipayo contends that it is the Sandiganbayan who has jurisdiction. Do the Sandiganbayan and RTC have concurrent jurisdiction over libel or written defamation cases? !A:No. The grant to the Sandiganbayan of jurisdiction over offenses committed in relation to office, did not divest the RTC of its exclusive and original jurisdiction to try written defamation cases regardless of whether the offense is committed in relation to office (People v. Benipayo, G.R. Nos. 154473 and 155573, April 24, 2009). !
WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION !Q: Will injunction lie to restrain the commencement of a criminal action? Explain. (1999 Bar Question) !A: GR: Injunction cannot lie to restrain the commencement of a criminal action because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society [Asutilla vs. PNB, 225 Phil. 40, 43 (1986)]. !XPNs: 1. To afford adequate protection to the constitutional rights of the accused; 2. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions; 3. When there is a prejudicial question which is subjudice;
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4. When the acts of the officer are without or in excess of authority; 5. Where the prosecution is under an invalid law, ordinance or 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 lust for vengeance; 10.When there is clearly no prima facie case against the accused and a motion
to quash on that ground has been denied; and 11.Preliminary injunction has been issued by the SC to prevent the threatened
unlawful arrest of petitioners (People of the Philippines vs. Joseph V. Grey, G.R. No. 180109, July 26, 2010). !
PROSECUTION OF OFFENSES RULE 110 !
CRIMINAL ACTIONS, HOW INSTITUTED
!Criminal action !One by which the State prosecutes a person for an act or omission punishable by law. !Institution of criminal action !Criminal actions are instituted by: 1. Filing the complaint with the proper officer for the purpose of conducting the
requisite preliminary investigation for offenses where a preliminary investigation is required;
2. For all other offenses, by filing the complaint or information directly with the MTC and MCTC, or the complaint with the office of the prosecutor (Sec. 1, Rule 110); !
NOTE: For Metro Manila and other chartered cities, the complaint shall be filed with the prosecutor regardless of the imposable penalty (Sec 1b, Rule 110), while cases falling within the jurisdiction of the RTC are always commenced by information filed by the prosecutor. !Direct filing of a complaint or information with the RTC or MeTC or other chartered cities !There is no direct filing of an information or complaint with the RTC because its jurisdiction covers offenses which require preliminary investigation. !There is likewise no direct filing with the MeTC because in Manila, including other chartered cities. As a rule, the complaint shall be filed with the office of
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the prosecutor, unless otherwise provided by their charters. In case of conflict between a city charter and a provision of the Rules of Court, the former, being substantive law, prevails. !Effect of institution of a criminal action !GR: It interrupts the running of the period of prescription of the offense charged (Sec. 1, Rule 110). !
NOTE: Notably, the aforequoted article (Art. 91, RPC), in declaring that the prescriptive period “shall be interrupted by the filing of the complaint or information,” does not distinguish whether the complaint is filed for preliminary examination or investigation only or for an action on the merits. Thus, in Francisco v. CA and People v. Cuaresma, this Court held that the filing of the complaint even with the fiscal’s office suspends the running of the statute of limitations(Reodica v. CA, G.R. No. 125066. July 8, 1998). !
XPN: Prescriptive periods of violations of special laws and municipal ordinances governed by Act 3326 (An Act to Establish Periods of Prescription for Violations Penalized by Special Laws and Municipal Ordinances and to Provide When Prescription shall Begin to Run) shall only be interrupted by the filing of a complaint or information in court. The filing of a complaint with the prosecutor or the proper officer for purposes of conducting a preliminary investigation will not interrupt the prescriptive period (Zaldivia v. Reyes, Jr., G.R. No. 102342, July 3, 1992). !Q: In offenses punishable by imprisonment not exceeding 6 years, may the offended party go directly to court to file a criminal action? !A: GR: No. Before a complaint is filed in court, there should have been a confrontation between the parties before the Lupon chairman. The Lupon secretary must certify that no conciliation or settlement was reached, attested to by the Lupon chairman. The complaint may also be filed if the settlement is repudiated by the parties. !XPNs: 1. Where the accused is under detention; 2. Where a person has otherwise been deprived of personal liberty calling for
habeas corpus proceedings; 3. Where actions are coupled with provisional remedies; and 4. Where the action may be barred by the statute of limitations. !Prescriptive periods of cases falling under the authority of the Lupon !The prescriptive period shall be suspended from the time of the filing of complaint with the Punong Barangay which suspension shall not exceed 60 days.
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The prescriptive period shall resume upon receipt of the certificate of repudiation or certificate to file action [Sec. 410(c), LGC]. !
WHO MAY FILE THEM, CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO !Offense or crime that cannot be prosecuted de officio !These are crimes or offenses which cannot be prosecuted except on complaint filed by the offended party or if the offended party is a minor, by the parents, grandparents or the guardian. !NOTE: These are also known as private crimes. !Who may file !GR: All criminal actions initiated by complaint or information are filed by the prosecutor. !XPNs: Private crimes which may only be prosecuted by a complaint filed by the private offended party, i.e.:
1. Adultery and concubinage; 2. Seduction, abduction and acts of lasciviousness; and 3. Criminal actions for defamation imputing the abovementioned offenses
(Sec. 5, Rule 110). !Party who may legally file a complaint for adultery or concubinage !Only the offended spouse may file a complaint for adultery or concubinage(Sec. 5, Rule 110). !NOTE: The offended spouse cannot institute a criminal action for adultery without including the guilty parties if both are alive; or if the offended party has consented to the offense or pardoned the offenders(Sec. 5, Rule 110). If the complainant has already been divorced, he can no longer file the complaint (Pilapil v. Somera, G.R. No. 80116, June 30, 1989). This is considered as lack of status. !Parties who may file a complaint for seduction, abduction or acts of lasciviousness !1. The offended party; 2. Parents of the offended party; 3. Grandparents of the offended party; or 4. Guardian of the offended party(Sec. 5, Rule 110). !NOTE: Such crimes cannot be prosecuted if the offender has been expressly pardoned by any of the abovementioned parties(Sec. 5, Rule 110). !
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Instances when the State may initiate the action for seduction, abduction or acts of lasciviousness in behalf of the offended party !1. When the offended party dies or becomes incapacitated before a complaint is
filed; or 2. The offended party has no known parents, grandparents or guardian (Sec. 5,
Rule 110). !NOTE: This is pursuant to the doctrine of parens patriae. !Persons who may file a Complaint on cases of unlawful acts in RA 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act) !1. Offended party 2. Parents or guardians 3. Ascendant or collateral relative within the third degree of consanguinity 4. Officer, social worker or representative of a licensed child-caring institution 5. Officer or social worker of the Department of Social Welfare and Development 6. Barangay chairman; or 7. At least 3 concerned, responsible citizens where the violation occurred (Sec.
27, RA 7160). !Filing a complaint by a minor for Seduction, Abduction, or Acts of Lasciviousness !GR: The offended party, even if a minor, has the right to initiate the prosecution of such offenses independently of his parents, grandparents or guardian. !XPNs: If the minor is: 1. Incompetent; or 2. Incapable of doing so (Sec. 5, Rule 110) !NOTE: If the minor fails to file a complaint, his parents, grandparents or guardian may file the same. The right granted to the latter shall be excusive and successive in the order herein provided (Sec. 5, Rule 110). !Q: Fey, a minor orphan was subjected to acts of lasciviousness performed by her uncle Polo. She informed her grandparents but was told not to file charges. Fey now asks you as counsel how she could make her uncle liable. What would your advice be? Explain. Suppose the crime committed against Fey by her uncle is rape, witnessed by your mutual friend Isay. But this time, Fey was prevailed upon by her grandparents not to file charges. Isay asks you if she can initiate the
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complaint against Polo. Would your answer be the same? Explain. (2000 Bar Question) !A: The minor may file the complaint independently of her grandparents, because she is not incompetent or incapable of doing so upon grounds other than her minority (Sec. 5, Rule 110). !Since rape is now classified as a crime against persons under the Anti-Rape Law of 1997 or RA 8353, Isay can initiate the complaint against Polo. !Pardon given by a minor in cases of seduction, abduction or acts of lasciviousness !The pardon to be effective as to prevent prosecution of the accused must be given by both parents and the offended party (U.S. v. Luna, 1 Phil. 360). !Pardon v. Consent !
!Parties who can give pardon !
Pardon Consent
Refers to past acts
R e f e r s t o future acts
I n o r d e r t o a b s o l v e t h e accused from l i a b i l i t y, i t m u s t b e ex tended to both offenders
I n o r d e r t o a b s o l v e t h e accused from liability, it is sufficient even if granted only t o t h e o f f e n d i n g spouse
Crimes Parties who can give pardon
a. Concubinage and adultery Only the offended spouse, not otherwise incapacitated.
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!NOTE: The pardon shall be given before filing of the criminal complaint in court. Pardon effected after the filing of the complaint in court does not prohibit the continuance of the prosecution of the offense. !Subsequent marriage of the accused and offended party !GR: The subsequent marriage between the party and the accused, even after the filing of the complaint, extinguishes the criminal liability of the latter, together with that of the co-principals, accomplices and accessories. !XPNs: 1. Where the marriage was invalid or contracted in bad faith in order to escape
criminal liability; 2. In “private libel” or the libelous imputation of the commission of the crimes
of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness and in slander by deed; and
3. In multiple rape, in so far as the other accused in the other acts of rape committed by them are concerned. !
Effect of desistance of the offended party in private crimes !It does not bar the People from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity. !GR: Since it is the State who is the real offended party in a criminal case, it is the prosecutor or the Ombudsman as the case may be, or the Solicitor General in cases before the CA or SC, who has the personality and authority to prosecute and file a petition in behalf of the State. !
b. Seduction, abduction and acts of lasciviousness:
1. The offended minor, i f with sufficient discretion, can validly pardon the accused by herself if she has no parents or where the accused is her own father and her mother is dead;
2. The parents, grandparents or guardian of the offended minor, in that order, extend a valid pardon in said crimes without the conformity of the offended party, even if the latter is a minor; or
3. If the offended woman is of age and not otherwise incapacitated, only she can extend a valid pardon.
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XPN: An offended party in a criminal case has sufficient personality to file a special civil action for certiorari, even without the imprimatur of the State. In so doing, the complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in the name of the said complainant (Perez v. Hagonoy Rural Bank, Inc., G.R. No. 126210, March 9, 2000). !Effect of death of the offended party to the criminal action !1. If prior to the filing of a case in court, a complaint was already filed by the
offended party with the prosecutor, the death of the complainant will not be sufficient justification for the dismissal of the information (People v. Ilarde, G.R. No. L-57288, April 30, 1984); or
2. During the pendency of the case, the death of the complainant will not extinguish the criminal liability of the accused whether total or partial (Donio-Teves v. Vamenta, G.R. No. L-38308, December 26, 1984). !
CONTROL OF PROSECUTION !Prosecution of criminal actions !GR: The public prosecutor shall prosecute, direct and control all criminal actions commenced by a complaint or information. !XPN: The private prosecutor (private counsel) may prosecute the case provided that:
1. The public prosecutor has heavy work schedule; or 2. There is lack of public prosecutors; 3. The private prosecutor must be authorized in writing by the Chief
Prosecution Office or Regional State Prosecution; and 4. Such will be subject to the court’s approval (Sec. 5, Rule 110). !
Prescription of the authority of the private prosecutor !The authority of the private prosecutor shall continue until the end of the trial unless the authority is revoked or withdrawn (Sec. 5, Rule 110). !Matters within the control and supervision of the prosecutor !1. What charge to file; 2. Whom to prosecute; 3. Manner of prosecution; and 4. Right to withdraw information before arraignment even without notice and
hearing. !
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NOTE: Once a complaint or information is filed in Court, any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation (Crespo v. Mogul, GR L-53373 June 30, 1987). !Matters within the control of the Court after the case is filed !1. Suspension of arraignment; 2. Reinvestigation; 3. Prosecution by the fiscal; 4. Dismissal of the case; and 5. Downgrading of offense or dropping of accused even before plea. !Limitations on the Court’s power of control !1. Prosecution is entitled to notice of hearing; 2. Prosecution’s stand to maintain prosecution should be respected by the court 3. The court must make its own independent assessment of evidence in granting
or dismissing motion to dismiss. Otherwise, the judgment is void. 4. Court has authority to review the Secretary of Justice’s recommendation and
reject it if there is grave abuse of discretion (Villanueva v. Secretary of Justice, 475 SCRA 511). !
SUFFICIENCY OF COMPLAINT OR INFORMATION !Information v. Complaint !
INFORMATION COMPLAINT
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!NOTE: The complaint contemplated under Sec. 3 is different from the complaint filed with the Prosecutor’s office. It refers to the one filed in court for the commencement of the criminal prosecution i.e. private crimes. !Form of a valid complaint or information !1. In writing; 2. In the name of the People of the Philippines; and 3. Against all persons responsible for the offense involved (Sec. 2, Rule 110). !Sufficiency of a Complaint or Information !It is sufficient if it states the: 1. Name of the accused; 2. Designation of the offense given by the statute; 3. Acts or omissions complained of as constituting the offense; 4. Name of the offended party; 5. Approximate date of the commission of the offense; and 6. Place where the offense was committed (Sec. 6, Rule 110). !NOTE: In case of variance between the complaint filed by the offended party and the information in crimes against chastity, the complaint controls. !Name of the accused !The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If the name
Information is an accusation i n w r i t i n g c h a r g i n g a person with an offense, subscribed by t h e p r o s e c u t o r and filed by him with the court (Sec. 4, Rule 110).
Complaint is a sworn written s t a t e m e n t c h a r g i n g a person with an o f f e n s e , subscribed by the offended p a r t y , a n y peace officer, or other public officer charged w i t h t h e enforcement of the law violated (Sec. 3).
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cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown (Sec. 7, Rule 110). !NOTE: If the true name of the accused is thereafter disclosed or appears in some other manner, such true name shall be inserted in the information or complaint in record (Ibid.). !When an offense is committed by more than one person, all of them shall be included in the complaint or information (Sec. 6, Rule 110). !Mistake in the name of the accused !A mistake in the name of the accused is not equivalent and does not necessarily amount to a mistake in the identity of the accused especially when sufficient evidence is adduced to show that the accused is pointed to as one of the perpetrators of the crime (People v. Amodia, GR No. 173791, April 7, 2009). !Name of the offended party !The complaint or information must state the name and surname of the persons against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of identifying him, he must be described under a fictitious name. !1. In crimes against property, if the name of the offended party is unknown, the
property must be described with such particularity as to properly identify the particular offense charged.
2. If the true name of the offended party is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information in record.
3. If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or may be identified, without need of averring that it is a juridical person (Sec. 12, Rule 110). !
Particularity of the date of the commission of the offense in the complaint or information !GR: It is not required. It suffices that the allegation approximates or be as near the actual date when the offense was committed (Sec. 11, Rule 110). !XPN: If the date of the commission of the offense constitutes an essential element of the offense (e.g. infanticide, abortion, bigamy) (Sec. 11, Rule 110). !NOTE: The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for bill of particulars under Sec. 10,
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Rule 116; the failure to move for specification or quashal of the information on any of the grounds provided by the Rules deprives the accused 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 the accused with a definite crime. Besides, the exact date of the commission of the crime is not an essential element of the crime (People v. Elpedes, G.R. Nos. 137106-07, January 31, 2001). !Place of the commission of the crime !GR: The complaint or the information is sufficient if it can be understood from its allegation that the offense was committed or some its essential ingredients occurred at some place within the jurisdiction of the court. !XPN: When the place of commission constitutes an essential element of the offense charged or is necessary for its identification (e.g. trespass to dwelling, destructive arson, robbery in an inhabited place) (Sec. 10, Rule 110). !
DESIGNATION OF OFFENSE !Designation of the offense !The designation of the offense given by the statute must be stated in the complaint or information with the averment of acts or omissions constituting the offense and specify the qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it (Sec. 8, Rule 110). !Q: Accused was charged with the offense of Estafa through Falsification of Public Documents under Art. 315 in relation to Art. 171 of the RPC in an Information filed by the prosecutor before the RTC of Quezon City. Accused assailed the Information claiming that the Information is invalid because the word "fraud" or "deceit" was not alleged in the Information. Decide the case. !A: Any error in the Information, with regard to the specification of the particular mode of estafa, allegedly committed by petitioners will not result in its invalidation because the allegations therein sufficiently informed petitioners that they are being charged with estafa through falsification of public document.
!The Revised Rules of Criminal Procedure provides that an information shall be deemed sufficient if it states, among others, the designation of the offense given by the statute and the acts of omissions complained of as constituting the offense. However, the Court has clarified in several cases that the designation of the offense, by making reference to the section or subsection of the statute
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punishing, it is not controlling; what actually determines the nature and character of the crime charged are the facts alleged in the information (Batulanon v. People, G.R. No. 139857, September 15, 2006). !Conflict between the designation of the crime and the recital of the facts constituting the offense !The title of the information or designation of the offense is not controlling. It is the actual facts recited in the information that determines the nature of the crime (Santos v. People, G.R. No. 77429, January 29, 1990). !Q: May the accused be convicted of a crime more serious than that named in the information? !GR: Yes. The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the information and its commission is established by evidence (Buhat v. CA, G.R. No. 120365, December 17, 1996). !XPN: An accused could not be convicted under one act when he is charged with a violation of another if the change from the statute to the other: 1. Involves change in the theory of the trial; 2. Requires of the defendant a different defense; or 3. Surprises the accused in any way (U.S. v. Panlilio, G.R. No. L-9876, December
8, 1914). ! CAUSE OF ACCUSATION
!Cause of accusation !The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what the offense is being charged as well as the qualifying and aggravating circumstances (Sec. 9, Rule 110). !Purposes of requiring that every element must be alleged !1. To enable the court to pronounce the proper judgment; 2. To furnish the accused with such a description of the charge as to enable him
to make a defense; and 3. As a protection against further prosecution for the same cause (Herrera,
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Effect when one or more elements of the offense have NOT been alleged in the Information !The accused cannot be convicted of the offense charged, even if the missing elements have been proved during the trial. Even the accused’s plea of guilty to such defective information will not cure the defect, nor justify his conviction of the offense charged. !Statement of the qualifying and aggravating circumstances in the Information !The qualifying and aggravating circumstances must be specified in the information. They must not only be proven but they must also be alleged, otherwise, they should not be considered (Catiis v. CA, G.R. 153979, February 9, 2006). !Negative Averments !GR: Where the statute alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately, but prescribes certain limitation or exceptions from its violation, the complaint or 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 right which the accused has to prove. !XPN: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violations are 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 (Herrera, 2007) !Matter/s to be alleged if the crime is “committed in relation to his office” !Mere allegation in the information that the offense was committed by the accused public officer in relation to his office is not sufficient. The phrase is merely “a conclusion of law,” not a factual averment that would show close intimacy between the offense charged and the discharge of the accused’s official duties. What is controlling is the specific actual allegations in the information (Lacson v. Executive Secretary, G.R. No. 128006, January 20, 1999). !NOTE: An offense is deemed committed in relation to public office when the “office” is a constituent element of the offense. The test is whether the offense cannot exist without the office (Crisostomo v. Sandiganbayan, G.R. No. 152398, April 14, 2005). The offense need not be connected with official duties. It is enough that it is in relation to office (Lecaroz v. Sandiganbayan, 128 SCRA 324). !
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DUPLICITY OF OFFENSES; EXCEPTION !GR: A complaint or information must charge only one offense. !XPN: When the law prescribes a single punishment for various offenses (Sec. 13, Rule 110), e.g.: 1. Complex crimes; 2. Special complex crimes; 3. Continuous crimes or delicto continuado; 4. Crimes susceptible of being committed in various modes; and 5. Crimes of which another offense is an ingredient. !NOTE: Should there be duplicity of offense in the information unless a single punishment for various offenses is prescribed, the accused must move for the quashal of the same before arraignment (Sec. 3, Rule 117). Otherwise, he is deemed to have waived the objection and may be found guilty of as many offenses as those charged and proved during the trial (Sec. 3, Rule 120). !
AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION !Amendment v. Substitution !
Amendment Substitution
M a y i n v o l v e either formal or substantial changes
I n v o l v e s s u b s t a n t i a l change from the o r i g i na l charge
A m e n d m e n t before the plea is entered can b e e f f e c t e d without leave of court.
It must be with leave of court as the original information has t o b e dismissed.
An amendment as to form will n o t r e q u i r e a n o t h e r p r e l i m i n a r y invest igat ion and retaking of p l e a o f t h e accused.
Substitution of t h e i n f o r m a t i o n entails another p r e l i m i n a r y invest igation and plea to the n e w information.
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!Matters subject to amendment !Only valid information may be amended. An information filed before the effectivity of the law punishing the offense may not be amended after the law had come into effect (Herrera, 2007) !Tests to determine the propriety of amendment after plea !1. Whether a defense under the information as it originally stood would be
available after the amendment is made; and 2. Whether any evidence defendant might have would be equally applicable to
the information in the one form as in the other. An amendment to an information which does not change the nature of the crime alleged therein
An amended i n f o r m a t i o n refers to the same offense charged in the o r i g i n a l information or to an offense w h i c h n e c e s s a r i l y includes or is n e c e s s a r i l y included in the original charge, h e n c e s u b s t a n t i a l amendments to the information after the plea has been taken c a n n o t b e made over the object ion of the accused, f o r i f t h e original would be withdrawn, t he accu sed could invoke d o u b l e jeopardy.
Re q u i r e s o r p r e s u p p o s e s that the new i n f o r m a t i o n i n v o l v e s a d i f f e r e n t offense which d o e s n o t include or is not necessarily included in the o r i g i n a l charge; hence the accu sed cannot claim d o u b l e jeopardy.
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does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance (Ricarze v. CA, G.R. No. 160451, Febraury 9, 2007). !
NOTE: After plea, by leave and at the discretion of the court, amendments in form, but not substance may be allowed as long as it will not prejudice the accused. !Formal Amendment !A formal amendment is made when: 1. It neither affects nor alters the nature of the offense charged; or 2. The charge does not deprive the accused of a fair opportunity to present his
defense; or 3. It does not involve a change in the basic theory of the prosecution. !NOTE: The following have been held to be mere formal amendments: 1. New allegations which relate only to the range of the penalty that the court might
impose in the event of conviction; 2. An amendment which does not charge another offense different or distinct from
that charged in the original one; 3. Additional allegations which do not alter the prosecution’s theory of the case so as
to cause surprise to the accused and affect the form of defense he has or will assume;
4. An amendment which does not adversely affect any substantial right of the accused; and
5. An amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which adds nothing essential for conviction for the crime charged (Ricarze v. CA, G.R. No. 160451, February 9, 2007). !
Effect of a formal amendment !There is no need for another preliminary amendment and retaking of the plea of the accused if such were already conducted. Substantial amendment There is an amendment in substance where it covers matters involving the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. !NOTE: After arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused (Ricarze v. CA, G.R. No. 160451, February 9, 2007).Substantial amendment after the plea has been taken cannot be made over the objection of the accused, for if the original would be withdrawn, the accused could invoke double jeopardy (Pacoy v. Cajical, G.R. No. 1574772, September 28, 2007). !
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Q: An Information for Homicide was filed in the RTC against petitioner. Upon arraignment, petitioner, duly assisted by counsel de parte, pleaded not guilty to the charge of Homicide. However, on the same day and after the arraignment, the respondent judge issued another Order directing the trial prosecutor to correct and amend the Information to Murder in view of the aggravating circumstance of disregard of rank alleged in the Information which public respondent registered as having qualified the crime to Murder. Acting upon such Order, the prosecutor entered his amendment by crossing out the word “Homicide” and instead wrote the word “Murder” in the caption and in the opening paragraph of the Information. The accusatory portion remained exactly the same as that of the original Information for Homicide. Petitioner argued that the amendment and/or correction ordered by the respondent judge was substantial; and under Sec. 14, Rule 110 of the Revised Rules of Criminal Procedure, this cannot be done, since petitioner had already been arraigned and he would be placed in double jeopardy. Decide the case. !A: In the present case, the change of the offense charged from Homicide to Murder is merely a formal amendment and not a substantial amendment or a substitution. There was no change in the recital of facts constituting the offense charged or in the determination of the jurisdiction of the court. !Sec. 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the complaint or information. Since the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide, there could not be any effect on the prosecution's theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner (Pacoy v. Cajigal, G.R. No. 157472, September 28, 2007). !Procedure of amendment !
When
Made
Kind of amendment to be made
How amendme
nt is made
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!Amended in the Information which downgrades the nature of the offense !The prosecution should file a motion for leave of court with notice to the offended party. This is for the protection of the interest of the offended party and to prevent possible abuse by the prosecution. !
Before plea
1. F o r m a l amendment
2. Substantial amendment
W i t h o u t leave of court
3. Substantial amendment which: a.Downgrades the nature of t h e o f f e n s e charged; or
b.Excludes a n y accused from the complaint o r information
1.Upon a mot i on by t he prosecutor;
2.W i t h n o t i c e t o t h e accused; and
3.W i t h leave of court
After p l e a a n d during the trial
F o r m a l amendment
W i t h leave of court; and w i t h o u t c a u s i n g prejudice t o t h e rights of t h e a c c u s e d (Sec. 14, Rule 110).
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Amendment in the Information which changes the nature of the crime after arraignment !GR: No. The prosecutor can no longer amend the information after arraignment as it would prejudice the substantial rights of the accused. !XPN: When a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, the prosecutor, with leave of court, may amend the information to allege such supervening fact and upgrade the crime charged to the higher crime brought about by such supervening fact. !Q: Arthur was accused of homicide for the killing of Bebang. During the trial, the public prosecutor received a copy of the marriage certificate of Arthur and Bebang. Can the public prosecutor move for the amendment of the information to charge Arthur with the crime of parricide? !Suppose instead of moving for the amendment of the information, the public prosecutor presented in evidence the marriage certificate without objection on the part of the defense, could Arthur be convicted of parricide?(1997 Bar Question) !A: 1. No. The information cannot be amended to change the offense charged from
homicide to parricide. Firstly, the marriage is not a supervening fact arising from the act constituting the charge of homicide. Secondly, after plea, amendments may be done only as to matters of form. The amendment is substantial because it will change the nature of the offense (Dionaldo v. Dacuycuy, G.R. No. L-55357, October 30, 1981). !
2. No. Arthur can be convicted only of homicide not of parricide which is a graver offense. The accused has the constitutional rights of due process and to be informed of the nature and the cause of the accusation against him. !
Period when substitution is proper !If it appears anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused shall not be placed in double jeopardy (Sec. 14, Rule 110). Limitations on Substitution !1. No judgment has yet been rendered; 2. The accused cannot be convicted of the offense charged or of any other
offense necessarily included therein; and 3. The accused would not be placed in double jeopardy (Herrera, 2007)
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!VENUE OF CRIMINAL ACTIONS
!Venue for the Institution of Criminal Actions !GR: Subject to existing laws, criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or any of its essential ingredients occurred (Sec. 15, Rule 110). !XPNs: 1. An offense was committed on a railroad train, in an aircraft, or in any other
public or private vehicle in the course of trip – The criminal action may be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the place of departure and arrival [Sec. 15 (b), Rule 110];
2. Where the offense is committed on board a vessel on its voyage – The criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally accepted principles of international law[Sec. 15(c), Rule 110];
3. Felonies under Art. 2 of the RPC – Shall be cognizable by the proper court where the criminal action was first filed [Sec. 15(d), Rule 110];
4. Continuous or transitory crimes – Such offenses may be tried by the court of any jurisdiction wherever the offender may be found, but the complainant should allege that the offense was committed within the jurisdiction of the court (Herrera, 2007);
5. Piracy – The venue of piracy, unlike all other crimes, has no territorial limits. It is triable anywhere;
6. Libel – The action may be instituted at the election of the offended or suing party in the municipality or city where: a. The libelous article is printed and first published; b. If one of the offended parties is a private individual, where said private
individual actually resides at the time of the commission of the offense; c. If the offended party is a public official, where the latter holds office at
the time of the commission of the offense; 7. BP 22 cases – The criminal action shall be filed at the place where the check
was dishonored or issued. In case of crossed check, the place of the depositary or the collecting bank. !
Q: Where is the proper venue for the filing of information in the following cases? 1. The theft of a car in Pasig City which was brought to Obando, Bulacan,
where it was cannibalized. 2. The theft by Carl, a bill collector of ABC Company, with main offices in
Makati City, of his collections from customers in Tagaytay City. In the
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contract of employment, Carl was detailed to the Calamba branch office, Laguna, where he was to turn in his collections.
3. The malversation of public funds by a Philippine consul detailed in the Philippine Embassy in London (1997 Bar Question) !
A: 1. The proper venue is in Pasig City where the theft of the car was committed,
not in Obando where it was cannibalized. Theft is not a continuing offense (People v Mercado, G.R. No. L-2760, February 11, 1950). !
2. If the crime charged is theft, the venue is in Calamba where he did not turn in his collections. If the crime of Carl is estafa, the essential ingredients of the offense took place in Tagaytay City where he received his collections, in Calamba where he should have turned in his collections, and in Makati City where the ABC Company was based. The information may therefore be filed in Tagaytay City or Calamba or Makati which have concurrent territorial jurisdiction (Catingub v. CA, G.R. No. L-29365, March 25, 1983). !Alternative Answer: The information may be filed either in Calamba or in Makati City, not in Tagaytay City where no offense had as yet been committed. !
3. The proper court is the Sandiganbayan which has jurisdiction over crimes committed by a consul or higher official in the diplomatic service [Sec. 4(c), PD 1606, as amended by RA 7975]. The Sandiganbayan is a national court (Nunez v. Sandiganbayan, G.R. Nos. L-50581 - 50617, January 30 1982). It has only one venue at present, which is in Metro Manila, until RA 7975, providing for two other branches in Cebu and in Cagayan de Oro, is implemented. !Alternative Answer: Assuming that the Sandiganbayan has no jurisdiction, the proper venue is the first RTC in which the charge is filed [Sec. 15 (d), Rule 110]. !
Q: May conviction be had even if it appears that the crime was committed not in the place alleged in the Information? !GR: Yes. Provided that the place of actual commission was within the jurisdiction of the court. !XPN: The particular place of commission is an essential element of the offense charged. !Q: Mike was charged with libel. The information however failed to allege that complainant Roy was a resident of the place over which the court has jurisdiction. May Mike file a motion to quash based on such defect in the Information?
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!A: Yes. In libel cases, failure to allege in the information that the offended party is a resident of the place over which the court where the information was filed has jurisdiction and the fact that the articles were first published and printed in said place is a substantial defect that can be a proper ground for a motion to quash on the ground of lack of jurisdiction. Such defect is not merely as to form which can be properly amended (Agustin v. De Leon, G.R. No.164938, August 22, 2005). !
INTERVENTION OF OFFENDED PARTY
!Intervention of the offended party in criminal action !GR: The offended party has the right to intervene by counsel in the prosecution of the criminal action where the civil action for the recovery of civil liability is instituted in the criminal action pursuant to Rule 111 (Sec. 16, Rule 110). !XPNs: 1. From the nature of the crime and the law defining or punishing it, no civil
liability arises in favor of the offended party, e.g. sedition, rebellion, treason (crimes against national security);
2. The offended party waived the right to civil indemnity; or 3. The offended party had already instituted separate action. !Q: Gary requested the Ombudsman to investigate the petitioner, Retired Brig. Gen. Jose S. Ramiscal, Jr., then President of the Armed Forces of the Philippines Retirement and Separation Benefits System, (AFP-RSBS) together with 27 other persons for allegedly conspiring in misappropriating AFP-RSBS funds and in defrauding the government millions of pesos in capital gains and documentary stamp taxes. Special Prosecutor Joy C. Rubillar-Arao filed 24 separate Informations with the Sandiganbayan against the petitioner and several other accused. Ramiscal filed an Urgent Manifestation and Motion to Suspend Proceedings, because of the pendency of his motion for reinvestigation with the Office of the Ombudsman. Pending resolution of the aforementioned motions, the law firm of Albano & Associates filed a “Notice of Appearance” as private prosecutors. The notice of appearance was apparently made conformably to the letter-request of Retired Commodore Ismael Aparri and Retired Brig. Gen. Pedro Navarro, who are members Association of Generals and Flag Officers, Inc. (AGFOI). Petitioner opposed the appearance of the law firm of Albano & Associates as private prosecutors, contending that the charges brought against him were purely public crimes which did not involve damage or injury to any private party; thus, no civil liability had arisen.Is the contention of petitioner tenable? !A: Yes. The court agreed with the contention of the petitioner that the AGFOI,
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and even Commodore Aparri and Brig. Gen. Navarro, are not the offended parties envisaged in Sec. 16, Rule 110, in relation to Sec. 1, Rule 111 of the Revised Rules of Criminal Procedure. Under Sec. 5, Rule 110 of the Rules, all criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and control of the public prosecutor. The prosecution of offenses is a public function.
!Under Sec. 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice. However, the offended party is the government, which was allegedly deprived by the petitioner and the other accused of the capital gains and documentary stamp taxes, based on the actual and correct purchase price of the property stated therein in favor of the AFP-RSBS. The AGFOI was not involved whatsoever in the sales subject of the crimes charged; neither was it prejudiced by the said transactions, nor is it entitled to the civil liability of the petitioner for said cases. Thus, it is not the offended party in the said cases (Ramiscal Jr., v. Sandiganbayan, G.R. No. 140576-99, December 13, 2004). !
PROSECUTION OF CIVIL ACTIONS RULE 111 !
RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION !Implied institution of civil action with criminal action !GR: The institution or filing of the criminal action includes the institution therein of the civil action for recovery of civil liability arising from the offense charged. !XPNs: When the offended party: 1. Waives the civil action; 2. Reserves his right to file a separate civil action; or 3. Institutes a civil action prior to the criminal action (Sec. 1, Rule 111). !Reservation to file a separate action !Jurisprudence instructs that the reservation may not be necessarily expressed but may be implied, which may be inferred not only from the acts of the offended party but also from acts other than those of the latter (Herrera, 2007). !NOTE: Failure of the court to pronounce judgment as to the civil liability amounts to the reservation of the right to a separate civil action (Herrera, 2007). !
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Period when reservation of the right to file civil action be made !The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting the evidence, and under circumstances affording the offended party a reasonable opportunity to make the reservation [Sec.1(2), Rule 111]. !Effect of reserving the right to file a separate civil action !The prescriptive period of the civil action that was reserved shall be tolled (Sec. 2, Rule 111). !Instances when the reservation to file a separate civil action is NOT allowed !1. Criminal action for violation of BP 22 [Sec. 1(b), Rule 111]; 2. A claim arising from an offense which is cognizable by the Sandiganbayan
(Herrera, 2007); and 3. Tax cases. !NOTE: Only the civil liability arising from the crime charged (cause of action arising from delict) as a felony is now deemed instituted (Sarmiento, Jr. vs. Court of Appeals, G. R. No. 122502, December 27, 2002). !Q: In an action for violation of BP 22, the court granted the accused's demurrer to evidence filed without leave of court. However, the accused was required to pay private complainant the face value of the check. The accused filed a motion for reconsideration regarding the order to pay the face value of the check on the ground that the demurrer to evidence applied only to the criminal aspect of the case. Resolve the motion for reconsideration. (2003, 2001 Bar Question) !A: The motion for reconsideration should be denied. The ground that the demurrer to evidence applied only to the criminal aspect of the case was not correct. Under Rule 111, the criminal action for violation of BP 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. !Q: Al was charged before the City Court of Cebu with the offense of Serious Physical Injuries Thru Reckless Imprudence, for having allegedly sideswiped Andrew along M. C. Briones St., Cebu City while Al was driving a jeepney owned and registered in the name of Carl who is Al’s employer. While the criminal case was pending, Andrew filed a separate civil action for damages based on culpa aquiliana against Al and the latter's employer, Carl. Al and Carl filed a motion to dismiss the civil case on the ground that the complaint for damages was filed without the proper reservation in the criminal action to institute a separate and independent civil action. Rule on the motion.
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!A: There is no need to make a reservation of Andrew’s right to file a separate civil action inasmuch as the civil action contemplated is not derived from the criminal liability of the accused but one based on culpa aquiliana. The confusion lies in the failure to distinguish between the civil liability arising out of criminal negligence governed by the Penal Code on one hand, and the responsibility for culpa aquiliana or quasi-delict on the other, the latter being separate and distinct from the civil liability arising from crime. It is thus clear that the plaintiff-appellant's action, being one for culpa aquiliana (Art. 2176) may not be classified as a civil action arising from the criminal offense to be suspended "until judgment in the criminal case has been rendered (Bordas v. Canadalla, G.R. No. L-30036, April 15, 1988).
!WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY !
Instances when civil actions may proceed independently !1. Arising from breach of contract; and 2. Independent civil actions or those based on Arts. 32, 33, 34 and Art. 2176 of
the NCC or quasi-delict (Herrera, 2007). !NOTE: The failure to reserve the right to file the enumerated actions does not amount to a waiver to institute a separate civil action (Herrera, 2007). !Recovery of civil liability under Arts. 32, 33, 34 and 2176 of the Civil Code may be prosecuted separately even without reservation (DMPI Employees Credit Cooperative v. Velez, G.R. No. 129282, November 29, 2001).In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. !Consolidation of civil action and criminal action arising from the same offense !Before judgment on the merit is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action (Sec. 2, Rule 111). !NOTE: In cases where the consolidation is given due course, the evidence presented and admitted in the civil case shall be deemed automatically reproduced in the criminal action without prejudice to admission of additional evidence and right to cross examination (Sec. 2, Rule 111). !Q: May the offended party compromise the civil aspect of a crime? !
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A: Yes. Provided it must be entered before or during the litigation and not after final judgment. !
WHEN SEPARATE CIVIL ACTION IS SUSPENDED !Suspension of civil action !GR: If the civil action is instituted before the criminal action and the criminal action is subsequently commenced, the pending civil action, in whatever stage it may be found, shall be suspended until final judgment of the criminal action has been rendered (Sec. 2, Rule 111). !XPNs: 1. In cases of independent civil actions based on Arts. 32, 33, 34 and 2176 of the
Civil Code; 2. In cases where the civil action presents a prejudicial question; and 3. Where the civil action is not one intended to enforce the civil liability arising
from the offense. !Extinction of the civil action when the penal action is extinguished !GR: The extinction of the penal action does not extinguish the civil action. !XPN: When there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability might arise did not exist (Sec. 2, Rule 111). !NOTE: The civil action that is extinguished refers exclusively to civil liability arising from the crime and does not include civil actions: 1. Based on quasi-delict 2. Based on Arts. 32, 33 and 34 of the NCC (independent civil actions) 3. Civil obligation not based on the criminal offense (Herrera, 2007). !Effect of the Acquittal of the Accused on his Civil Liability !1. If the acquittal is based on the ground that he was not the author of the
crime, it will extinguish his civil liability which may arise from the offense; or 2. If the acquittal is based on reasonable doubt on the guilt of the accused, the
civil liability of the accused arising from the crime may be proved by preponderance of evidence (Herrera, 2007). !
NOTE: When the trial court acquits the accused based on reasonable doubt, it could make a pronouncement on the civil liability of the accused (Lontoc v. Jarantilla, G.R. No. 80194, March 21, 1989).The court may be compelled to include in the judgment of acquittal the civil liability through a petition for mandamus (Maximo v. Gerochi, G.R. Nos. L-47994-97, September 24, 1986).
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!Instances where the acquittal of the accused does NOT bar the continuation of the civil case !1. Acquittal based on reasonable doubt; 2. The decision contains a declaration that the liability of the accused is not
criminal but only civil in nature; and 3. The civil liability is not derived from or based on the criminal act of which the
accused is acquitted (Sanchez v. Far East Bank and Trust Company, G.R. No. 155309, November 15, 2005). !
Q: Can an employer be held civilly liable for quasi-delict in a criminal action filed against his employee? !A: The employer cannot be held civilly liable for quasi-delict since quasi-delict is not deemed instituted with the criminal action. If at all the only civil liability of the employer would be his subsidiary liability under the RPC. Noteworthy is the fact that the subsidiary liability established in Arts. 102 and 103 of the RPC may be enforced in the same criminal case by filing in said criminal action a motion for execution against the person subsidiarily liable (Maniago v. CA, G.R. No. 101809, February 20, 1996). !
EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION !Effect of the death of the accused or convict on the civil action !If the accused died: 1. After arraignment and during the pendency of the criminal action !
GR: The civil liability of the accused based on the crime is extinguished. !XPN: Independent civil action based on Arts. 32 33, 34 and 2176 of the Civil Code; and Civil liability predicated on other sources of obligations, i.e. law, contract, and quasi-contract, which is subsequently instituted; !
2. Before arraignment – the offended party may file the civil action against the estate of the deceased (Sec. 4, Rule 111).
3. Pending appeal a. Civil liability arising from the crime is extinguished b. Civil liability predicated from another source survives i.e. civil liability
arising from law, contracts, quasi-contract and quasi-delict. !NOTE: In nos. 1 and 3(b), the civil action may be continued against the estate or legal representative of the accused after proper substitution, as the case may be (Sec. 4, Rule 111).Where the civil liability survives, it may be pursued by the filing of a
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separate civil action unless otherwise waived, reserved or instituted prior to the institution of the criminal action (Herrera, Remedial Law, Vol. IV, p. 257, 2007 ed.). !Q: Allan and Boyet were charged with murder committed in conspiracy. After trial, Allan and Boyet were convicted as charged. While the case was pending in the CA, Allan died. Should the appeal still continue despite the death of Allan? !A: Yes. Notwithstanding the death during the pendency of the criminal action of one of two accused charged with and convicted for murder committed in conspiracy, the appeal should continue to determine criminal and civil liability. Here, the death of Allan extinguished his criminal and civil liability arising from the offense, but Boyet may still be found criminally and civilly liable (People v. Tumayao, G.R. No. L-35442, March 4, 1932). !Q: Does a judgment in favor of the defendant in a civil action bar a criminal action for the same act? !A: No. Final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to criminal action against the defendant for the same act or omission subject of the civil action (Sec. 5, Rule 111) unless the civil action is a prejudicial question which involves an issue similar or intimately related to the issue raised in the criminal, the resolution of which determines whether or not the criminal action may proceed. !
PREJUDICIAL QUESTION
!Prejudicial question !It is an issue involved in a civil action which is similar or intimately related to the issue raised in a criminal action, the resolution of which determines whether or not the criminal action may proceed. !NOTE: The prejudicial question may be raised during the preliminary investigation of the offense or in court before the prosecution rests its case. !The petition for suspension by reason of prejudicial question is filed with the Office of the Prosecutor or court where the criminal action has been filed for trial at any time before the prosecution rests (Sec. 6, Rule 111). !Elements of a prejudicial question !1. The civil action must be instituted prior to the criminal action; 2. The civil action involves an issue similar or intimately related to the issue
raised in the subsequent criminal action; and
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3. The resolution of such issue determines whether or not the criminal action may proceed (Sec. 7, Rule 111). !
NOTE: For the principle of prejudicial question to apply, it is essential that there be two cases involved, invariably a civil case and a criminal case. If the two cases are both civil or if they are both criminal, the principle does not apply. The law limits a prejudicial question to a previously instituted civil action not to a subsequent one. !Q: Ana, for failure to remit to Bong the money collected and instead deposited the same to the latter’s personal account, was charged with estafa. Ana filed a motion to suspend the proceedings pending resolution of a civil case earlier filed for accounting and damages regarding the same subject matter. How should the prosecutor oppose the motion? (2000 Bar Question) !A: The civil case filed by Bong against Ana for accounting and damages does not involve an issue similar to or intimately related to the issue of estafa raised in the criminal action. The resolution of the issue in the civil case for accounting will not determine whether the criminal action for estafa may proceed. !Q: Is the resolution of the action for annulment of marriage a prejudicial question that warrants the suspension of the criminal case for frustrated parricide? !A: No.There is a prejudicial question when a civil action and a criminal action are both pending, and there exists in the civil action an issue which must be preemptively resolved before the criminal action may proceed because the issue raised in the civil action is resolved would be determinative of the guilt or innocence of the accused in the criminal case. !The issue in the annulment of marriage is not similar or intimately related to the issue in the criminal case for parricide. Further, the relationship between the offender and the victim is not determinative of the guilt or innocence of the accused. Even if the marriage between petitioner and respondent is annulled, petitioner could still be held criminally liable since at the time of the commission of the alleged crime, he was still married to respondent (Pimentel v. Pimentel, G.R. No. 172060, September 13, 2010). !Q: Andrew allegedly sold to Brian a parcel of land which Andrew later also sold to Xavier. Brian brought a civil action for nullification of the second sale and asked that the sale made by Andrew in his favor be declared valid. Andrew claims that he never sold the property to Brian and his purported signatures appearing in the first deed of sale were forgeries. Thereafter, an information for estafa was filed against Andrew based on the same double sale that was the subject of the civil action. Andrew filed a "motion for suspension of action" in the criminal case, contending that the resolution of
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the issues in the civil case would necessarily be determinative of his guilt or innocence. Is the suspension of the criminal action in order? Explain. (1999 Bar Question) !A: Yes. The suspension of the criminal action is in order because the defense of Andrew in the civil action, that he never sold the property to Brian and that his purported signatures in the first deed of sale were forgeries, is a prejudicial question the resolution of which is determinative of his guilt or innocence. If the first sale is null and void, there would be no double sale and Andrew would be innocent of the offense of estafa. !Q: Atty. Alfred obtained a loan from Bing covered by several postdated checks. The checks were dishonored by the bank when Bing tried to encash them. Bing filed a case for violation of BP 22 before the MTC. Bing also filed a disbarment case. Atty. Alfred argues that the criminal prosecution constitutes a prejudicial question in the administrative proceedings for his disbarment. Is Atty. Alfred correct? !A: No. Administrative cases against lawyers are sui generis. They are distinct from and may proceed independently of criminal cases. The burden of proof in a criminal case is guilt beyond reasonable doubt while in an administrative case only substantial evidence is required. Thus, a criminal prosecution will not constitute a prejudicial question even if the same facts and circumstances are attendant in the administrative proceedings (Yu v. Palaña, 558 SCRA 21). !
RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION
!1. Actual damages !
GR: No filing fee is required. !XPN: B.P. 22 cases, wherein the amount of the filing fees shall be equivalent
to the amount of the check involved. !2. Liquidated, moral, nominal, temperate or exemplary damages – The filing fee
shall be based on the amount alleged in the complaint or information [Sec. 1(4), Rule 111]. !
NOTE: If the amount of the damages claimed is not specifically alleged in the complaint or information, but the court subsequently awards such, the filing fees based on the amount awarded shall constitute a first lien on the judgment [Sec. 1(3), Rule 111]. !
PRELIMINARY INVESTIGATION
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RULE 112 ! NATURE OF THE RIGHT
!Preliminary Investigation !It is an inquiry or proceeding to determine whether 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 (Sec. 1, Rule 112). It is merely inquisitorial and a means of determining the persons who may be reasonably charged with a crime. It is not a trial of the case on the merits (Herrera, 2007). !A preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal (Cojuangco, Jr. vs. PCGG, et. al, as held in Uy v. Ombudsman, G.R. Nos. 156399-400, June 27, 2008). !It is not part of the trial of the criminal action in court. Nor is its record part of the record of the case in the RTC. The dismissal of the case by the investigator will not bar the filing of another complaint for the same offense, but if re-filed, the accused is entitled to another preliminary investigation (US v. Marfori, G.R. No. 10905, December 9, 1916). !When required !Preliminary Investigation is required to be conducted before filing of complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to fine. !Period when preliminary investigation is required to be conducted !GR: Before the filing of a complaint or information for an offense where the penalty prescribed by law is imprisonment of at least 4 years, 2 months and 1 day without regard to the imposable fine (Sec.1, Rule 112). !XPNs: 1. Where an information or complaint is filed pursuant to Sec. 7, Rule 112, i.e.
the complaint or information is filed directly in court (Sec. 1, Rule 112); or 2. For cases requiring preliminary investigation, when a person is lawfully
arrested without a warrant provided that inquest was made in accordance with Rule 112 (Sec. 6, Rule 112). !
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NOTE: Cases falling under summary procedure or punishable with a penalty of imprisonment less than 4 yrs., 2 months and 1 day do not require preliminary investigation. !Documents accompanying the complaint
!1. The affidavits of the complainant; 2. The affidavits of his witnesses; and 3. Other supporting documents that would establish probable cause [Sec. 3(a)
Rule 112]. !NOTE: The affidavits of the complainant shall be subscribed and sworn to before:
1. Any prosecutor; 2. Before any government official authorized to administer oaths; or 3. In the absence or unavailability of the above mentioned, the affidavits may be
subscribed and sworn to before a notary public. !The officer or notary public before whom the affidavits were subscribed and sworn to must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits [Sec. 3(a), Rule 112].
!Duty of the Investigating Officer
!From the filing of the complaint, the investigating officer has 10 days within which to decide on which of the following options to take:
1. To dismiss the complaint if he finds no ground to conduct the investigation; or 2. To issue a subpoena in case he finds the need to continue with the
investigation, in which case the subpoena shall be accompanied with the complaint and its supporting affidavits and documents [Sec. 3(b), Rule 112]. !
NOTE: Within 10 days from receipt of subpoena, the respondent is required to submit his counter-affidavit, the affidavits of his witnesses and the supporting documents relied upon for his defense [Sec. 3(c) Rule 112].
!Despite the subpoena, if the respondent does not submit his counter-affidavit within the ten-day period granted him, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. The same rule shall apply in case the respondent cannot be subpoenaed [Sec. 3(d) Rule 112].
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!Filing of motion to dismiss during preliminary investigation
!GR: In preliminary investigation, a motion to dismiss is not an accepted pleading for it merely alleges the innocence of the respondent without rebutting or repudiating the evidence of the complainant.
!XPN: When it contains countervailing evidence or defenses and evidence which rebuts or repudiates the charges; in which case it will be treated as a counter-affidavit. !NOTE: If one files a motion to dismiss and he only asserts that the case should be dismissed, then the motion to dismiss is a mere scrap of paper. If the respondent does not later on submit a counter-affidavit, it will constitute a waiver on his part to file a counter-affidavit. !Clarificatory Hearing
!Clarificatory hearing is not mandatory. A hearing may be set by the investigating officer only when there are facts and issues to be clarified either from a party or a witness, which shall be conducted within ten days from the submission of the counter-affidavit, other affidavits and documents filed by the respondent.
!NOTE: The parties do not have the right to examine or cross-examine each other or the witnesses. If they have questions to ask, they shall submit the questions to the investigating officer who shall ask the questions [Sec. 3(e), Rule 112].
!Duty of the prosecutor after the termination of investigation
!Within 10 days from the termination of the investigation, the investigating prosecutor shall determine whether or not there is sufficient ground to hold the respondent for trial [Sec. 3(f), Rule 112].Afterwards, if the investigating officer finds cause to hold the respondent for trial, he shall prepare the resolution and information. Otherwise, he shall recommend the dismissal of the complaint (Sec. 4, Rule 112).
!PURPOSES OF PRELIMINARY INVESTIGATION
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!Purposes of conducting a preliminary investigation !1. For the investigating prosecutor to determine if the crime has been
committed; 2. To protect the accused from inconvenience, expense and burden of defending
himself in a formal trial unless probability of his guilt is first ascertained by a competent officer;
3. To secure the innocent against hasty, malicious, and oppressive prosecution and to protect him from an open and public accusation of a crime and anxiety of a public trial;
4. To protect the State from having to conduct useless and expensive trial; and 5. To determine the amount of bail, if the offense is bailable (Herrera, 2007) !Waiver of the right to preliminary investigation !While the right to preliminary investigation is a substantive right and not a mere formal or technical right of the accused, nevertheless, the right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a plea at arraignment (People v. Buluran, G.R. No. 113940, Feb. 15, 2000). !It shall be deemed waived by: 1. Express waiver or by silence (Herrera, Remedial Law, Vol. IV, p. 278, 2007
ed.); 2. Failure to invoke it during arraignment (People v. De Asis, G.R. No. 105581,
December 7, 1993); and 3. Consenting to be arraigned and entering a plea of not guilty without invoking
the right to preliminary investigation (People v. Bulosan, G.R. No. 58404, Apr. 15, 1988). !
NOTE: The waiver, whether express or implied, must be in a clear and unequivocal manner (Herrera, 2007). !Effect of absence of a preliminary investigation !Absence of a preliminary investigation does not: 1. Become a ground for a motion to quash the complaint or information as it
does not impair the validity of the information or affect the jurisdiction of the trial court (Sec. 3, Rule 117; People v. Buluran, G.R. No. 113940, February 15, 2000);
2. Affect the court’s jurisdiction but merely the regularity of the proceedings (People v. De Asis, G.R. No. 105581, December 7, 1993);
3. Impair the validity of the information or render it defective; and 4. Justify the release of the respondent or nullify the warrant of arrest against
him (Larranaga v. CA, G.R. No. 130644, March 13, 1998).
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!NOTE: If the accused raises the issue of lack of preliminary investigation before entering a plea, the court, instead of dismissing the information, should conduct the preliminary investigation or order the prosecutor to conduct it (Larranaga v. CA, G.R. No. 130644, March 13, 1998). !The right to preliminary investigation cannot be raised for the first time on appeal (Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993). !If lack of preliminary investigation is raised in a proceeding pending before the Sandiganbayan, the proceeding will be held in abeyance and case should be remanded to the Office of the Ombudsman or the Special Prosecutor to conduct the preliminary investigation (Ong v. Sandiganbayan, G.R. No. 126858, September 26, 2005). !Rights of the respondent in a preliminary investigation !1. Submit a counter affidavit; !
NOTE: The prosecutor is not mandated to require the submission of counter-affidavits. Probable cause may then be determined on the basis alone of the affidavits and supporting documents of the complainant, without infringing on the constitutional rights of the petitioners (Borlongan, Jr. v. Pena, G.R. No. 143591, November 23, 2007). !
2. Examine the evidence submitted by the complainant at his own expense; and !NOTE: Object evidence need not to be furnished but is available for examination, copying or photographing at the expense of the requesting party (Sec. 3, Rule 112). !
3. Be present during the clarificatory hearing (Sec. 3, Rule 112).
WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE
!Probable cause in preliminary investigation !It is the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was prosecuted. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt (Sps. Balangauan v. CA, G.R. No. 174350, August 13, 2008). !Persons authorized to conduct a preliminary investigation !1. Provincial or city prosecutors and their assistants; 2. National and Regional State Prosecutors; and
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3. Other officers as may be authorized by law (e.g. Ombudsman authorized officer deputized by COMELEC for election offenses). !
NOTE: Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdiction (Sec. 2, Rule 112). !Court interference in the conduct of preliminary investigation !GR: The courts cannot interfere in the conduct of preliminary investigations, leaving the investigatory officers sufficient discretion to determine probable cause. !XPN: When the acts of the officer are without or in excess of authority resulting from a grave abuse of discretion (Sps. Balangauan v. CA, G.R. No. 174350, August 13, 2008). !Extent of authority of the Ombudsman in the conduct of preliminary investigation !The Ombudsman has primary authority to investigate and exclusive authority to file and prosecute Sandiganbayan cases (Ledesma v. CA, G.R. 161629, July 29, 2005).The Ombudsman is authorized to take over at any stage, from any investigatory agency of the government, the investigation of such cases (Sec. 15, RA 6770). !NOTE: The power to investigate and to prosecute granted to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by the regular courts (Office of the Ombudsman v. Breva, G.R. No. 145938, Feb. 10, 2006). !This however does not include administrative cases of court personnel because the 1987 Constitution vests in the SC administrative supervision over all courts and court personnel. !Party to conduct preliminary investigation in election cases !The Commission on Elections is vested the power to conduct preliminary investigations; it may deputize other prosecuting arms of the government to conduct preliminary investigation and prosecute offenses (People v. Basilla, G.R. No. 83938-40, November 6, 1989). !
RESOLUTION OF INVESTIGATING PROSECUTOR
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Resolution of Investigating Prosecutor !If the investigating prosecutor finds cause to hold the defendant for trial, he shall prepare the resolution and information (Sec. 4, Rule 112).
!The information shall contain a certification by the investigating officer under oath in which he shall certify the following:
1. That he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses;
2. That there is reasonable ground to believe that a crime has been committed; 3. That the accused is probably guilty thereof 4. That the accused was informed of the complaint and of the evidence
submitted against him; and 5. That he was given an opportunity to submit controverting evidence (Sec. 4,
Rule 112). !Within 5 days from the issuance his resolution, the investigating prosecutor shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten days from their receipt thereof and shall immediately inform the parties of such action (Sec. 4, Rule 112).
!The resolution of the investigating prosecutor is merely recommendatory. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy (Sec. 4, Rule 112). !Different findings between the Investigating Prosecutor and Superior Prosecutor
!When the Investigating Prosecutor recommends the dismissal of the complaint but his findings are reversed by the “Superior” Prosecutor or Ombudsman on the ground that probable cause exists, the “superior” prosecutor or Ombudsman may by himself, file the information against the respondent, or direct another assistant prosecutor to do so without conducting another preliminary investigation (Sec. 4, Rule 112).
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Q: Regional Director August of the DPWH was charged with violation of Sec. 3(e) of RA 3019 in the Office of the Ombudsman. An administrative charge was likewise filed against him in the same office. The Ombudsman assigned a team composed of investigators from the Office of the Special Prosecutor and from the Office of the Deputy Ombudsman for the Military to conduct a joint investigation of the criminal case and administrative cases. The team of investigators recommended to the Ombudsman that August be preventively suspended for a period not exceeding 6 months on its finding that the evidence of guilt is strong. The Ombudsman issued the said order as recommended by the investigators. !August moved to reconsider the order on the following grounds: (a) the Office of the Special Prosecutor had exclusive authority to conduct a preliminary investigation of the criminal case; (b) the order for his preventive suspension was premature because he had yet to file his answer to the administrative complaint. Resolve with reasons the motion of respondent August. (2005 Bar Question) !A: The motion should be denied for the following reasons: 1. The Office of the Special Prosecutor does not have exclusive authority to
conduct a preliminary investigation of the criminal case. It may participate in the investigation together with the Deputy Ombudsman for the Military who can handle cases of civilians;
2. The order of preventive suspension need not wait for the answer to the administrative complaint and the submission of countervailing evidence (Garcia v. Mojica, G.R. No. 13903, September 10, 1999);
3. Preventive suspension pursuant to Sec. 24 of the Ombudsman Act of 1989 shall continue until termination of the case but shall not exceed 6 months except in relation to RA 3019 (Anti-Graft and Corrupt Practices) and PD 807 (statute providing for the organization of CSC in accordance with the provision of the Constitution prescribing the powers and functions and other purposes). As a career executive officer, his preventive suspension under the Civil Service Law may only be for a maximum period of 3 months. The period of suspension under the Anti-Graft Law shall be the same pursuant to the equal protection clause (Garcia v. Mojica, ibid.). !
REVIEW
!Remedy of the aggrieved party from the resolution of the Investigating Prosecutor as approved by his superior !An aggrieved party may appeal by filing a verified petition for review with the Secretary of Justice and by furnishing copies thereof to the adverse party and prosecution office issuing the appealed resolution. The appeal shall be taken within 15 days from receipt of the resolution or of the denial of the motion for
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reconsideration/reinvestigation if one has been filed within 15 days from receipt of the assailed resolution. Only one motion for reconsideration shall be allowed. Unless the Secretary directs otherwise, the appeal shall not stay the filing of the corresponding information in court on the basis of the finding of probable cause in the assailed decision. !The decision of the prosecutor may be reviewed by the courts when he acts with grave abuse of discretion amounting to lack of jurisdiction (Herrera, 2007). !Q: May a prosecutor be compelled by mandamus to file a complaint regarding a complaint filed which he previously dismissed for lack of merit after preliminary investigation? (1999 Bar Question) !A: No. This is because the determination of probable cause is within the discretion of the prosecutor. The remedy is an appeal to the Secretary of Justice. !Reversal or modification of the Resolution of the Provincial or City Prosecutor !The Secretary of Justice may motu proprio reverse or modify the resolution of provincial or city prosecutor or chief state prosecutor. The Secretary of justice may review resolutions of his subordinates in criminal cases despite the information being filed in court (Community Rural Bank of Guimba v. Talavera, A.M. No. RTJ-05-1909, April 6, 2005). The Secretary of Justice exercises the power of direct control and supervision over prosecutors, and may thus affirm, nullify, reverse or modify their rulings. In reviewing resolutions of state prosecutors, the Secretary of Justice is not precluded from considering errors, although unassigned, for the purpose of determining whether there is probable cause for filing cases in court. !NOTE: If the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties (Sec. 4, Rule 112). !Remedy of an aggrieved party against a Resolution of the Secretary of Justice !The resolution of the Secretary of Justice is appealable administratively before the Office of the President, and the decision of the latter may be appealed before the CA pursuant to Rule 43 (De Ocampo v. Secretary of Justice, G.R. No. 147392, January 25, 2006). However, if there is grave abuse of discretion resulting to lack or excess of jurisdiction, a petition for certiorari under Rule 65 may be filed (Ching v. Secretary of Justice, G.R. No. 164317, February 6, 2006). !
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Remedy of an aggrieved party against the Resolution of the Ombudsman !The resolution of the Ombudsman in administrative cases may be subject of petition for review via Rule 43 before the CA (Sec. 7, Rule III of the Rules of Procedure of the Office of the Ombudsman) or a special civil action for certiorari via Rule 65 before the SC in criminal cases (Mendoza-Arce v. Ombudsman, G.R. No. 149148, April 5, 2002). !Effect of the filing of a Petition for Review before the DOJ if the Information was already filed in court !Should the information be already filed in court but the accused filed a petition for review of the findings of the prosecutors with the DOJ, the court is bound to suspend the arraignment of the accused for a period not exceeding 60 days (Sec. 11, Rule 116). !Q: Does the SC and CA have the power to review preliminary investigation? !A: Yes. The SC and CA have the power to review the findings of prosecutors in preliminary investigations. Courts should never shirk from exercising their power, when the circumstances warrant, to determine whether the prosecutor’s findings are supported by the facts, or by the law. In so doing, courts do not act as prosecutors but as organs of the judiciary, exercising their mandate under the Constitution, relevant statutes, and remedial rules to settle cases and controversies. The exercise of this Court’s review power ensures that, on the one hand, probable criminals are prosecuted and, on the other hand, the innocent are spared from baseless prosecution (Social Security System v. DOJ, G.R. No. 158131, August 8, 2007). !NOTE: Even the RTCs can also make its own determination, upon proper motion, whether probable cause exists to hold the accused for trial (Ladlad v. Velasco, G.R. Nos. 172070-72, 1 June 2007). !
WHEN WARRANT OF ARREST MAY ISSUE
!Actions by the judge upon the filing of the Complaint or Information !Within 10 days from the filing of the complaint or Information, the judge shall personally evaluate the resolution of the prosecutor. In conducting the evaluation of the resolution, the judge shall look into supporting evidence (Sec. 5, Rule 112). !Options of the judge upon the filing of an Information !1. Dismiss the case if the evidence on record clearly failed to establish probable
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cause; 2. If he or she finds probable cause, issue a warrant of arrest or issue a
commitment order of the accused has already been arrested pursuant to a warrant of arrest or lawfully arrested without warrant; and
3. In case of doubt as to the existence of probable cause, order the prosecutor to present additional evidence within five days from notice, the issue to be resolved by the court within thirty days from the filing of the information. !
NOTE: It bears stressing that the judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause (Ong v. Genio, G.R. No. 182336, December 23, 2009). !Complaint was filed pursuant to a lawful warrantless arrest !The court shall issue a commitment order instead of a warrant of arrest. In case the judge doubts the existence of probable cause, the judge may order the prosecution to submit additional evidence within 5 days from notice. The issue must be resolved by the court within 30 days from the filing of the complaint or Information (Sec. 5, Rule 122, Rules of Court as amended by A.M. 05-08-26-SC, August 30, 2005). !
CASES NOT REQUIRING A PRELIMINARY INVESTIGATION
!When preliminary investigation is NOT required !1. When the penalty prescribed by law for the offense involves an imprisonment
of less than 4 yrs., 2 mos., and 1 day; 2. If a person is arrested lawfully without a warrant involving an offense which
requires preliminary investigation, an Information or complaint may be filed against him without need for a preliminary investigation provided an inquest has been conducted in accordance with existing rules (Sec. 6 Rule 112 as amended by A.M. No. 05-08-26-SC, August 30, 2005). Thus, if a person is arrested by a police officer in flagrante delicto while robbing the victim, the arrest is a lawful one and a preliminary investigation is not required even if the penalty for robbery is more than 4 yrs., 2 mos., and 1 day(Riano, Civil Procedure: A Restatement for the Bar, p. 161, 2011 ed.). !
Institution of cases when preliminary investigation is NOT required !There are 2 ways: !1. By filing the complaint directly with the prosecutor; or !
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NOTE: The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within 10 days from its filing (Sec. 8(a), Rule 112). !
2. By filing the complaint or Information with the MTC. !Instances when amendment of an Information does NOT warrant a new preliminary investigation !1. Amendment to information is not substantial (Villaflor v. Vivar, G.R. No.
134744, January 16, 2001); 2. The court orders the filing of correct information involving a cognate offense
(Sy Lim v. CA, G. R. No. L-37494, March 30,1982); and 3. If the crime originally charged is related to the amended charge such that an
inquiry into one would elicit substantially the same facts that an inquiry to another would reveal (Orquinaza v. People, G.R. No. 165596, November 15, 2005; Herrera, 2007). !
Instances when amendment of an information warrants a new preliminary investigation !1. If the amendment of the information changes the nature of the crime charged
(Luciano v. Mariano, G.R. No. L-32950, July 30, 1971); or 2. When on its face the information is null and void for lack of authority to file
the same and cannot be cured or revived by an amendment (Cruz, Sr. v. Sandiganbayan, G.R. No. 94595, February 26, 1995). !
REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION
!Period to properly question the lack of preliminary investigation !The accused must do so before he enters his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial. An application for or admission of the accused to bail does not bar him from raising such question (Sec. 26, Rule 114). Failure to invoke the right before entering a plea will amount to a waiver. !Remedies available to the accused if there was no preliminary investigation conducted pursuant to a lawful warrantless arrest !1. Before the complaint or Information is filed, the person arrested may ask for
a preliminary investigation but he must sign a waiver of the provisions of Art. 125 of the RPC, as amended, in the presence of his counsel; !
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NOTE: Art. 125 of the RPC deals with the period of delay in the delivery of detained persons to the proper judicial authorities. In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel (Art. 125, RPC). !
2. The waiver by the person lawfully arrested of the provisions of Art. 125 of the RPC does not preclude him from applying for bail;
3. After the filing of the complaint or Information in court without a preliminary investigation, the accused may, within 5 days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his evidence as provided in this Rule (Sec. 6, Rule 112). !
Q: The accused was arrested lawfully without a warrant for carnapping and detained at Camp Crame in Quezon City. He asked for a preliminary investigation and signed a waiver of the provisions of Art. 125 of the RPC. However, the assisting judge of the RTC in Marikina approved the bail bond for the accused who was being held in Quezon City. Was the approval of the bail bond proper? !A: No. The bail must be applied for and issued by the court in the province, city, or municipality where the person arrested is held. In this case, the bail application should have been filed with a Quezon City court which has the authority to grant the bail and not Marikina court (Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February 16, 2005). !
INQUEST
!Inquest !It is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court (Sec. 1, DOJ Circular No. 61). !Duties of an inquest officer !The initial duty of the inquest officer is to determine if the arrest of the detained person was valid; should the Inquest Officer find that the arrest was not made in accordance with the Rules, he shall: 1. Recommend the release of the person arrested or detained; 2. Note down the disposition on the referral document; 3. Prepare a brief memorandum indicating the reasons for the action taken; and
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4. Forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action (Sec. 9, DOJ Circular No. 61). !
NOTE: Where the recommendation is approved by the C i t y o r Provincial Prosecutor but the evidence on hand warrant t h e conduct of a regular preliminary investigation, the o rde r o f release shall be served on the officer having custody of s a i d detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn statements of the complainant and his witnesses and other supporting evidence. !Person to conduct pre l im inary investigation
!The preliminary investigation may be conducted by the Inquest Officer himself or by any other Assistant Prosecutor to whom the case may be assigned by the City or Provincial Prosecutor, which investigation shall be terminated within 15 days from its inception (Sec. 10 Part II Manual for Prosecutors).
!NOTE: If the Inquest Officer finds that probable cause exists, he shall forthwith
p r e p a r e t h e corresponding complaint/information with the recommendation that the same be filed in court (Sec. 13 Part II Manual for Prosecutors). If the Inquest Officer finds no probable cause, he shall recommend the release of the arrested or detained person (Sec. 15 Part II Manual for Prosecutors). !Inquest Proceeding !When the recommendation for release is approved, but the evidence warrants the conduct of a preliminary investigation, the said order shall be served on the officer having custody of the detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation. !Matters included in a referral document
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Commences by a receipt by inquest officer from the law enforcer of complaint/
referral
Inquest officer shall
first determine if the arrest
is valid
If the arrest is valid, detainee shall be asked if the detainee wants a new preliminary investigation,
and if he does, he shall be made to execute a waiver of the provision of Art. 125
of RPC
If not valid, he shall proceed with the inquest but shall recommend the release to be approved by the city or provincial
prosecutor
Otherwise, Inquest proper shall be
conducted
If the inquest officer finds probable cause, he must
prepare a complaint/information with
recommendation to be filed in court, otherwise
recommend the release of person (Part II, manual for
Prosecutor).
When the recommendation for
release is approved, but the evidence warrants
the conduct of a preliminary investigation,
the said order shall be served on the officer having custody of the
detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of
preliminary investigation
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!1. Affidavit of arrest;
2. Investigation report;
3. The statement of the complainant and witnesses; and
4. Other supporting evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested or detained person.
!NOTE: The Inquest Officer shall, as far as practicable, cause the affidavit of arrest and statements/affidavits of the complainant and the witnesses to be subscribed and sworn to before him by the arresting officer and the affiants (Sec. 3, Part II, Manual for Prosecutors).
!Instances when production of a detained person before the inquest officer is dispensed with
!1. If he is confined in a hospital;
2. If he is detained in a place under maximum security;
3. If production of the detained person will involve security risks; or
4. If the presence of the detained person is not feasible by reason of age, health, sex and other similar factors (Sec.6, Part II, Manual for Prosecutors).
!Q: Leo was arrested without a warrant following the issuance by PGMA of PD 1017. On the eve of his arrest, Leo was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition (Art. 142, RPC) based on a speech he allegedly gave during a rally. The inquest was based on a joint affidavit of Leo’s arresting officers who claimed to have been present at the rally. The inquest prosecutor filed the corresponding Information with the MeTC. Several days after the first inquest, he was again subjected to a second inquest but this time for rebellion allegedly committed based on the letters of CIDG investigators claiming that Leo was the leader/ promoter of an alleged plot to overthrow the Arroyo government. The panel of prosecutors from the DOJ which conducted the second inquest subsequently issued a resolution finding probable cause to indict Leo as leader/ promoter of alleged rebellion. The panel filed an Information with the RTC of Makati. The court sustained the finding of probable cause against Leo. Leo filed a Petition to set aside the orders finding probable cause and the denial of the MR to
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enjoin his prosecution. Was the second inquest valid? !A: No. Inquest proceedings are proper only when the accused has been lawfully arrested without warrant. Sec. 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected. !The joint affidavit of Leo’s arresting officers states that the officers arrested Leo, without a warrant, for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted – as he did conduct – an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Leo to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest void (Crispin Beltran v. People and Secretary Gonzales, G.R. No. 175013, June 1, 2007). !
ARREST RULE 113 !
Arrest !It is the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113). !Persons who are NOT subject to arrest !1. A senator or member of the House of Representatives shall, in all offenses
punishable by not more than 6 years of imprisonment, be privileged from arrest while Congress is in session (Sec. 11, Art. VI, 1987 Constitution); !NOTE: The privilege of a senator or congressman will not apply when the offense is: a. Punishable by imprisonment of more than 6 years even if Congress is in session
(People v. Jalosjos, G.R. No. 132875-76, Feb. 3, 2000); or b. If the offense is punishable by imprisonment of not more than 6 years, the
privilege does not apply if Congress is not in session. !2. Under the generally accepted principles of international law, sovereign and
other chiefs of state, ambassadors, ministers plenipotentiary, ministers resident, and charges d’affaires are immune from the criminal jurisdiction of the country of their assignment and are therefore immune from arrest;
3. The arrest of duly accredited ambassadors, public ministers of a foreign country, their duly registered domestics, subject to the principle of reciprocity (Secs. 4 and 7, RA 75). !
ARREST, HOW MADE !It is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest (Sec. 2 Rule 113).
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!NOTE: Arrest may be made on any day, at any time of the day or night (Sec.6, Rule 113). !The head of the office to whom the warrant was delivered must cause it to be executed within 10 days from its receipt, and the officer to whom it is assigned must make a report to the judge who issued the warrant within 10 days from the expiration of the period. If he fails to execute it, he should state the reasons therefore (Sec. 4, Rule 113). !
ARREST WITHOUT WARRANT, WHEN LAWFUL
!Instances when warrant of arrest is NOT necessary !1. Accused is already under detention; 2. Complaint or information was filed pursuant to a valid warrantless arrest; and 3. Complaint or information is for an offense penalized by fine only (Sec. 5 (c),
Rule 112). !Instances of a valid warrantless arrest !1. When in the presence of the arresting person, the person to be arrested has
committed, is actually committing or is attempting to commit an offense in flagrante delicto arrest;
2. When an offense has in fact been committed and the arresting person has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it (doctrine of hot pursuit); !NOTE: There must be compliance with the element of immediacy between the time of the commission of the crime and the time of arrest (People v Salvatiera, 276 SCRA 55). !
3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another (Sec. 5, Rule 113). !
Q: On his way home, a member of the Caloocan City police force witnessed a bus robbery in Pasay City and effects the arrest of the suspect. Can he bring the suspect to Caloocan City for booking since that is where he is stationed? Explain briefly. (2007 Bar Question) !A: No. It shall be the duty of the officer executing the warrant to arrest the accused and to deliver him to the nearest police station or jail without unnecessary delay (Sec. 3, Rule 113). This rule equally applies to situations of
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warrantless arrests. Here, the arrest was made in Pasay City. Hence, the suspect should be brought to the police station in Pasay City for booking and not in Caloocan City. !
METHOD OF ARREST !Method of Arrest !1. By actual restraint of the person to be arrested; 2. By his submission to the custody of the person making the arrest. !Q: How may arrest be effected? !A:
Method of arrest Exception to the rule on giving information
Arrest by officer by virtue of a warrant
(Sec. 7, Rule 113)
The officer shall inform the person to be arrested the cause of the arrest and the f a c t t ha t t he warrant has been i s sued for h i s arrest. !NOTE: The officer need not have the w a r r a n t i n h i s possession at the time of the arrest but must show the same after the a r r e s t , i f t h e person arrested so requires.
1. When the person to be arrested flees;
2. W h e n h e forcibly resists b e f o r e t h e officer has an opportunity to in fo rm h im; and
3. W h e n t h e giving of such i n f o r m a t i o n will imperil the arrest.
Arrest by officer without a warrant
(Sec. 8, Rule 113)
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The officer shall inform the person to be arrested of his authority and the cause of the arrest w/out a warrant
1. W h e n t h e person to be a r r e s t e d i s engaged in the commission of an offense or i s p u r s u e d immediate ly i t s commission;
2. When he has escaped, flees, o r f o r c i b l y resists before the officer has an opportunity to so inform him; and
3. W h e n t h e giving of such i n f o r m a t i o n will imperil the arrest.
Arrest by a private person (Sec. 9, Rule 113)
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!ARREST MADE BY OFFICER WITH WARRANT !
Amount of force to be used in making an arrest !GR: No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Sec. 2, Rule 113). !XPN: If necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him and protect himself from bodily harm (Albano p. 1076 citing People v. Delima, 46 Phil. 738). !NOTE: An officer may break into a building or enclosure to effect an arrest provided that: 1. The person to be arrested is or reasonably believed to be in the said building; 2. The officer has announced his authority and purpose for entering therein; 3. He has requested and been denied admittance (Sec. 11, Rule 113). !A lawful arrest may be made anywhere, even on a private property or in a house. This rule is applicable both where the arrest is under a warrant, and where there is a valid warrantless arrest. !
T h e p r i v a t e p e r s o n s h a l l inform the person to be arrested of the intention to arrest him and the cause of the arrest. !NOTE: The private p e r s o n m u s t d e l i v e r t h e arrested person to the nearest police stat ion or jai l , otherwise, he may be held criminally liable for illegal detention.
1. W h e n t h e person to be a r r e s t e d i s engaged in the commission of an offense or i s p u r s u e d immediate ly i t s commission;
2. When he has escaped, flees, o r f o r c i b l y resists before the officer has an opportunity to so inform him; and
3. W h e n t h e giving of such i n f o r m a t i o n will imperil the arrest.
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Objects subject to confiscation from the person arrested !1. Objects subject of the offense or used or intended to be used in the
commission of the crime; 2. Objects which are fruits of the crime; 3. Those which might be used by the arrested person to commit violence or to
escape; and 4. Dangerous weapons and those which may be used as evidence in the case. !NOTE: Arrest must precede the search, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest at the outset of the search. Reliable information alone is not sufficient to justify a warrantless arrest under Sec. 5, Rule 113. !Q: Jose, Alberto and Romeo were charged with murder. Upon filing of the information, the RTC judge issued the warrants of arrest. Learning of the issuance of the warrants, the 3 accused jointly filed a motion for reinvestigation and for the recall of the warrants of arrest. On the date set for hearing of their motion, none of the accused showed up in the court for fear of being arrested. The RTC judge denied their motion. Did the RTC rule correctly? (2008 Bar Question) !A: The RTC ruled correctly in denying the motion for reinvestigation and recall of the warrants of arrest because the accused have not surrendered their persons to the court. Jurisdiction over the person of the accused can only be obtained through arrest or voluntary surrender (Dimatulac v. Villon, G.R. No. 127107, October 12, 1998). !
ARREST MADE BY OFFICER WITHOUT WARRANT !GR: No peace officer or person has the power or authority to arrest anyone without a warrant except in those cases expressly authorized by law (Umil vs. Ramos, G.R. No. 81567, October 3, 1991). !XPNs: 1. In flagrante delicto arrests
When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. !
2. Buy-bust Operation A form of entrapment which has been repeatedly accepted to be a valid means of arresting violators of the Dangerous Drugs Law. The violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime (People v. Juatan, G.R. No. 104378, August 20, 1996).
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!3. Hot Pursuit Arrest
When an offense has in fact just been committed and he has probable cause to believe based on personal knowledge of fact and circumstance that the person to be arrested has committed it. !Elements of Hot Pursuit Arrest a. An offense has been committed close proximity between the arrest and the
time of commission of the crime (Pamaran, 2007); b. The offense has just been committed; and c. Probable cause based on personal knowledge on the part of the person
making the arrest, of facts or circumstances that the person/s to be arrested committed it (Herrera, 2007). !
4. Evasion of service of sentence by prisoner When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred.
5. Where a person who has been lawfully arrested escapes or is rescued (Sec. 13, Rule 113).
6. By the bondsman for the purpose of surrendering the accused (Sec. 23, Rule 114).
7. Where the accused out on bail attempts to leave the country without permission of the court (Sec. 23, Rule 114). !
Q: The officers went to the scene of the crime where they found a piece of wood and a concrete hollow block used by the killers in bludgeoning the victim to death. A neighbor of the accused who witnessed the killing, pointed to Roberto as one of the assailants. Roberto was arrested three hours after the killing. Is the arrest a valid warrantless arrest? !A: Yes. Under the abovementioned circumstances, since the policemen had personal knowledge of the violent death of the victim and of facts indicating that Roberto and two others had killed him, they could lawfully arrest Roberto without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did(People v. Gerente, 219 SCRA 756). !Personal knowledge
!It means actual belief or reasonable grounds of suspicion that the person to be arrested is probably guilty of the offense based on actual facts. Personal knowledge has no reference to the actual commission of the crime but to personal knowledge of facts leading to probable cause.
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!NOTE: Personal gathering of information is different from personal knowledge. The rule requires that the arrest immediately follows the commission of the offense (People v Manlulu, 231 SCRA 701). !Obligation of the arresting officer after the warrantless arrest !The arresting officer must comply with the provisions of Art. 125 of the RPC, otherwise, he may be held criminally liable for arbitrary detention under Art. 124, RPC. Jurisdiction over the person arrested must be transferred to the judicial authorities. Art. 125 is a procedural requirement in case of warrantless arrest. A case must be filed in court. !Period for officers to deliver the person detained under Art. 125 of the RPC The person must be delivered to the judicial authorities within the period specified in Art. 125 (Delay in the delivery of detained persons to the proper judicial authorities): !1. 12 hours - Light penalties 2. 18 hours - Correctional penalties 3. 36 hours - Afflictive or capital penalties !NOTE: The accused should be brought to the prosecutor for inquest proceedings wherein existence of probable cause will be determined. Then the judge shall issue a commitment order (order issued by the judge when the person charged with a crime is already arrested or detained) and not a warrant. !Q: Fred was arrested without a warrant. After preliminary investigation, an information was filed in court. He pleaded not guilty during arraignment. After trial on the merits, he was found guilty by the court. On appeal he claims that judgment was void due to his illegal arrest. As Solicitor General, how would you refute said claim? (2000 Bar Question) !A: Any objection to the illegality of the arrest of the accused without a warrant is deemed waived when he pleaded not guilty at the arraignment without raising the question. It is too late to complain about a warrantless arrest after trial is commenced and completed and a judgment of conviction rendered against the accused (People v. Cabiles, G.R. No. 112035, January 16, 1998). !NOTE: An accused who enters his plea of not guilty and participates in the trial waives the illegality of the arrest. Objection to the illegality must be raised before arraignment, otherwise it is deemed waived, as the accused, in this case, has voluntarily submitted himself to the jurisdiction of the court (People v. Macam, G.R. Nos. L-91011-12, November 24, 1994). !Ratification of an illegal arrest !
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Illegality of warrantless arrest maybe cured by filing of information in court and the subsequent issuance by the judge of a warrant of arrest. !NOTE: Once a person has been duly charged in court, he may no longer question his detention by petition for habeas corpus. His remedy is to quash the information and/or the warrant of arrest. !Consequences of Illegal Arrests
!1. The documents, things or articles seized following the illegal arrest are
inadmissible in evidence; 2. The arresting person may be held criminally liable for illegal arrest under Art.
269, RPC; 3. Arresting officer may be held civilly liable for the damages under Art. 32,
NCC; and 4. He may also be held administratively liable. !Q: Albert was killed by Bobot during a quarrel over a guest relations officer in a nightclub. Two days after the incident, and upon complaint of the widow of Albert, the police arrested Bobot without a warrant of arrest and searched his house without a search warrant. 1. Can the gun used by Bobot in shooting Albert, which was seized during the
search of the house of Bobot, be admitted in evidence? 2. Is the arrest of Bobot legal? (1997 Bar Question) !A: 1. No. The gun seized during the search of the house of Bobot without a search
warrant is not admissible in evidence [Secs. 2 and 3(2), Art. III, 1987 Constitution]. Moreover, the search was not an incident to a lawful arrest of a person under Sec. 12, Rule 126. !
2. No. A warrantless arrest requires that the crime has in fact just been committed and the police arresting has personal knowledge of facts that the person to be arrested has committed it (Sec. 5, Rule 113).Here, the crime has not just been committed since a period of two days had already lapsed, and the police arresting has no such personal knowledge because he was not present when the incident happened (Go v. CA, G.R. No. 106087, Jan. 11, 1995). !
Q: May authorities resort to warrantless arrest in cases of rebellion? !A: Yes. Since rebellion has been held to be a continuing crime, authorities may resort to warrantless arrests of persons suspected of rebellion, as provided under Sec. 5, Rule 113. However, this doctrine should be applied to its proper context – i.e., relating to subversive armed organizations, such as the New
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People’s Army, the avowed purpose of which is the armed overthrow of the organized and established government. Only in such instance should rebellion be considered a continuing crime(People v. Suzuki, G.R. No. 120670, October 23, 2003). !
BY A PRIVATE PERSON !Instances when a private person may make an arrest !1. When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense 2. When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it
3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. !
NOTE: In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be subjected to an inquest proceeding. !
REQUISITES OF A VALID WARRANT OF ARREST
!Warrant of Arrest !It is a legal process issued by a competent authority, directing the arrest of a person or persons upon the grounds stated therein (Herrera, 2007). !Person who may issue a warrant of arrest !The 1987 Constitution speaks of “judges” which means judges of all levels. This power may not be limited much less withdrawn by Congress. The power to determine the existence of probable cause to issue a warrant of arrest is a function of the judge and such power lies in the judge alone(People v. Inting, G.R. No. 85866, July 24, 1990). !NOTE: The exception is in case of deportation of illegal and undesirable aliens, whom the President or the Commissioner of Immigration may order arrested following a final order of deportation for the purpose of deportation (Salazar v. Achacoso, 183 SCRA 145). !Essential requisites of a valid warrant of arrest !1. Issued upon probable cause;
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2. Probable cause is to be determined personally by the judge after examination under oath of the complainant and the witnesses he may produce;
3. The judge must personally evaluate the report of the prosecutor and the evidence adduced during the preliminary examination (Soliven v. Makasiar GR No L-82585, November 14, 1988);
NOTE: A warrant of arrest issued based only on the prosecutor’s findings and recommendation like the information and resolution finding a probable cause, without the court determining on its own the issue of probable cause based on evidence is null and void(Ho vs. People, 280 SCRA 365; Pamaran, 2007). !
4. The warrant must particularly describe the person to be arrested; and 5. It must be in connection with specific offense or crime. !Period of the validity of a warrant of arrest !No time limit is fixed for the validity of a warrant of arrest, unlike a search warrant, which is effective only for 10 days (Pamaran, 2001). It remains valid until arrest is effected or the warrant is lifted (Manangan v. CFI, G.R. 82760, August 30, 1990). !Remedy for warrant of arrest !Where a warrant of arrest was improperly issued, the proper remedy is a petition to quash it, not a petition for habeas corpus, since the court in the latter case may only order his release but not enjoin the further prosecution or the preliminary examination of the accused (Alimpoos v. CA, GR No L-27331, July 30, 1981). !DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST
!Probable Cause !It refers to facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the persons involved. It need not be based on clear and convincing evidence of guilt. Neither is it based on evidence establishing guilt beyond reasonable doubt or on evidence establishing absolute certainty of guilt. It simply implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction. A finding of probable cause need only rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects (The Presidential Ad-Hoc Fact-Finding Committee on Behest Loans v. Desierto, G.R. No. 136225, Apr. 23, 2008). !
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!Determination of the Existence of Probable Cause
"
DISTINGUISH PROBABLE CAUSE OF FISCAL FROM THAT OF A JUDGE !
Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor
He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.
In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within 5
If he finds probable cause, he shall issue a warrant of arrest, or a commitment order (Sec. 6, Rule112).
Probable Cause as
determined by the
Prosecutor
Probable Cause as
determined by the Judge
Purpose F o r t h e filing of an information in court by determining w h e t h e r t h e r e i s reasonable ground to believe that the accused is guilty of the offense c h a r g e d and should be held for trial.
F o r t h e issuance of warrant to d e t e r m i n e w h e t h e r t he re i s a necessity for placing the a c c u s e d u n d e r i m m e d i a t e cu s tody i n order not to frustrate the e n d s o f j u s t i c e ( P /Supt. Cruz v. J u d g e Areola, A.M. N o . RTJ-01-1642, M a r c h 6 , 2002).
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!BAIL
RULE 114 !Bail !It is 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 the conditions prescribed under the rules (Sec. 1, Rule 114). !Basis of the right to bail !The right to bail is a constitutional right which flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom. Thus, the right to bail only accrues when a person is arrested or deprived of his liberty. The right to bail presupposes that the accused is under legal custody (Paderanga v. Court of Appeals, 247 ACRS 741). !Conditions attached to the grant of bail !All kinds of bail are subject to the following conditions: 1. The undertaking shall be effective upon approval, and unless cancelled, shall
remain in form at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it;
2. The accused shall appear before the proper court whenever required by the court or these Rules;
Function
Execu t i ve function
J u d i c i a l function
Basis Reasonable ground to believe that a crime has b e e n committed.
The report a n d t h e s u p p o r t i n g d o c u m e n t s submitted by t h e f i s c a l dur ing the preliminary investigation a n d t h e s u p p o r t i n g a f f i d a v i t s that may be required to b e submitted.
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3. The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and
4. The bondsman shall surrender the accused to the court for execution of the final execution. !NOTE: The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last 6 months showing the face, left and right profiles of the accused must be attached to the bail (Sec. 2, Rule 114). !When the court finds that there is likelihood of the accused jumping bail or committing other harm to the citizenry is feared, the court may grant other conditions in granting bail (Almeda v. Villaluz, G.R. No. L-31665, August 6, 1975). !
Liability of the surety or bondsmen !It is inherently civil in nature. The liability of the bondsmen on the bail bond arises not from the violation of, or an obligation to comply with, a penal provision of law. It emerges instead from a contract, the bond subscribed jointly by the accused and the surety or bondsmen. !The obligation of the accused on the bond is different from the surety in that the former can be made to suffer a criminal penalty for failure to comply with the obligations on the bail bond. However, the surety is not under a similar path of punishment, as its liability on the bail bond would merely be civil in character (Reliance Surety and Insurance Co. v. Amante Jr., et. al., G.R. No. 150994, June 30, 2005). !NOTE: The court may not impose additional obligations upon the bondsmen other than those provided by law. The obligation imposed upon the bondsmen cannot be greater nor of a different character than those imposed upon the accused (Bandoy v. Judge of CFI of La Laguna, GR. No. L-5200, March, 11, 1909). !Effect of filing forged bail bonds !By filing forged bail bonds, appellants are considered not merely to have jumped bail, but for all intents and purposes to have escaped from detention. Hence, their pending appeal should be dismissed, subject to the filing of the proper criminal cases against the parties responsible therefor (People of the Philippines v. Del Rosario, G.R. Nos. 107297-98. December 19, 2000). !
NATURE
!Nature of bail proceedings !
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The hearing of an application for bail should be summary or otherwise in the discretion of the court. !NOTE: By 'summary hearing' means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for the purpose of bail (Ocampo v. Bernabe, 77 Phil. 55). !Purposes of bail !1. To relieve an accused from the rigors of imprisonment until his conviction and
yet secure his appearance at the trial (Almeda v. Villaluz GR No L-31665, August 6, 1975);
2. To honor the presumption of innocence until his guilt is proven beyond reasonable doubt;
3. To enable him to prepare his defense without being subjected to punishment prior to conviction. !
Q: Andrew was charged with the crime of estafa in the RTC of Manila. A warrant of arrest was issued by Judge Matias. Before the warrant of arrest could be served, Judge Matias issued a recall order of the warrant of arrest issued against Andrew in view of the approval of his bail bond by the Executive Judge of the RTC of Manila. Was the application for bail of Andrew validly approved? !A: No. The right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty and it would be premature to file a petition for bail for someone whose freedom has yet to be curtailed. Here, the bail application of Andrew was approved before the warrant for his arrest could be served (Alva v. CA, G.R. No. 157331, April 12, 2006). !Forms of bail !1. Corporate surety/ Bail bond;
a. An obligation under seal given by the accused with one or more sureties and made payable to the proper officer with the condition to be void upon performance by the accused of such acts as he may be legally required to perform;
b. The accused goes to an authorized bonding company and he will pay a premium for the service which is a percentage of the total amount of bail. The bonding company will then go to the court and execute an undertaking, or "security bond" in the amount of the bail bond in behalf of the accused, that if the accused is needed, the bonding company will bring him before the court;
c. If the accused jumps bail, the bond will be cancelled and the bonding company will be given sufficient time to locate the whereabouts of the
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accused who posted bail but later on jumps bail. Notice to bonding company is notice to the accused. Notice is usually sent to the bonding company in order to produce the body of the accused. !
NOTE: Liability of surety/bondsman covers all three stages: trial, promulgation, and execution of sentence. !2. Property bond;
a. The title of the property will be used as security for the provisional liberty of the accused which shall constitute a lien over the property;
b. The accused shall cause the annotation of the lien within 10 days after approval of the bond before the: i. Registry of Deeds if the property is registered; or ii. Registration Book in the Registry of Deeds of the place where the land
lies and before the provincial, city or municipal assessor on the corresponding tax declaration if property is not registered (Sec. 11, Rule 114);
c. The person who undertakes the conditions of a regular bond will be the custodian of the accused during the time that he is under provisional liberty. !
NOTE: In all cases, the surety of properties must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution (Sec. 12, Rule 114). !3. Cash deposit/ Cash bond;
a. It is the deposited by the accused himself or any person acting in his behalf;
b. Cash shall be in the amount fixed by the court or recommended by the prosecutor who investigated the case;
c. It is to be deposited before the: i. Nearest collector of internal revenue; ii. Provincial, city or municipal treasurer; or iii. Clerk of court where the case is pending;
d. No further order from the court is necessary for the release of the accused if the conditions prescribed were complied with; (Sec. 14, Rule 114)
e. If the accused does not appear when required, the whole amount of the cash bond will be forfeited in favor of the government and the accused will now be arrested. !
4. Recognizance a. An obligation of record, entered into before some court or magistrate duly
authorized to take it with the condition to do some particular act. It is an undertaking of a disinterested person with high credibility wherein he will execute an affidavit of recognizance to the effect that when the presence of the accused is required in court, the custodian will bring him to that
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court. b. This is allowed for light felonies only. !
NOTE: If the accused does not appear despite notice to the custodian, or the person who executed the recognizance does not produce the accused, he may be cited for contempt of court. This is the remedy because no money is involved in recognizance. !Bail bond v. Recognizance !
!Where filed !1. In the court where the case is pending; or 2. In the absence or unavailability of the judge thereof, with any RTC judge,
MTC judge, or MCTC judge in the province, city, or municipality. !NOTE: When bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending (Sec. 19, Rule 114). !Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or on appeal. !
3. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any RTC of said place, or if no judge thereof is available, with any MTC judge, MCTC therein; or
4. Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held (Sec. 17, Rule 114). !
BAIL BOND RECOGNIZANCE
An obligation under seal given by the accused with one or more sureties, and made payable to the proper officer with the condition to be v o i d u p o n performance by the accused of such acts as he may legally be required to perform.
An obl igat ion of record entered into before some court or m a g i s t r a t e d u l y authorized to take it with the condition t o d o s o m e particular act, the most usual condition in criminal cases b e i n g t h e appearance of the accused for trial.
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Q: If an information was filed in the RTC Manila charging Mike with homicide and he was arrested in Quezon City, in what court or courts may he apply for bail? Explain. (2002 Bar Question) !A: Mike may apply for bail in RTC Manila where the information was filed or in the RTC Quezon City where he was arrested, or if no judge thereof is available, with any MTC or MCTC judge therein. !Other instances when bail may be availed of !1. When a person lawfully arrested without a warrant asks for a preliminary
investigation before the complaint or information is filed in court, he may apply for bail (Sec. 6, Rule 112).
2. The court may require a witness to post bail if he is a material witness and bail is needed to secure his appearance. When the court is satisfied, upon proof or oath, that a material witness will not testify when required, and he or she is a lone eyewitness to the crime, it may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony is taken (Sec. 14, Rule 119). !
Q: Ana is the lone eyewitness to the brutal murder of Bruno allegedly committed by accused Carlo. She deliberately refuses to appear on the scheduled dates for the taking of her testimony for fear of reprisal from Carlo's die-hard followers. 2. May the court motu proprio order her to post bail? 3. How shall Ana be proceeded against if she refuses to give bail? 4. What protection may Ana avail if in case she decides to testify at the trial?
(1994 Bar Question) !A: 1. No. The rules require that the order to post bail is upon motion of either
party. 2. If Ana refuses to post bail, the court shall commit her to prison until she
complies or is legally discharged after her testimony has been taken (Sec. 14, Rule 119).
3. Ana may avail of the benefits under the Witness Protection Act. !Q: Is arraignment required before the court grants bail? !A: No. For the following reasons: 1. The trial court could ensure the presence of the accused at the arraignment
precisely by granting bail and ordering his presence at any stage of the proceedings [Section 2(b), Rule 114]; and
2. The accused would be placed in a position where he has to choose between filing a motion to quash and thus delay his release on bail, and foregoing the
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filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail (Lavides v. Court of Appeals, GR No. 129670, February 1, 2000). !
Q: Bobby was charged with plunder before the Sandiganbayan. Thereafter, he was arrested by virtue of a warrant of arrest. He then filed an application for bail. The Sandiganbayan refused to resolve his application for bail until after his arraignment. He argues that his arraignment is not a pre-condition to his application for bail. Is Bobby correct? Explain. !A: Yes. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. An accused need not wait for his arraignment before filing a petition for bail. !NOTE: If the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be "authorized" under the circumstances (Serapio v. Sandiganbayan, G.R. Nos. 148468, 148769 & 149116, January 28, 2003). !Law on Juveniles in conflict with the law with respect to bail of non-capital
offenses !1. The privileged mitigating circumstances of minority shall be considered (Sec.
34, RA 9344, Juvenile and Justice Act of 2006). 2. Where a child is detained, the court shall order the:
a. Release of the minor on recognizance to his/her parents and other suitable person;
b. Release of the child in conflict with the law on bail; or c. Transfer of the minor to a youth detention home/youth rehabilitation
center (Sec. 35, RA 9344). !NOTE: The court shall not order the detention of a child in a jail pending trial or hearing of his/her case (Sec. 35, RA 9344). !If minor is unable to furnish bail !The minor shall be, from the time of his arrest, committed to the care of the DSWD or the local rehabilitation center or upon recommendation of DSWD or other agencies authorized by the court may, in its discretion be released on recognizance (Sec. 36, RA 9344). !Court martial offenses !
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An accused military personnel triable by courts martial or those charged with a violation of the Articles of War does not enjoy the right to bail. !Filing of bail after a final judgment !GR: Bail may not be filed once there is already a final judgment (Sec. 24, Rule
114). !XPN: Even after conviction by the MTC, bail is still a matter of right. NOTE: If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. In no case shall bail be allowed after the accused has commenced to serve sentence. !
WHEN A MATTER OF RIGHT; EXCEPTIONS
WHEN A MATTER OF DISCRETION
!Bail as matter of right !1. Before or after conviction by the MeTC and MTC, and 2. Before conviction by the RTC of an offense not punishable by death,
reclusion perpetua or life imprisonment (Sec. 4, Rule 114). 3. Before final conviction by all children in conflict with the law for an offense
not punishable by reclusion perpetua or life imprisonment. !Bail as a matter of discretion !1. Upon conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment 2. Regardless of the stage of the criminal prosecution, a person charged with a
capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is not strong(Sec. 7, Rule 114); and
3. A child in conflict with the law charged with an offense punishable by death, reclusion perpetua or life imprisonment when evidence of guilt is not strong (Sec. 28, A.M. No. 02-1-18-SC). !
NOTE: The prosecution cannot adduce evidence for the denial of bail where it is a matter of right. However where the grant of bail is discretionary, the prosecution may show proof to deny the bail. !Whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal, or at least he must be asked for his recommendation. !
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Recommendation is necessary because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicant’s character and reputation, forfeiture of other bonds or whether he is a fugitive from justice. !Bail upon conviction by the RTC of an offense not punishable by death,
reclusion perpetua or life imprisonment !Bail should be filed with the trial court despite the filing of a notice of appeal provided that it has not yet transmitted the original record to the appellate court. If the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, then bail must be filed with the appellate court (Sec. 5, Rule 114). !Guidelines regarding the effectivity of bail !The SC en banc laid the following policies concerning the effectivity of the bail of the accused: 1. When the accused is charged with an offense which is punishable by a penalty
lesser than reclusion perpetua at the time of the commission of the offense, or the application for bail and thereafter he is convicted of a lesser offense than that charged, he may be allowed to be released on the same bail he posted, pending his appeal provided, he does not fall under any conditions of bail.
2. The same rule applies if he is charged with a capital offense but later on convicted of a lesser offense, that is, lower than that charged.
3. If on the other hand, he is convicted of that offense which was charged against him, his bail shall be cancelled and he shall thereafter be placed in confinement. !
NOTE: Bail in these circumstances is still not a matter of right but only a matter of sound discretion of the court (Herrera, 2007). !Grounds for denial of bail if the penalty imposed by the trial court exceeds 6 years !If the penalty imposed by the trial court is imprisonment exceeding 6 years, the accused shall be denied bail, or his bail shall be cancelled upon showing by the prosecution, with notice to the accused, of the following or other similar circumstances: 1. That he is a recidivist, quasi-recidivist or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration; 2. That he previously escaped from legal confinement, evaded sentence, or has
violated the conditions of his bail without valid justification; 3. That he committed the offense while on probation, parole, or under
conditional pardon;
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4. That the circumstances of his case indicate the probability of flight if released on bail; or
5. That there is undue risk that during the pendency of the appeal, he may commit another crime (Sec. 5, Rule 114). !
Q: Charged with murder, Leviste was convicted with the crime of homicide and was sentenced to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum. Pending appeal he applied for bail, but the same was denied by the CA. Petitioner’s theory is that, where the penalty imposed by the trial court is more than 6 years but not more than 20 years and the circumstances mentioned in the third paragraph of Sec. 5 are absent, bail must be granted to an appellant pending appeal. In an application for bail pending appeal by an appellant sentenced to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Sec. 5, Rule 114 of the Rules of Court? !A: In an application for bail pending appeal by an appellant sentenced for more than six years, the discretionary nature of the grant of bail pending appeal does not mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Sec. 5, Rule 114 of the Rules of Court. !The third paragraph of Sec. 5 of Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding 6 years. The first scenario involves the absence of any of the circumstances enumerated in the said paragraph deals with the circumstances enumerated in the said paragraph not being present. The second scenario contemplates the existence of at least one of the said circumstances. !In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the 3rd paragraph of Sec. 5 Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bail-negating circumstances in the third paragraph of Sec. 5, Rule 114 are absent. !On the other hand on the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Thus a finding that none of the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court the less stringent sound discretion approach (Leviste v. CA, GR No. 189122, March 17, 2010). !
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Remedy of the accused when bail is discretionary !When bail is discretionary, the remedy of the accused is to file a petition for bail. Once a petition for bail is filed, the court is mandated to set a hearing. The purpose of the hearing is to give opportunity to the prosecution to prove that the evidence of guilt is strong. If strong, bail will be denied. If weak, the bail will be granted. !Duties of the trial judge if an application for bail is filed !1. Reasonably notify the prosecutor of the hearing of the application for bail or
require him to submit his recommendation (Sec. 18, Rule 114); 2. Conduct a hearing of the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Secs. 7 and 8, Rule 114);
3. Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution(Baylon v. Sison, A.M. No. 92-7-360-0, Apr. 6, 1995);
4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. Otherwise, petition should be denied (Sec. 19, Rule 114). !
Party with the burden of proof in bail applications !It is the prosecution who has the burden of showing that evidence of guilt is strong at the hearing of an application for bail filed by a person who is charged for the commission of a capital offense or offense punishable by reclusion perpetua or life imprisonment (Sec. 8, Rule 114). !Effect of a grant of bail !The accused shall be released upon approval of the bail by the judge (Sec. 19, Rule 114). !Remedy of the accused when bail is denied by the trial court !File a petition for certiorari under Rule 65 based on grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such order. Such petition must take into account the hierarchy of courts. In the meantime however, while the case is pending, the accused may not be released (Caballes v. CA, G.R. No. 163108, February 23, 2005). !Frivolous complaints against judges A party or a lawyer who is guilty of filing a frivolous administrative complaint or a petition for inhibition against a judge arising from the latter's action on the
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application for bail may be appropriately sanctioned (Sec. 7 A.M. No. 12-11-2-SC). !Q: When the accused is entitled as a matter of right to bail, may the court refuse to grant him bail on the ground that there exists a high degree of probability that he will abscond or escape? Explain. (1999 Bar Question) !A: No. Where the offense is bailable, the mere probability that the accused will escape or if he had previously escaped while under detention does not deprive him of his right to bail. The remedy is to increase the amount of bail, provided the amount is not excessive (Sy Guan v. Amparo, G.R. No. L-1771, December 4, 1947). !Q: Is bail proper if the accused is suffering from poor health condition? !A: No. If continued confinement of the accused would be detrimental or dangerous to his health, the remedy would be to submit him to medical treatment or hospitalization. !Q: Domingo was charged with murder, a capital offense. After arraignment, he applied for bail. The trial court ordered the prosecution to present its evidence in full on the ground that only on the basis of such presentation could it determine whether the evidence of Domingo's guilt was strong for purposes of bail. Is the ruling correct? (2002 Bar Question)
!A: No. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The prosecution is only required to present as much evidence as is necessary to determine whether the evidence of Domingo’s guilt is strong for purposes of bail (Sec. 8, Rule 114).
!HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES
!Capital Offense !It refers to 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 (Sec. 6, Rule 114). !NOTE: RA 9346: An Act Prohibiting the Imposition of Death Penalty in the Philippines, abolished the death penalty. !
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Q: May a person charged with a capital offense be admitted to bail? !A: It depends. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution (Sec. 7, Rule 114). !Bail in offenses punishable by death, reclusion perpetua or life imprisonment !1. The hearing of the accused's motion for bail shall be summary, with the
prosecution bearing the burden of showing that the evidence of guilt is strong. The accused may at his option, if he wants the court to consider his evidence as well, submit in support of his motion the affidavits of his witnesses attesting to his innocence.
2. At the hearing of the accused's motion for bail, the prosecution shall present its witnesses with the option of examining them on direct or adopting the affidavits they executed during the preliminary investigation as their direct testimonies.
3. The court shall examine the witnesses on their direct testimonies or affidavits to ascertain if the evidence of guilt of the accused is strong. The court's questions need not follow any particular order and may shift from one witness to another. The court shall then allow counsels from both sides to examine the witnesses as well. The court shall afterwards hear the oral arguments of the parties on whether or not the evidence of guilt is strong.
4. Within 48 hours after hearing, the court shall issue an order containing a brief summary of the evidence adduced before it, followed by its conclusion of whether or not the evidence of guilt is strong. Such conclusion shall not be regarded as a pre-judgment on the merits of the case that is to be determined only after a full-blown trial (Sec. 6 A.M. No. 12-ll-2-SC). !
Q: In an Information charging them with murder, policemen Ian, Paul and Steve were convicted of homicide. Ian appealed from the decision but Paul and Steve did not. Paul started serving his sentence but Steve escaped and is at large. In the CA, Ian applied for bail but was denied. Finally, the CA rendered a decision acquitting Ian on the ground that the evidence pointed to the NPA as the killers of the victim.
1) Was the Court of Appeal's denial of Ian's application for bail proper? 2) Can Paul and Steve be benefited by the decision of the CA? (1998 Bar
Question) !A: 1.Yes. The CA properly denied Ian's application for bail. The court had the discretion to do so. Although Ian was convicted of homicide only, since he was charged with a capital offense, on appeal he could be convicted of the capital offense (Obosa v. CA, G.R. No. 114350, January 16, 1997). !
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Alternative Answer: Under Circular No. 2-92, Ian is entitled to bail because he was convicted of homicide and hence the evidence of guilt of murder is not strong. !
2.Paul, who did not appeal, can benefit from the decision of the CA which is favorable and applicable to him [Sec. 11(a) Rule 122]. The benefit will also apply to Steve even if his appeal is dismissed because of his escape. !
GUIDELINES IN FIXING AMOUNT OF BAIL
!Duty of the court to fix appropriate bail !The court shall, after finding sufficient cause to hold the accused for trial, fix the amount of bail that the latter may post for his provisional release, taking into account the public prosecutor's recommendation and any relevant data that the court may find from the criminal information and the supporting documents submitted with it, regarding the following: !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 the evidence against the accused 7. Probability of the accused appearing in trial 8. Forfeiture of other bonds 9. Fact that the accused was a fugitive from justice when arrested 10. Pendency of the cases in which the accused is under the bond (Sec. 1 A.M.
No. 12-11-2-SC). !Fixing of the amount of bail !Pending the raffle of the case to a regular branch of the court, the accused may move for the fixing of the amount of bail, in which event, the Executive Judge shall cause the immediate raffle of the case for assignment and the hearing of the motion (Sec. 2 A.M. No. 12-11-2-SC). !NOTE: The principal factor to the determination of which most other factors are directed is the probability of the appearance of the accused, or of his flight to avoid punishment (Villasenor v Abano, 21 SCRA 312). !
BAIL WHEN NOT REQUIRED
!Instances when bail is NOT necessary or when recognizance is sufficient !
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1. When the offense charged is for violation of an ordinance, a light, or a criminal offense, the imposable penalty of which does not exceed 6 months imprisonment and/or Php 2,000 fine, under circumstances provided under RA 6036 (An Act providing that bail shall not, with certain exceptions, be required In cases of violations of municipal or city ordinances and in light offenses);
2. Where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case the court, in its discretion, may allow his release on a reduced bail or on his own recognizance;(Sec. 16, Rule 114)
3. Where the accused has applied for probation, pending the resolution of the case but no bail was filed or the accused is incapable of filing one (Sec. 24, Rule 114);
4. In case of a youthful offender held for a physical and mental examination, trial, or appeal, if he is unable to furnish bail and under circumstances envisaged in PD 603 (Child and Youth Welfare Code) as amended.
5. Before final conviction, all juveniles charged with offenses falling under the Revised Rule on Summary Procedure shall be released on recognizance to the custody of their parents or other suitable person who shall be responsible for the juveniles’ appearance in court whenever required (Sec. 15, A.M. No. 02-1-18-SC). !
INCREASE OR REDUCTION OF BAIL
!Reduction and increased in the amount of bail !After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period (Sec. 20, Rule 114). !NOTE: A motion to reduce the amount of bail likewise requires a hearing before it is granted in order to afford the prosecution the chance to oppose it (Sec. 18, Rule 114). !Excessive bail may not be imposed because that is tantamount to denying bail. !When accused does not have financial ability to post the bail initially fixed by the court !The accused may move for its reduction by submitting documents and affidavits that may warrant his claim for reduction (Sec.3 A.M. No. 12-11-2-SC). !Priority of Hearing for motion for reduction of bail !
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Such motion shall enjoy priority in the hearing of cases (Sec. 2 A.M. No. 12-11-2-SC). !The order fixing the amount of the bail shall not be subject to appeal (Sec. 4 A.M. No. 12-11-2-SC) !Release after service of minimum imposable penalty. !The accused who has been detained for a period at least equal to the minimum of the penalty for the offense charged against him shall be ordered released, motu proprio or on motion and after notice and hearing, on his own recognizance without prejudice to the continuation of the proceedings against him [Sec. 5 A.M. No. 12-ll-2-SC citing Sec. 16, Rule 114 of the Rules of Court and Sec. 5 (b) of RA l0389]. !
FORFEITURE AND CANCELLATION OF BAIL !Effects of the failure of the accused to appear in court when so required !1. The bail shall be declared forfeited; or 2. The bondsman is given 30 days within which to:
a. Produce their principal or give the reason for his non-production; and b. Explain why the accused did not appear before the court when first
required to do so. !Liability of the bondsmen if due to failure to produce their principal, give the reason for his non-production, or explain why the accused did not appear when required !If the bondsmen fail to comply with their obligations, the court will render judgment against the bondsmen jointly and severally if there are more than one bondsman (Sec. 21, Rule 114). !NOTE: The court shall not reduce or mitigate the liability of the bondsmen unless the accused has been surrendered or is acquitted (Sec. 21, Rule 114). The 30-day period granted to the bondsmen to comply with the two requisites for the lifting of the order of forfeiture cannot be shortened by the court but may be extended for good cause shown. !Cancellation of bail !Upon the application of the bondsmen with due notice to the prosecutor, bail may be cancelled upon: 1. Surrender of the accused; and 2. Proof of death of the accused (Sec. 22, Rule 114). !
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Automatic cancellation of bail !Upon:
1. Acquittal of the accused; 2. Dismissal of the case; and 3. Execution of judgment of conviction (Sec. 22, Rule 114). !
NOTE: In all instances of cancellation of bail, automatic or otherwise, it shall be without prejudice to any liability on the part of the surety. !Order of forfeiture v. Order of cancellation !
!APPLICATION FOR BAIL IS NOT A BAR TO OBJECTIONS IN ILLEGAL ARREST;
LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION !Objection in illegal arrest or lack of or irregularity or lack of preliminary investigation
!An application for bail is not a bar to objections in illegal arrest or irregularity or lack of preliminary investigation, provided that he raises them before entering his plea. The court shall resolve the matter as early as possible, not later than the start of the trial on the case (Sec. 26, Rule 114). !Q: Paolo was charged with estafa. Thereafter, he was arrested by virtue of a warrant of arrest issued by the RTC. Before arraignment, Paolo filed an application for bail. Paolo then filed a motion to quash information on the ground that it charges more than one offense. RTC denied bail to Paolo on the ground that an application for bail and a motion to quash are inconsistent remedies. Is the RTC correct?
ORDER OF FORFEITURE
ORDER OF CANCELLATION
Conditional a n d interlocutory. It is not appealable.
Not independent of the order of forfeiture. It is a j u d g m e n t u l t i m a t e l y determining the liability of the surety thereunder and t he re fo re final. Execution m a y i s s u e a t once.
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!A: No. There is no inconsistency in filing an application of an accused for bail and his filing of a motion to quash. The purpose of bail is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial. On the other hand, a motion to quash an information is the mode by which an accused assails the validity of a criminal complaint or information filed against him for insufficiency on its face in point of law, or for defects which are apparent on the face of the information. !These two reliefs have objectives which are not necessarily antithetical to each other. The right of an accused to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic (Serapio v. Sandiganbayan, G.R. Nos. 148468, 148769 & 149116, January 28, 2003). !
HOLD DEPARTURE ORDER AND BUREAU OF IMMIGRATION WATCHLIST !Hold Departure Order (HDO) !Order issued by the Secretary of Justice or the proper RTC commanding the Commissioner of the Bureau of Immigration to prevent the departure for abroad of Filipinos and/ or aliens named therein by including them in the Bureau’s Hold Departure List(DOJ Dept. Order No. 17). !NOTE: The proper court may issue an HDO or direct the Department of Foreign Affairs to cancel the passport of the accused. This is a case of a valid restriction on a person’s right to travel so that he may be dealt with in accordance with the law (Silverio v. CA GR No. 94284, April 8, 1991). !Who may issue an HDO
!A hold departure order may be issued either by: !
1. The RTC pursuant to SC Circular 39-97;
2. By the RTC sitting as a Family Court pursuant to A.M. No. 02-11-12-SC; or
3. By the DOJ pursuant to Department Order No. 41.
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!NOTE: SC Circular 39-97 (June 19, 1997), "limits the authority to issue HDO to the RTCs. Considering that only the RTC is mentioned in said Circular and by applying the rule on legal hermeneutics of express mention implied exclusion, courts lower than the RTC — such as the MeTC, MTC, MTCC and MCTC — has no authority to issue hold departure orders in criminal cases (A.M. No. 99-9-141-MTCC November 25, 1999). !HDO when issued !HDO shall be issued only in criminal cases within the exclusive jurisdiction of the RTCs (SC Circular 39-97) upon proper motion of the party. !Effect of the acquittal of the accused or dismissal of the case to the hold departure order issued by the RTC !Whenever (a) the accused has been acquitted; or (b) the case has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the HDO issued. The Court concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal promulgated or the order of dismissal issued within 24 hours from the time of promulgation/issuance and likewise through the fastest available means of transmittal. !Instances when DOJ may issue an HDO !1. Against an accused irrespective of nationality, in criminal case falling within
the jurisdiction of courts below the RTCs; !NOTE: If the case against the accused is pending trial, the application under oath of an interested party must be supported by: a) certified true copy of the complaint or information; and b) a certification from the Clerk of Court concerned that the criminal case is pending. !If the accused has jumped bail or has become a fugitive of justice, the application under oath of an interested party must be supported by: a) a certified true copy of the complaint or information; b) a certified true copy of the warrant or order of arrest; and c) a certification from the Clerk of Court concerned that the warrant or order of arrest was returned unserved. !2. Against an alien whose presence is required either as a defendant,
respondent or a witness in a civil or labor case pending litigation, or any case before an administrative agency;
3. Against any person motu proprio, or upon the request of the Head of a Department of the Government, head of a constitutional body or commission; the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the legislature; when the adverse party is
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the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health (DOJ Department Circular No. 41). !
NOTE: An HDO issued by the DOJ shall be valid for 5 years from the date of its issuance unless sooner terminated (Sec. 4, DOJ Circular No. 41). !Grounds for the cancellation of an HDO issued by the DOJ !1. When the validity of the HDO has already expired; 2. When the accused subject of the HDO has been allowed to leave the country
during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/ order of arrest has been recalled; or
3. When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country (Sec. 5, DOJ Department Order No. 41).
4. When the HDO/WLO was issued by the Secretary of Justice either motu proprio or upon request of government functionaries/ agencies, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health, may be lifted or recalled ANYTIME if the application is favorably indorsed by the Government functionaries/ offices who requested the issuance of the HDO/WLO (Sec. 5, DOJ Department Circular No. 41). !
Instances for the issuance of a Watch List Order (WLO) !1. Against the accused, irrespective of nationality in criminal cases pending
trial before the RTC or before courts below the RTCs; 2. Against the respondent, irrespective of nationality in criminal cases pending
Preliminary Investigation, Petition for Review or Motion for Reconsideration BEFORE the DOJ or any of its provincial or city prosecution offices;
3. The Secretary of Justice may likewise issue a WLO against any person, either motu proprio or upon request of any government agencies, including commissions, task forces or similar entities created by the Office of the President, pursuant to the “Anti- Trafficking of Persons Act of 2003” (RA 9208) and/ or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health(Section 2, DOJ Department Order 41). !
Period of Validity of a WLO !A WLO issued shall be valid for 60 days unless sooner terminated or extended, for a non-extendible period of not more than 60 days (Sec. 4, DOJ Dept. Order No. 41).
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!Permission to leave the country !Permission to leave the country should be filed in the same court where the case is pending because they are in the best position to judge the propriety and implication of the same(Santiago v. Vasquez, G.R. No. 99289-90, January 27, 1993). !Remedy against an HDO/ WLO !A WLO may be attacked by filing a motion for cancellation or by getting an Allow Departure Order from the DOJ or by filing a Motion to Lift Hold Departure Order. !Allow Departure Order (ADO) !An ADO is a directive that allows the traveler to leave the territorial jurisdiction of the Philippines. This is issued upon application to the Commissioner of Immigration and the appropriate government agency (An outline of Philippine Immigration and Citizenship Laws, Volume I, Atty. Rolando P. Ledesma, p. 34). !Period for the issuance of ADO !Any person subject of an HDO/ WLO pursuant to Department Order No. 41, who intends, for some exceptional reasons, to leave the country may, upon application under oath with the Secretary of Justice, be issued an ADO upon submission of the following requirements: !1. Affidavit stating clearly the purpose, inclusive period of the intended travel,
and undertaking to immediately report to the DOJ upon return; and 2. Authority to travel or travel clearance from the court or appropriate
government office where the case upon which the issued HDO/ WLO was based is pending or from the investigating prosecutor in charge of the subject case. !
Remedy of a person who is not the same person whose name appears in the HDO/ WLO !Any person who is prevented from leaving the country because his/ her name appears to be the same as the one that appears in the HDO/ WLO may upon application under oath obtain a Certification to the effect that said person is not the same person whose name appears in the issued HDO/ WLO upon submission of the following requirements: !1. Affidavit of Denial; 2. Photocopy of the page of the passport bearing the personal details; 3. Latest clearance from the National Bureau of Investigation; and
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4. Clearance from the court or appropriate government agency when applicable. !
Bail in Extradition Cases
!1. While our extradition law does not provide for the grant of bail to an
extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the constitution.
2. While extradition is not a criminal proceeding, it still entails a deprivation of liberty on the part of the potential extraditee and furthermore, the purpose of extradition is also the machinery of criminal law.
3. The Universal Declaration of Human Rights applies to deportation cases, hence, there is no reason why it cannot be invoked in extradition cases.
4. The main purpose of arrest and temporary detention in extradition cases is to ensure that the potential extraditee will not abscond.
5. Under the principle of pacta sunt servanda, the Philippines must honor the Extradition Treaty it entered into with other countries. Hence, as long as the requirements are satisfactorily met, the extraditee must not be deprived of his right to bail (Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, Apr. 19, 2007). !
NOTE: The required proof of evidence is “clear and convincing evidence” and not preponderance of evidence nor proof beyond reasonable doubt. The burden of proof lies with the extraditee (Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, Apr. 19, 2007). !Rule regarding bail in deportation proceedings !It is available, however bail in deportation proceedings is wholly discretionary. !
RIGHTS OF THE ACCUSED RULE 115 !
The rule enumerates the rights of a person accused of an offense which are both constitutional as well as statutory, save the right to appeal, which is purely statutory in character. !
RIGHTS OF ACCUSED AT THE TRIAL !Rights of the accused at the trial !1. Right to be presumed innocent; 2. Right to be informed of the nature and the cause of the accusation against
him;
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3. Right to be present and defend in person and by counsel at every stage of the proceeding;
4. Right to counsel; 5. Right to testify as a witness in his own behalf; 6. Right against self-incrimination; 7. Right to confront and cross examine witnesses against him at trial; 8. Right to compulsory process; 9. Right to a speedy, impartial and public trial; and 10.Right to appeal on all cases allowed by law and in the manner prescribed by
law (Sec. 1, Rule 115). !Right of Presumption of Innocence !The right means that the presumption must be overcome by evidence of guilt beyond reasonable doubt. The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required. Conviction should be based on the strength of the prosecution and not on the weakness of the defense. The significance of this is that accusation is not synonymous with guilt (People v. Angus, GR No. 178778, August 3, 2010). !Reasonable doubt !The doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty is not demanded by law to convict of any criminal charge but moral certainty is required as to every proposition of proof requisite to constitute the offense (Sec. 2, Rule 133). !Equipoise Rule !Where the evidence of the parties in a criminal case is evenly balanced, the constitutional presumption of innocence should tilt in favor of the accused who must be acquitted (People v. Erguiza, GR No. 171348, November26, 2008). !XPNs to Presumption of Innocence !1. In cases of self-defense, the person invoking self defense is presumed guilty.
In this case, a reverse trial will be held. 2. The legislature may enact that when certain facts have been proved, they
shall be prima facie evidence of the existence of guilt of the accused and shift the burden of proof provided there be a rational connection between the facts proved and the ultimate fact presumed so that the inference of the one from proof of the other is not an unreasonable and arbitrary experience (People v. Mingoa, G.R. No. L-5371, March 26, 1953). !
Reverse trial
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!A reverse trial happens if the accused admits the killing but claims self-defense. He must first establish the elements of self-defense in order to overturn the presumption that he was guilty of the offense. !Q: In a case of rape, the court ordered the accused to present evidence ahead of the prosecution. Is the court order correct? Why? !A: No. It violated the right of the accused to be presumed innocent and the right to due process. In fact, it violated the order of the presentation of evidence. The accused has the right not to take the witness stand (Albano P. 1114 citing Alejandro v. Pepito). !Accused’s right to be informed !The right requires that the information should state the facts and circumstances constituting the crime charged in terms sufficient to enable a person of common understanding to know what offense is being charged. !Rule regarding waiver of right to be informed !The right to be informed may not be waived. It is a basic constitutional right of the accused to be informed of the nature and cause of accusation against them. !Q: Noque was convicted for the crime of selling and possessing methamphetamine hydrochloride. On appeal, Noque claimed that his conviction violated his right to be informed of the nature and cause of the accusations against him since the charges in the Information are for selling and possessing methamphetamine hydrochloride but what was established and proven was the sale and possession of ephedrine. Is the appellant’s right to be informed of the nature and cause of accusation violated? !A: No. The Information filed was for the crimes of illegal sale and illegal possession of regulated drugs. Ephedrine has been classified as a regulated drug; it is classified as the raw material of shabu. Under Secs. 4 and 5, Rule 120 of the Rules of Court, 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. At any rate, a minor variance between the information and the evidence does not alter the nature of the offense, nor does it determine or qualify the crime or penalty, so that even if a discrepancy exists, this cannot be pleaded as a ground for acquittal(People v. Noque GR No. 175319, January 15, 2010). !Instances when the presence of the accused is mandatory in criminal proceedings !
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1. During arraignment [Sec.1(b), Rule 116]; 2. Promulgation of judgment except when the conviction is for a light offense,
in which case, it may be pronounced in the presence of his counsel or a representative (Sec.6, Rule 120); and
3. When ordered by the court for purposes of identification (Sec.1, Rule 115) !NOTE: Such requirement has no application to the proceedings or to the entry and promulgation of the judgments before the CA and SC. The defendant need not be present during the hearing of the appeal (Sec. 9, Rule 124). Waiver of right to be present during the trial !Right to be present may be waived by: 1. A waiver pursuant to the stipulation set forth in his bail; 2. Absence of the accused without justifiable cause at the trial of which he had
notice shall be considered a waiver of his right to be present thereat; and 3. If the accused jumps bail, such shall be an automatic waiver of the right to
be present on all subsequent trial dates until custody over him is regained [Sec. 1(c), Rule 115]. !
NOTE: The accused may be compelled to be present despite waiver for purposes of identification, but if the accused manifests in open court that he is indeed the accused, such shall also be considered a waiver thereof. !Effects of waiver of the right to appear by the accused !1. It is also a waiver to present evidence; 2. Prosecution can present evidence despite the absence of the accused; and 3. The court can decide even without accused’s evidence. !Q: As counsel of an accused charged with homicide, you are convinced that he can be utilized as a State witness. What procedure will you take? Explain. (2006 Bar Question) !A: As counsel for the accused, I will advise my client to ask for a reinvestigation and convince the prosecutor for him to move for the discharge of my client as a State witness or the accused can apply as a State witness with the Department of Justice pursuant to RA 6981, the Witness Protection, Security and Benefit Act. The right to prosecute vests the prosecutor with a wide range of discretion, including what and whom to charge. !Effect of the accused's refusal to testify !GR: The silence of the accused should not be used against him. !XPNs:
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1. When the prosecution has already established a prima facie case, the accused must present proof to overturn the evidence; and
2. If the defense of the accused is alibi and he does not testify, the inference is that the alibi is not believable. !
Scope of the right against self-incrimination !GR: The right covers only testimonial compulsion and not the compulsion to produce real and physical evidence using the body of the accused (Schmerber v. California, 384 US 757). !XPNs: Immunity statutes such as: 1. Forfeiture of illegally obtained wealth (RA 1379) 2. Bribery and graft cases (RA 749) (Herrera, Vol. IV, p. 563, 2007 ed.). !NOTE: The right against self-incrimination is available not only in criminal cases but also in government proceedings, civil, and administrative proceedings where there is a penal sanction involved. !Purpose of the right against self-incrimination !The privilege is intended to prevent the State, with all its coercive powers, from extracting from the suspect testimony that may convict him and to avoid a person subject to such compulsion to perjure himself for his own protection (People v. Bersonia, 422 SCRA 210). !Rule regarding waiver of right of the accused against self-incrimination !It may be waived by the failure of the accused to invoke the privilege after the incriminating question is asked and before his answer. !Q: Does the right against self-incrimination include the furnishing of a signature specimen? !A: Yes. Writing is not a purely mechanical act for it involves the application of intelligence and attention. If such person is asked whether the writing in a document is his or not, and he says it is not, he is deemed to have waived his right. On the other hand, if the accused simply refused to answer the question inquiring about the handwriting, no waiver of the right took place (Beltran v. Samson G.R. No. 32025, September 23, 1929). !Confrontation !The act of setting a witness face-to-face with the accused so that the latter may make any objection he has to the witness which must take place in the court having jurisdiction to permit the privilege of cross-examination. In addition, the
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accused is entitled to have compulsory process issued to secure the attendance of witness and production of other evidence in his behalf [Sec. 1 (g), Rule 115]. !NOTE: The main purpose of this right to confrontation is to secure the opportunity of cross-examination and the secondary purpose is to enable the judge to observe the demeanor of witness. !Rule regarding the waiver of right to cross-examination !The right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record (Equitable PCI Banking Corporation v. RCBC Capital Corporation, GR No. 182248, December 18, 2008; People v. Abatayo, 433 SCRA 562). !Q: Does the right to confrontation cover witnesses who did not appear or was not presented at the trial? !A: No. The right to confrontation applies only to witnesses who appear before the court; the witness must be present for the right to confrontation to attach. What is important is that the accused is given the right to cross-examine the witness presented (People v. Honrada, G.R. Nos. 112178-79, Apr. 21, 1995). !Rule regarding the testimony of a witness who dies or becomes unavailable !If the other party had the opportunity to cross-examine the witness before he died or became unavailable, the testimony may be used as evidence. However, if the other party did not have the opportunity to cross-examine before the death or unavailability of the witness, the testimony will have no probative value. !Right to compulsory process !The accused may move for the issuance of subpoena ad testificandum or subpoena duces tecum in his behalf in order to compel the attendance of witnesses and the production of other evidence. !NOTE: If a witness refuses to testify when he is required, the Court should order the witness to give bail or order his arrest, if necessary. Failure to obey a subpoena amounts to contempt of court. !Facts to be considered to determine whether the right to speedy trial has been violated !
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1. Length of the delay; 2. Reason for the delay; 3. The accused’s assertion or non-assertion of the right; and 4. Prejudice to the accused resulting from the delay (Ombudsman v. Jurado,
G.R. No. 154155, August 6, 2008; Tan v. People, G.R. No. 173637, April 21, 2009).
NOTE: There is no violation of the right where the delay is imputable to the accused. !Duty of the trial court, public or private prosecutor, and the defense counsel to observe time limits !Compliance with the following time limits in the prosecution of the case against a detained accused is required: 1. The case of the accused shall be raffled and referred to the trial court to
which it is assigned within 3 days from the filing of the information; 2. The court shall arraign the accused within 10 days from the date of the raffle; 3. The court shall hold the pre-trial conference within 30 days after arraignment
or within 10 days if the accused is under preventive detention; provided, however, that where the direct testimonies of the witnesses are to be presented through judicial affidavits, the court shall give the prosecution not more than 20 days from arraignment within which to prepare and submit their judicial affidavits in time for the pre-trial conference;
4. After the pre-trial conference, the court shall set the trial of the case in the pre-trial order not later than 30 days from the termination of the pre-trial conference; and
5. The court shall terminate the regular trial within one hundred 180 days, or the trial by judicial affidavits within 60 days, reckoned from the elate trial begins, minus the excluded delays or postponements specified in Rule 119 of the Rules of Court and the Speedy Trial Act of 1998 (Sec. 8 A.M. No. 12-11-2-SC). !
Denial of right to speedy trial a ground for dismissal !The case against the detained accused may be dismissed on ground of denial of the right to speedy trial in the event of failure to observe the above time limits (Sec. 9 A.M. No. 12-11-2-SC). !Service of subpoena and notices through electronic mail or mobile phones !Subpoena and notices may be served by the court to parties and witnesses through electronic mails (e-mail) or through mobile phone either through phone calls or through short messaging service (SMS) (Sec. 11 A.M. No. 12-ll-2-SC). !Ways of ascertaining proper service of notice of hearing or subpoena !
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1. The public prosecutor shall, during inquest or preliminary investigation, require the complainant and his witnesses and, in proper cases, the police officers who witnessed the commission of the crime subject of the investigation, to leave with him their postal and e-mail addresses and mobile phone numbers for use in summoning them when they need to appear at the hearings of the case.
2. When requesting the court to issue a subpoena or subpoena duces tecum for their witnesses, the parties shall provide the court with the postal and e-mail addresses and mobile phone numbers of such witnesses.
3. The service of notice of hearing or subpoena at the postal address, e-mail address, or through mobile phone number shall be proved by any of the following: a. An officer's return or affidavit of service if done by personal service, or by
registry return card; b. Printouts of sent e-mail and the acknowledgment by the recipient; c. Printouts of electronic messages transmitted through the court's
equipment or device and the Acknowledgment by the recipient; or d. Reports of phone calls made by the court.
4. The postal and e-mail addresses as well as the mobile phone numbers supplied by the parties and their witnesses incident to court cases shall be regarded as part of the judicial processes in those cases. Consequently, any person who uses the same without proper authority or for purposes other than sending of court notices shall be deemed guilty of indirect contempt and accordingly punished.
5. In cases of police officers whose testimonies arc essential to the prosecution of the case, service of the notice of hearing or subpoena on them shall be made through the police unit responsible for the arrest and prosecution of the accused, copy furnished the Personnel Department of the Philippine National Police. It shall be the responsibility of the head of that police unit to ensure the transmission of the notice or subpoena to the addressee. Service upon the police unit shall be deemed service upon such police officers.
6. The court shall cause the service of a copy of the order of provisional dismissal upon the offended party in the manner provided above (Sec. 12 A.M. No. 12-11-2-SC). !
Establishment of Local Task Force Katarungan at Kalayaan !1. The Court shall establish a Task Force Katarungan at Kalayaan in appropriate
places for the purpose of eliminating unnecessary detention. It shall be chaired by an RTC Judge, with a Metropolitan or Municipal Trial Court Judge as vice-chairman, both to be appointed for a term of two years by the Executive Judge of the place. The city or provincial prosecutor of the place or his representative and the local head of the Public Attorney's Office or his representative shall be members of the Task Force. The assistance of the local Bureau of Jail Management and Penology and the Office of the Provincial Governor may be enlisted.
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2. The Task Force shall track and keep a record of the progress of the criminal cases of all detained persons within their jurisdiction and ensure that such persons are accorded the rights and privileges provided by law, the rules, and these guidelines.
3. Each court shall maintain a "Detainees Notebook," that shall be supplied free by the Office of the Court Administrator and shall contain: a. The full name of the accused; b. The docket number and title of the case c. The kind of crime charged; d. The date his detention began; e. The date when his detention becomes equal to the minimum of the
imposable penalty; f. The date when his detention becomes equal to the maximum imposable
penalty; g. The date of arraignment; (viii) the date of pre-trial hearing or
conference; h. The first day of trial; i. The statutory last clay of trial if no excluded delays or postponements
arc incurred; j. Sufficient space for entering the progress of the hearing of the case; and k. Such other data as may be essential to the monitoring of his or her case.
One (1) copy of the notebook shall be attached to the record of the case and other copy kept by the jail warden which copy shall be brought with the accused at the bearing.
l. The branch clerk of court shall update the two copies of the notebook at every hearing by stating what action the court has taken in it, the next scheduled hearing, and what action the court will further take on the case.
4. The Task Force shall have access to all case records and information relating to detained persons and shall advise the judges hearing their cases, when warranted, of the need for them to act on any incident or situation that adversely affects the rights of detained persons or subject them to undue or harsh treatment.
5. The Office of the Chief Justice shall exercise direct supervision over all such Task Forces (Sec. 15 A.M. No. 12-11-2-SC). !
Q: Is the rule that the trial should be public absolute? !A: No. The court may bar the public in certain cases, such as when the evidence to be presented may be offensive to decency or public morals; or in rape cases, where the purpose of some persons in attending is merely to ogle at the parties. !The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties (Sec. 21, Rule 119).
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!Rule regarding trial by publicity !The right of the accused to a fair trial is not incompatible with free press. Pervasive publicity is not per se prejudicial to the right to a fair trial. To warrant the finding of prejudicial publicity, there must be allegations and proof that judges have been unduly influenced, not simply that they might be due to the barrage of publicity (People v. Teehankee, G.R. Nos. 111206-08, October 6, 1995). !Nature of the right to appeal !The right to appeal from a judgment of conviction is fundamentally of statutory origin. It is not a matter of absolute right independently of constitutional or statutory provision allowing such appeal. !Rule regarding waiver of right to appeal !GR: The right to appeal can be waived expressly or impliedly. !XPN: Where the death penalty is imposed, such right cannot be waived as the review of the judgment by the CA is automatic and mandatory pursuant to Administrative Circular No. 20-2005 which is an order directing regional trial courts to directly forward to the CA records of criminal cases which are subject of automatic review or regular appeals. !
RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION !Custodial Investigation !It is the questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lend itself to eliciting incriminating statements that the rule begins to operate (Aquino v. Paiste, G.R. No. 147782, June 25, 2008). !NOTE: Sec. 2(f) of RA 7438 expanded the meaning of custodial investigation to include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law. !Period of the attachment of the rights of the accused in custodial investigation !
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The rights begin to operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime and direction is then aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory question which tend to elicit incriminating statements (People v. Jose Ting Lan Uy, G.R. No. 157399, November 17, 2005). It includes the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed. !Requisites of a valid custodial investigation report !RA 7438 provides for the following requisites for a valid custodial investigation report: 1. The report shall be reduced to writing by the investigating officer; 2. If the person arrested or detained does not know how to read or write, it
shall be read and adequately explained to him by his counsel or by the assisting counsel in the language or dialect known to such arrested or detained person. This is to be done before the report is signed. If this procedure is not done, the investigation report shall be null and void and of no effect whatsoever. !
Rights of persons under Custodial Investigation !1. The person arrested, detained, invited or under custodial investigation must
be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; every other warnings, information or communication must be in a language known to and understood by said person;
2. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made;
6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means - telephone, radio, letter or messenger - with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-
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government organization. It shall be the responsibility of the officer to ensure that this is accomplished;
7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must cease if it has already begun;
10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements;
11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence (People v. Mahinay, G.R. No. 122485, February 1, 1999). !
Importance of the right to counsel in custodial investigation !The importance of the right to counsel is so vital that under existing law, “in the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Art. 125 of the RPC [Sec. 3(c), RA 7438]. !NOTE: The purpose of providing counsel to a person under custodial investigation is to curb the uncivilized practice of extracting a confession (People v. Duenas, Jr. 426 SCRA 666). !Distinction between the right to counsel during trial and right to counsel during custodial investigation !Right to counsel during trial means the right of the accused to an effective counsel. Counsel is not to prevent the accused from confessing but to defend the accused. !On the other hand, right to counsel during custodial investigation requires the presence of competent and independent counsel who is preferably the choice of the accused. The reason for such right is that in custodial investigation, there is a danger that confessions can be exacted against the will of the accused since it is not done in public.
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!Rule regarding waiver of right to counsel during trial !It can be waived when the accused voluntarily submits himself to the jurisdiction of the court and proceeds with his defense. The accused may defend himself in person only if the court is convinced that he can properly protect his rights even without the assistance of counsel. The defendant cannot raise the question of his right to have an attorney for the first time on appeal. !This right may be waived but to insure that the waiver is voluntary and intelligent, the waiver must be in writing and in the presence of the counsel of the accused (People v. Del Castillo, 439 SCRA 601). The right to a competent and independent counsel is one of the rights of the accused guaranteed under Sec. 12(1) of Art. III of the Philippine Constitution. !Accused to defend himself without the aid of a counsel !Only when it sufficiently appears that he can properly protect his right without the assistance of counsel [Sec. 1(c), Rule 115]. !Q: Is the statement signed by the accused admissible if during the investigation, the assisting lawyer leaves, or comes and goes? !A: No. It is inadmissible because the lawyer should assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession (People v. Morial, G.R. No. 129295, August 15, 2001). !NOTE: The right to counsel covers the period beginning from custodial investigation until rendition of judgment and even on appeal (People v. Serzo, Jr., G.R. No. 118435, June 20, 1997). !Q: An affidavit was made by the accused without the presence of counsel during preliminary investigation, admitting the commission of a crime. When presented during trial as evidence, the accused objected claiming that there was a violation of his right to a competent and independent counsel. Is the accused correct? !A: No. The constitutional right to a competent and independent counsel exists only in custodial interrogations, or in-custody interrogation of accused persons. A preliminary investigation is an inquiry or a proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial. Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be considered as being under custodial investigation (People v. Ayson, G.R. No. L-28508-9, July 7, 1989).
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!Requisites for the validity of an extrajudicial confession made by a person arrested, detained or under custodial investigation !For an extrajudicial confession to be valid the following requisites must concur: 1. It shall be in writing and signed by the person arrested, detained or under
custodial investigation; 2. It must be signed in the presence of his counsel or in the latter’s absence,
upon a valid waiver and; 3. In the presence of any of the parents, elder brothers and sisters, his spouse,
the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him[Sec. 2(d), RA 7438]. !
Q: Two suspects during police investigation orally waived their right to remain silent and to counsel. They freely answered under oath the questions asked by the police desk officer. They later signed their sworn statements before the police captain who is also a lawyer. They both admitted their guilt. In due course, proper charges were filed by the City Prosecutor against both arrestees before the MM RTC. May the written statements signed and sworn by them be admitted by the trial court as evidence for the prosecution? (2004 Bar Question) !A: No. It will not be admitted in evidence because they were not assisted by counsel. Even if the police captain before whom they signed the statements was a lawyer, he cannot be considered as an independent counsel. Waiver of the right to a lawyer must be done in writing and in the presence of an independent and competent counsel. !
ARRAIGNMENT AND PLEA RULE 116 !
ARRAIGNMENT !Arraignment !It is the formal mode of implementing the constitutional right of the accused to be informed of the nature of the accusation against him (People v. Pangilinan, 518 SCRA 358, March 14, 2007). !Arraignment is the proceeding in a criminal case, whose object is to fix the identity of the accused, to inform him of the charge and to give him an opportunity to plead, or to obtain from the accused his answer, in other words, his plea to the information. !When made !
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GR: Arraignment must be made before start of the trial or before the prosecution presents its case. !
XPN: Arraignment which was made after the prosecution rested its case was considered a non-prejudicial error under the following:
1. Counsel of the accused failed to object lack of arraignment during trial 2. Counsel of the accused had full opportunity to cross-examine witnesses
(People of the Philippines vs. Atienza, G.R. No. L-3001, June 17, 1950; People of the Philippines vs. Cabale, G.R. Nos. 73249-50, May 8, 1990). !
NOTE: The purpose of arraignment is, thus, to apprise the accused of the possible loss of freedom, even of his life, depending on the nature of the crime imputed to him, or at the very least to inform him of why the prosecuting arm of the State is mobilized against him (Borja v. Mendoza, 77 SCRA 422). !Procedure of arraignment !1. It must be in open court where the complaint or information has been filed
or assigned for trial; 2. By the judge or clerk of court; 3. By furnishing the accused with a copy of the complaint or information; 2. Reading it in a language or dialect known to the accused(People v. Albert 251
SCRA 136); 3. Asking accused whether he pleads guilty or not guilty [Sec.1(a), Rule 116]; 4. Both arraignment and plea shall be made of record but failure to enter of
record shall not affect the validity of the proceedings.[Sec. 1(b), Rule 116] !NOTE: The accused must be arraigned before the court where the complaint or information was filed or assigned for trial [Sec. 1(a)] !Period of arraignment !GR: Arraignment shall be made within 30 days from the date the court acquires jurisdiction over the person of the accused [Sec. 1(g), Rule 116]. !XPNs: 1. When an accused is under preventive detention, his case should be raffled
within 3 days from filing and accused shall be arraigned within 10 days from receipt by the judge of the records of the case (RA 8493 Speedy Trial Act).
2. Where the complainant is about to depart from the Philippines with no definite date of return, the accused should be arraigned without delay.
3. Cases under RA 7610 (Child Abuse Act), the trial shall be commenced within 3 days from arraignment.
4. Cases under the Dangerous Drugs Act. 5. Cases under SC AO 104-96 ie., heinous crimes, violations of the Intellectual
Property Rights law, these cases must be tried continuously until terminated
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within 60 days from commencement of the trial and to be decided within 30 days from the submission of the case. !
Presence of the accused during arraignment !The accused must be present at the arraignment and personally enter his plea [Section 1(b), Rule 116]. !NOTE: Both arraignment and plea shall be made in record but failure to do so shall not affect the validity of the proceedings [Sec. 1(b), Rule 116]. !Presence of the offended party during arraignment !The private offended party shall be required to appear in the arraignment for the following purposes: 1. Plea bargaining; 2. Determination of civil liability; and 3. Other matters requiring his presence [Sec. 1(f), Rule 116]. !NOTE: In case the offended party fails to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone [Section 1(f), Rule 116]. !Different rules on arraignment !1. Trial in absentia may be conducted only after valid arraignment. 2. Accused must personally appear during arraignment and enter his plea
(counsel cannot enter plea for accused) 3. Accused is presumed to have been validly arraigned in the absence of proof to
the contrary. !GR: Judgment is void if accused has not been validly arraigned. !XPN: If accused went into trial without being arraigned, subsequent arraignment
will cure the error provided that the accused was able to present evidence and cross examine the witnesses of the prosecution during trial. !
Right to counsel de officio !A: No. While the right to be represented by counsel is immutable, his option to secure the services of counsel de parte, however, is not. The court may restrict the accused’s option to retain a counsel de parte if the accused insists on an attorney he cannot afford, or chooses a counsel who is not a member of the bar, or when the attorney declines to represent the accused for a valid reason, such as conflict of interests (People v. Servo, G.R. No. 119217, January 19, 2000).
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!Persons allowed to be appointed as counsel de officio !1. Members of the bar with good standing; 2. Has the ability, experience and competence to defend the accused; and 3. In localities where such members of the bar are not available, the court may
appoint any person who is a resident of such province with good repute for probity and ability, to defend the accused (Sec. 7, Rule 116). !
NOTE: Whenever a counsel de officio is appointed by the court, he shall be given reasonable time to consult with the accused as to his plea before proceeding with arraignment (Sec. 8, Rule 116). !Duties of a counsel de officio when the accused is imprisoned !1. Promptly undertake to obtain the presence of the prisoner for trial, or 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.
2. Upon receipt of the notice, the person having custody of the prisoner shall promptly advise the prisoner of the charge and of his right to demand trial. If at any time thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney.
3. Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. !NOTE: Public Attorneys referred to in this section are those attorneys of the Public Attorney’s Office of the Department of Justice who are assisting accused who are not financially capable to have a counsel of their own. These public attorneys enter their appearance in behalf of the accused upon his request or that of his relative or upon being appointed as counsel de officio by the court. !
4. When the person having custody of the prisoner receives from the attorney a properly supported request for the availability of the prisoner for purposes of the trial, the prisoner shall be made available accordingly(Sec. 7, Rule 119). !
Grounds for suspension of arraignment !Upon motion by the proper party on the following grounds: 1. The 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;
2. There exists a valid prejudicial question; 3. A petition for review of the resolution of the prosecutor is pending at the
Department of Justice or the Office of the President (Sec. 11, Rule 116),
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provided that the period of suspension shall not exceed 60 days counted from the filing of the petition;
4. There are pending incidents such as: a. Motion to Quash b. Motion for Inhibition c. Motion for Bill of Particulars !
NOTE: The period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office (Sec. 11, Rule 116). !
PLEA-BARGAINING
!Plea !It pertains to the matter which the accused, on his arraignment, alleges in answer to the charge against him. !Plea Bargaining !Plea bargaining in criminal cases is a process whereby the accused and the prosecution work a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi- count indictment in return for a lighter sentence than that for the graver charge (Daan v. Sandiganbayan GR No. 163972-77, March 28, 2008). !NOTE: It is to be noted that the decision to accept or reject a plea bargaining agreement is within the sound discretion of the court subject to certain requirements of statutes or rules (Amante-Descallar v. Judge Ramas 582 SCRA 22). !Instances when a plea of NOT guilty is entered !1. When the accused so pleaded; 2. When he refuses to plead [Sec. 1(c)]; 3. Where in admitting the act charged he sets up matters of defense or with
lawful justification; 4. When he enters a conditional plea of guilty [Sec. 1(c)]; 5. Where after a plea of guilty but presents exculpatory circumstances, his plea
shall be deemed withdrawn and a plea of not guilty shall be entered for him [Sec. 1(d)];
6. When the plea is indefinite or ambiguous. !Q: Fredo was charged with murder attended by treachery and evident premeditation. During arraignment, Fredo, assisted by counsel, pleaded guilty with qualification “hindi ko sinadya patayin”. His counsel assured the
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court that he fully apprised Fredo of the information, the nature of the charge, and the consequences of his plea. Fredo even waived the prosecution’s presentation of evidence against him. The court convicted him of murder. Was the plea of guilty entered valid? (1996 Bar Examination) !A: No. The plea of guilty by Fredo with the qualification “Hindi ko sinadya patayin” was a conditional plea of guilty and hence a plea of not guilty should be entered for him [Sec. 1(c) of Rule 116]. Also, when the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea. The court should not rely on the assurance of the counsel of the accused for this purpose (Sec. 3, Rule 116). !Q: May the accused enter a plea of guilty to a lower offense? !A: Yes. 1. During arraignment
a. If the offended party is present, the latter must consent with the prosecutor to the plea; and
b. That the lesser offense is necessarily included in the offense charged. !2. After arraignment but before trial provided the following requisites are
present: a. The plea of guilty is withdrawn; b. The plea of not guilty and the withdrawal of the previous guilty plea shall
be made before trial; c. The lesser offense is necessarily included in the offense charged; and d. The plea must have the consent of the prosecutor and the offended party
(Sec. 2, Rule 116). !NOTE: No amendment of complaint or information is necessary (Sec. 2). A conviction under this plea shall be equivalent to a conviction of the offense charged for purposes of double jeopardy (People v. Magat, GR No. 130026, May 31, 2000).
3. After prosecution rests – Allowed only when the prosecution does not have
sufficient evidence to establish guilt for the crime charged. !Q: Luis was charged with homicide. Upon arraignment, however, the parties, with the acquiescence of the Public Prosecutor and the consent of the offended party, entered into plea bargaining where it was agreed that the accused would plead guilty to the lesser offense of attempted homicide instead of consummated homicide as originally charged in the information. Consequently, Judge Berde found Luis guilty beyond reasonable doubt of the lesser crime of attempted homicide in accordance with the plea bargaining agreement. Is Judge Berde correct? !
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A: No. One accused of homicide cannot be allowed to plead guilty to attempted or frustrated homicide, although the lesser offense is necessarily included in the offense charged. The reason is that the crime of homicide as defined in Art. 249 of the RPC necessarily produces death; attempted homicide does not (Amatan v. Aujero, A.M. No. RTJ-93-956, September 27, 1995). !Q: D was charged with theft of an article worth Php15,000.00. Upon being arraigned he pleaded not guilty to the offense charged. Thereafter, before trial commenced, he asked the court to allow him to change his plea of not guilty to a plea of guilty but only to estafa involving P5, 000.00. Can the court allow D to change his plea? Why? (2002 Bar Examination) !A: No. A plea of guilty to a lesser offense may be allowed if the lesser offense is necessarily included in the offense charged (Sec. 2, Rule 116). Estafa involving Php5, 000.00 is not necessarily included in theft of an article worth Php15,000.00. !
PLEA OF GUILTY BY ACCUSED
!Plea of guilty !A judicial confession of guilt (People v, Comendador, GR No. L-38000, September 19, 1980).It is an unconditional plea of guilt which admits of the crime and all the attendant circumstances alleged in the information including the allegations of conspiracy and warrants judgment of conviction without need of further evidence. !Effect of a plea of guilty !GR: A plea of guilty admits the truth of all material facts alleged in the information, including all the aggravating circumstance mentioned therein (People v. Koloh Pohong, GR No. L-32332, August 15, 1973). !XPNs: 1.Where the plea of guilt was compelled by violence or intimidation; 2.When the accused did not fully understand the meaning and consequences of
his plea; 3.Where the information is insufficient to sustain conviction of the offense
charged; 4.Where the information does not charge an offense, any conviction thereunder
being void; 5.Where the court has no jurisdiction. XPN to the XPN: If what the accused would prove is an exempting circumstance, it would amount to a withdrawal of his plea of not guilty.
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!NOTE: For non-capital offenses, the reception of evidence is merely discretionary on the part of the court (Sec. 4,Rule 116). If the information or complaint is sufficient for the judge to render judgment on a non-capital offense, he may do so. But if the case involves a capital offense, the reception of evidence to prove the guilt and degree of culpability of the accused is mandatory in which case, the accused may present evidence in his behalf and the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea (Sec. 3, Rule 116). !
WHEN ACCUSED PLEADS TO A CAPITAL OFFENSE
!Duty of the court after the accused pleads guilty to a capital offense !When the accused pleads guilty to a capital offense, the court shall: 1. Conduct a searching inquiry into the:
1. Voluntariness of the plea, and 2. Full comprehension of the consequences of the plea;
2. Require the prosecution to prove guilt and the precise degree of his culpability;
3. Ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires. However, the defendant after pleading guilty may not present evidence as would exonerate him completely from criminal liability such as proof of self-defense. !
NOTE: This procedure is mandatory, and a judge who fails to observe it commits grave abuse of discretion. The reason for this strictness is to assure that the State makes no mistake in taking life except the life of the guilty (People v. Diaz, 254 SCRA 735). !Purpose of the presentation of evidence after the plea of guilty !To preclude any room for reasonable doubt in the mind of either the trial court or of the Supreme Court, on review, as to the possibility that there might have been misunderstanding on the part of the accused as to the nature of the charges to which he pleaded guilty; and to ascertain the circumstances attendant to the commission of the crime which justify or require the exercise of greater or lesser degree of severity in the imposition of prescribed penalties (People v. Basa, 51 SCRA 317). !No collateral attack on plea of guilty !A plea of guilty entered by one who is fully aware of the direct consequences, including the actual value of any commitments made to him by court, the prosecutor or his own counsel must stand. !
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NOTE: It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired. !
SEARCHING INQUIRY
!Searching Inquiry !In conducting a searching inquiry, the following must be present: 1. The trial judge must satisfy himself that the accused has pleaded guilty out
of his voluntary will; 2. That the accused is truly guilty; 3. Based on the accused’s testimony, there exists a rational basis for a finding of
guilt (People vs. Dayot, G.R. No. 88281, July 20, 1990). !NOTE: It is more than a merely informing the accused the fact of facing a jail sentence but also of length of imprisonment under the law and the certainty of serving sentence at a national penitentiary or penal colony. Furthermore, the accused must not be under the misconception that a plea of guilty carries with it a more lenient treatment from the judge (People of the Philippines vs. Dayot, G.R. No. 88281, July 20, 1990). !Purpose of searching inquiry !To determine whether the plea of guilty was made voluntarily and whether the accused understood fully the consequence of his plea. !Duty of the judge to conduct a searching inquiry !In all cases, the judge must convince himself that: 1. The accused is entering the plea voluntarily and intelligently; 2. There exists a rational basis for finding of guilt based on accused’s testimony 3. Inform the accused of the exact length of imprisonment and the certainty
that he will serve it in a national penitentiary !NOTE: The case of People v. Pastor (379 SCRA 181) provided the following as guidelines on how judges must conduct a “searching inquiry”: 1. Ascertain from the accused himself (a) how he was brought into custody of the law;
(b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations;
2. Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty;
3. Elicit information about the personality profile of the accused; 4. Inform the accused of the exact length of imprisonment or nature of the penalty
under the law and the certainty that he will serve such sentence; 5. Inquire if the accused knows the crime with which he is charged and fully explain
to him the elements of the crime; !
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6. All questions posed to the accused should be in a language known and understood by the latter;
7. The trial judge must satisfy himself that the accused is truly guilty. !Q: Crisanto is charged with murder. At his arraignment the prosecution witnesses appeared in court together with the heirs of the victim. Realizing the gravity of the offense and the number of witnesses against him Crisanto consulted his counsel de officio who explained to him the nature of the charge and the consequences of his plea. Crisanto then manifested his readiness for arraignment. The information was read to him in a language he clearly understood after which he pleaded guilty. To be sure, the judge forthwith asked him if he indeed fully understood the implications of his plea and Crisanto readily and without hesitation answered in the affirmative. The judge, fully convinced that the plea of the accused was made with the latter’s full knowledge of the meaning and consequences of his plea, then pronounced sentence on the accused. !1. Comment on the action of the judge. Explain. 2. Suppose Crisanto with the assistance of counsel waives the presentation of
evidence by the prosecution saying that, after all, he has already entered his plea, may the court insist on the presentation of the evidence for the prosecution? Explain.
3. Suppose upon plea bargaining Crisanto decides to plead guilty to the lesser offense of homicide, may the court still require presentation of evidence? Explain.
4. After the information was read to Crisanto upon arraignment and he pleaded guilty to the charge but the facts did not sufficiently constitute an offense, did his plea of guilt which has already been entered in the records, have the effect of supplying what was not alleged in the information to complete the elements of the offense to justify his conviction? Explain (1995 Bar Examination). !
A: 1. The judge erred in pronouncing sentence on the accused without previously
conducting a searching inquiry into the voluntariness and full comprehension of the consequences of the plea of guilty and requiring the prosecution to prove the guilt and the precise degree of culpability (Sec. 3, Rule 116).
2. Yes, in accordance with Sec. 3, Rule 116 3. Although Crisanto pleads guilty to a non-capital offense the court may still
require evidence to determine the penalty to be imposed (Sec. 4, Rule 116). 4. No, his plea of guilty did not have the effect of supplying what was not
alleged in the information to complete the elements of the offense to justify his conviction. His plea merely admits the truth of the facts alleged in the information. !
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Q: Charged with the crime of murder before the RTC of Bulacan, the accused, assisted by counsel, pleaded guilty to the charge. Thereupon, the trial court rendered judgment convicting the accused for the crime of murder and sentencing him to suffer reclusion perpetua and to pay civil indemnity to the heirs of the victim. Did the trial court act properly? Why? !A: No. Sec. 3, Rule 116 applies not only to those cases in which death penalty is imposed but covers also cases in which reclusion perpetua is imposed. Thus, the requirement under Sec. 3 of Rule 116 must be complied with. !
WHEN ACCUSED PLEADS TO A LESSER OFFENSE
!When accused may enter plea of guilty to a lesser offense !An accused may enter a plea of guilty to a lesser offense provided that there is consent of the offended party and prosecutor to the plea of guilty to a lesser offense which is necessarily included in the offense charged. !Effect of plea of guilty without consent of offended party and prosecutor !If accused was convicted, the accused’s subsequent conviction of the crime charged would not place him in double jeopardy [Sec. 7(c), Rule 117]. !Period to enter pleas of guilty to a lesser offense !GR: Plea-bargaining is made during pre-trial stage of criminal proceedings. !XPN: The law still allows accused to change his plea thereafter provided that the prosecution does not have sufficient evidence to establish guilt of the crime charged (People vs. Valderama, G.R. No. 99287, June 23, 1992). !
IMPROVIDENT PLEA
!Improvident plea !It is a plea without information as to all the circumstances affecting it. It is based upon a mistaken assumption or misleading information or advice. !Instances of improvident plea !1. Plea of guilty was compelled by violence or intimidation; 2. The accused did not fully understand the meaning and consequences of his
plea; 3. Insufficient information to sustain conviction of the offense charged;
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4. Information does not charge an offense; or 5. Court has no jurisdiction. !Period to withdraw an improvident plea !The court may permit an improvident plea of guilty to be withdrawn, at any time before the judgment of conviction becomes final, and be substituted by a plea of not guilty. !NOTE: The withdrawal of a plea of guilty is not a matter of right to the accused but addressed to the sound discretion to the trial court (Sec. 5, Rule 116). !Effect of withdrawal of improvident plea !The court shall set aside the judgment of conviction and re-open the case for new trial. !
MOTION TO QUASH RULE 117 !
Motion to Quash
!It is a special pleading filed by the defendant before entering his plea, which hypothetically admits the truth of the facts spelled out in the complaint or information at the same time that it sets up a matter which, if duly proved, would preclude further proceedings.
!Period to file a motion to quash an information or complaint
!GR: At any time before entering his plea, the accused may move to quash the
information or complaint (Sec. 1, Rule 117).
!XPN: Instances where a motion to quash may be filed AFTER plea:
1. The facts charged do not constitute an offense
2. Lack of jurisdiction over the offense charged
3. The criminal action or liability has been extinguished
4. Double Jeopardy (Sec. 9, Rule 117) !
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!Who may initiate motion to quash
!The right to file a motion to quash belongs only to the accused. The court is not authorized to motu proprio initiate a motion to quash by issuing an order requiring an explanation why the information should not be quashed. The court, though, has the discretion to dismiss the case if the information is not sufficient or on any ground provided by law, or to dismiss the information for a different one.
!Purpose of motion to quash
!The designated purpose of a motion to quash is to assail the validity of the criminal information for defects or defenses apparent on the face of the information (Galzole y Soriaga v. Briones and People, G.R. No. 164682, September 14, 2001).
!Form and contents to motion to quash
1. In writing; 2. Signed by the accused or his counsel; and 3. Specify distinctly the factual and legal grounds on which it is based (Sec. 2,
Rule 117). !NOTE: The court shall not consider any other ground other than those specifically stated in the motion to quash except lack of jurisdiction over the offense charged and when the information does not charge an offense (Sec. 2, Rule 117).
!GROUNDS !
Grounds for a motion to quash the complaint or information
!1. That the facts charged do not constitute an offense; 2. That the court trying the case has no jurisdiction over the offense charged; 3. That the court has no jurisdiction over the person of the accused; 4. That the officer who filed the information had no authority to do so; 5. That the information does not conform substantially to the prescribed form;
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6. That more than one offense is charged except when a single punishment for various offense is prescribed by law;
7. That the criminal action or liability has been extinguished; 8. That it contains various averments which if true would constitute legal excuse
or justification; 9. That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without his express consent (double jeopardy) (Sec. 3, Rule 117). !
NOTE: The enumeration is exclusive.
GROUNDS FOR MOTION TO QUASH
1. The facts charged do not constitute an offense !It is fundamental that the complaint or information must state every fact necessary to make out an offense for the Constitution guarantees that in all criminal prosecutions the accused should be informed of the nature and cause of the accusation against him[Sec. 14 (2) Art. III, 1987 Constitution]. !It is required that the acts or omissions complained of as constituting the offense must be stated in ordinary and concise language so as to enable a person of common understanding to know what offense is intended to be charged, and to enable the court to pronounce judgment(Sec. 9, Rule 110).
2. Jurisdiction over the offense charged !If the trial court has no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel.
3. Jurisdiction over the territory !In criminal proceedings, no one should be held to answer for any crime committed by him except in the jurisdiction where it was committed.
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4. Jurisdiction over the person of the accused !Jurisdiction over the person is that acquired by the voluntary appearance of a party in court and his submission to its authority, or by the coercive power of legal process exerted over the person through an arrest. Unlike jurisdiction over the subject matter and territory, jurisdiction over the person of the accused may be waived, either expressly or by implication. !Test of the court’s jurisdiction !GR: What determines the jurisdiction of the court in criminal cases is the
extent of the penalty which the law imposes on the misdemeanor, crime or violation of law charged. !
XPN: 1. Jurisdiction of the Sandiganbayan which is not based on the penalty
provided by law, but on the salary grade of the public official. 2. Libel, which is within the exclusive jurisdiction of the RTC although the
imposable penalty does not exceed 6 years. 3. Those offenses cognizable by the family court where the determining factor
is the minority of any of the parties 4. The offense of slight physical injuries is cognizable by the Metropolitan,
Municipal or Municipal Circuit Trial Court, but where the victim is a minor, the case is to be filed in the RTC.
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5. Lack of authority of the officer to file information !Criminal prosecutions are brought by authority of the sovereign, and, therefore, only the officers possessed of legal power to do so must be allowed to file criminal information. !NOTE: The law invests the authority to file and prosecute criminal cases to the following: a. Provincial fiscals and their assistants (Sec. 1686, Revised Administrative Code) b. Chief State Prosecutor and his deputies c. Tanodbayan and his deputies in special cases (PD 1607) d. A lawyer appointed by the Secretary of Justice (Sec. 1686, Revised Administrative
Code) !Instances where there is an unauthorized filing of information 1. Officer filing is irregularly appointed. It does not necessarily invalidate the
information if such officer may be considered de facto; 2. Officer is disqualified from appointment to such position. The information is
invalid and the court does not acquire jurisdiction to try the accused thereon (Villa vs. Banez, G.R. No. L-4313, March 20, 1951);
3. Officer filed the information without the approval by the head / Chief prosecutor (Sec. 4, Rule 112);
4. Information is filed without the complaint in cases involving private crimes. !NOTE: An infirmity in the information caused by the lack of authority of the officer signing it cannot be cured by silence, acquiescence, or even by express consent. An invalid information is no information at all. No criminal proceeding may prosper therefrom, thus, it is subject to quashal (Romualdez vs. Sandiganbayan, G.R. Nos. 143618-41, July 30, 2002).
6. Complaint or information does not conform to the prescribed form !Lack of substantial compliance with the requirements for a good complaint or information required under Secs. 3 to 13, Rule 110 renders the accusatory pleading quashable. !NOTE: But mere defects in matters of form may be cured by amendment.
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7. Multiplicity of offenses charged !A complaint or information must charge but one offense, except only in those cases in which the existing laws prescribe a single punishment for various offenses [M. Pamaran, Revised Rules on Criminal Procedure Annotated, 424 (2010)].
!Q: The information filed against Abi charged more than one offense. She has not yet been arraigned. If you were the lawyer of Abi, would you file a motion to quash or a motion for bill of particulars? Explain. (1996 Bar Examination)
!A: I would file a motion to quash on the ground that more than one offense is charged. A motion for bill of particulars is not proper because there are no defects or details in the information that need clarification.
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8. Extinction of criminal action or liability !Grounds for extinction of criminal liability !Under Art. 89 of the RPC, it is provided that criminal liability is totally extinguished by: 1. The death of the convict, as to personal penalties; and as to pecuniary
penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment; !NOTE: The death of the offended party before final conviction will not abate prosecution where the offense charged is one against the State involving peace and order as well as in private crimes (People v. Misola, G.R. No. L-3606, December 29, 1950). !
2. Service of the sentence; 3. Amnesty, which completely extinguishes the penalty and all its effects; 4. Absolute pardon; 5. Prescription of the crime; 6. Prescription of the penalty; and 7. The marriage of the offended woman, as provided in Article 344 of the
Revised Penal Code. !Pardon v. Amnesty !Pardon Amnesty Granted by the Chief Executive. Proclaimed by the President, but it has to be with the concurrence of Congress. It is a private act which must be pleaded and proved by the person pardoned because the courts take no notice of it. It is a public act which the courts have to take judicial notice of. Granted to one after conviction. Granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. Relieves the offender from the consequences of the offense of which he is convicted. It only serves as a relief from the punishment but it does not restore the political rights of the person, unless it is expressly provided for in the pardon. Abolishes and puts into oblivion the offense itself. It is as though the offense was never committed. !Computation of prescriptive period of offenses !The period of prescription commences to run from the day on which the crime is discovered by the offended party, the authorities of their agents, and shall be interrupted by the filing of the complaint or information, and commences to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not !
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9. That it contains averments, which if true, would constitute a legal excuse or justification !Only exempting circumstances constitute a legal excuse or justification. Justifying circumstances such as self-defense must be proven.
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!DISTINGUISHED FROM DEMURRER TO EVIDENCE
10. Double Jeopardy !Elements of Double Jeopardy !It attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused. !Instances when double jeopardy will not attach !1. The dismissal of a case during preliminary investigation does not constitute
double jeopardy, preliminary investigation not being part of the trial (Flores v Montemayor, G.R. No. 170146, June 8, 2011).
2. When the Court finds that the “criminal trial was a sham” because the prosecution representing the sovereign people in the criminal case was denied due process (Galman v. Sandiganbayan, 144 SCRA 43).
3. A void judgment for having been issued without jurisdiction. No double jeopardy attaches because a void judgment is, in legal effect, no judgment at all. By it, no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone (People v. Court of Appeals, 101 SCRA 450).
4. Dismissal is with the express consent of the accused except on the following: a. The dismissal is based on insufficiency of evidence or b. The case is dismissed for violation of the accused’s right to speedy trial
(Benares v. Lim, G.R. No. 173421, December 14, 2006). !Effect of failure to move to quash or failure to allege a ground before he pleads to the complaint or information !GR: It shall be deemed a waiver of any objections. !XPNs: Grounds based on: 1. The facts charged do not constitute an offense; 2. The court trying the case has no jurisdiction over the offense charged; 3. Criminal liability has been extinguished; and 4. That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without his express consent (Sec. 9, Rule 117).
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!EFFECTS OF SUSTAINING THE MOTION TO QUASH
!Effects of granting a motion to quash !1. If the court sustains the motion, the accused remains in custody if, at the
time, he is under detention, unless he is admitted to bail. 2. If no order to that effect is made, or if so made, no information is filed
within the time specified in the order or within such further time allowed upon showing a good cause, the accused must be set free, unless he is also under custody by reason of some other charge.
3. If the motion to quash is sustained upon any of the following grounds, the court must state, in its order granting the motion, the release of the accused if he is in custody, or the cancellation of his bond if he is out on bail: a. That a criminal action or liability has been extinguished;
MOTION TO QUASH
DEMURRER TO EVIDENCE
Fi led before the defendant enters his plea.
Filed after the prosecution has rested its case.
Does not go into the merits of the case but is anchored on mat te r s no t d i r e c t l y related to the q u e s t i o n o f g u i l t o r innocence of the accused.
Based upon the inadequacy of the evidence adduced by the prosecution in support of the accusation.
Governed by Rule 117 of the Rules of Court.
Governed by Rule 119 of the Rules of Court.
D o e s n o t require a prior leave of court.
May be filed by t h e a c c u s e d e i t h e r w i t h l e a v e o r without leave of court.
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b. That it contains averments which, if true, would constitute a legal excuse or justification; or
c. That the accused has been previously convicted or acquitted of the offense charged.
4. If the ground upon which the motion to quash was sustained is that the court has no jurisdiction over the offense, the better practice is for the court to remand or forward the case to the proper court, not to quash the complaint or information.
5. If the ground of the motion is either: a. That the facts charged do not constitute an offense; b. That the officer who filed the information had no authority to do so; or; c. That it does not conform substantially to the prescribed form; or d. That more than one offense is chargedthen the court should order the
prosecution to file another information or an amendment thereof, as the case may be, with a definite period, the order further stating that in case of failure to comply therewith, the accused if he is in custody shall be discharged, or his bond cancelled if he is bonded [M. Paramaran, Revised Rule on Criminal Procedures Annotated, 447-448 (2010)]. !
Q: Is the order denying the motion to quash appealable? !A: GR:No. It is interlocutory and not appealable. Certiorari and prohibition are not the correct remedies against an order denying a motion to quash. The defendant should instead go to trial and raise the special defense he had invoked in his motion. And if after trial on the merits, an adverse decision is rendered, remedy is to appeal in the manner authorized by law (Bulaong v. CA, G.R. No. 78555, January 30, 1990). !XPNs: 1. The act has ceased to be an offense; 2. When intervention by higher court is required for the orderly administration
of justice or in the interest of both the accused and the public; 3. It is unfair and unjust to make the accused go to trial; 4. When the circumstances warrant that technicalities of procedure should be
set aside; 5. If the court denying the motion to quash acted without or in excess of
jurisdiction or with grave abuse of discretion. !Procedure when the motion to quash is denied !1. The accused should plead; 2. Accused should go to trial without prejudice to the special defenses he
invoked in the motion; 3. Appeal from the judgment of conviction, if any, and interpose the denial of
the motion as an error. !!
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Q: After the requisite proceedings, the Provincial Prosecutor filed and Information for homicide against Peter. The latter however, timely filed a Petition for Review of the Resolution of the Provincial Prosecutor with the Secretary of Justice who, in due time, issued a Resolution reversing the resolution of the Provincial Prosecutor and directing him to withdraw the Information. Before the Provincial Prosecutor could comply with the directive of the Secretary of Justice, the court issued a warrant of arrest against Peter. The Public Prosecutor filed a Motion to Quash the Warrant of Arrest and to withdraw the Information, attaching to it the Resolution of the Secretary of Justice. The court denied the motion. Was there a legal basis for the court to deny the motion?(2002 Bar Question) !A: Yes. There is a legal basis for the court to deny the motion to quash the warrant of arrest and to withdraw the information. The court is not bound by the Resolution of the Secretary of Justice. This is because once an information is filed in court, any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the court(Crespo v. Mogul, 151 SCRA 462). !Q: Bimby is charged with illegal possession of firearms under an Information signed by the Provincial Prosecutor. After arraignment but before pre-trial, he found out that the Provincial Prosecutor had no authority to sign and file the Information as it was the City Prosecutor who has such authority. During the pre-trial, Bimby moves that the case against him be dismissed on the ground that the information is defective because the officer signing it lacked the authority to do so.The Provincial Prosecutor opposes the motion on the ground of estoppel as Bimby did not move to quash the Information before arraignment. If you are the counsel for Bimby, what is your argument to refute the opposition of the Provincial Prosecutor? (2000 Bar Question) !A: I would argue that since the Provincial Prosecutor had no authority to file the information, the court did not acquire jurisdiction over the person of the accused and over the subject matter of the offense charged. Hence, this ground is not waived if not raised in a motion to quash and could be raised at the pre-trial (People v. Hon. Zeida Aurora Garfin, G.R. No. 153176, March 29, 2004). !Q: Chato is charged with the murder of Velay. Before arraignment, you, as counsel de officio of Chato, discovered that the information failed to allege any qualifying circumstances.
1. How may you properly object the insufficiency of the information, and on what ground?
2. May you still avail of that remedy after Chato has entered her plea? 3. What course or courses of action may the court take if it sustains the
remedy you seek? (1994 Bar Question) !A:
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1. As counsel de officio for the accused, I can file a motion to quash based on the ground that the facts charged do not constitute the crime of murder there being no qualifying circumstances alleged [Sec. 3 (a) Rule 117].
2. After Chato has entered her plea, she may still move to quash because she is not deemed to have waived such objection (Sec. 9, Rule 117).
3. If the court sustains the motion to quash, the court may order that another information be filed. If the accused is in custody, he shall remain so unless he shall be admitted to bail. If the information is not filed within the time specified, or within the time specified in the order, or within such further time as the court may allow for good cause shown, the accused, if in custody, shall be discharged therefrom unless he is also in custody on some other charge (Sec. 5, Rule 117). !
EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION TO QUASH IS NOT A BAR TO ANOTHER PROSECUTION
!GR: An order sustaining the motion to quash is not a bar to another prosecution
for the same offense. !XPNs: 1. Double jeopardy; or 2. Criminal liability is extinguished (Sec. 6, Rule 117). !
DOUBLE JEOPARDY (RES JUDICATA IN PRISON GREY)
!Double Jeopardy !It means that 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 consent of the accused, the latter cannot again be charged with the same or identical offense. !Likewise, if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Purpose of the right against double jeopardy !The purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the danger and anxiety of a second charge against him for the same offense (Caes v. Intermediate Appellate Court, 179 SCRA 54). It protects the accused not against the peril of second punishment but against being tried again. !Kinds of double jeopardy !1. No person shall be put twice in jeopardy for the same offense.
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2. When the act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution for the same act (Sec. 21, Art. III. 1987 Constitution). !
Requirements for the attachment of the first jeopardy !1. Competent Court 2. Valid jurisdiction 3. Accused was arraigned 4. Accused pleaded !Attachment of the second jeopardy
!1. When the accused was acquitted; 2. When there is final conviction; 3. Dismissal on the merits 4. Dismissal without express consent !NOTE: The prohibition against double jeopardy refers to the same offense and not to the same act. The offense charged in the two prosecutions must be the same in law and in fact, because the same acts may be violative of two or more provisions of the criminal law. !Q: Can a person convicted by a court-martial be prosecuted again in the civil court? !A: No. A person convicted by a court-martial cannot, for the same offense, be prosecuted again in the civil court. A court martial is a court, and the prosecution of an accused before it is criminal, not administrative; thus it would be, under certain conditions, a bar to another prosecution of the defendant for the same offense, because the latter would place the accused in double jeopardy (Marcos vs. Chief of Staff, 89 Phil. 477). !Q: Is there double jeopardy when the complaint or information was dismissed before the defendant has been arraigned and had pleaded thereto? !A: No. The requirement that the accused must have been arraigned and pleaded to the charge rests upon the idea that it is only from that moment that the issues for trial are deemed joined. Before that, the accused is not in danger of being validly convicted (People vs. Apostol, 64 Phil. 676). !Q: Dora and Egor were charged with homicide in one information. Before they could be arraigned, the prosecution moved to withdraw the information
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altogether and its motion was granted. Can the prosecution re-file the information although this time for murder? (2002 Bar Question) !A: Yes. The prosecution can re-file the information for murder in substitution of the information for homicide because no double jeopardy has as yet attached (Galvez v. Court of Appeals, 237 SCRA 685). !Q: Dondon was charged with slight physical injuries in the MTC. He pleaded not guilty and went to trial. After the prosecution has presented its evidence, the trial court set the continuation of the hearing on another date. On the date scheduled for hearing, the prosecutor failed to appear, whereupon the court, on motion of Dondon, dismissed the case. A few minutes later, the prosecutor arrived and opposed the dismissal of the case. The court reconsidered its order and directed Dondon to present his evidence. Before the next date of trial came, however, he moved that the last order be set aside on the ground that the reinstatement of the case had placed him twice in jeopardy. Acceding to this motion, the court again dismissed the case. The prosecutor then filed an information in the RTC, charging Dondon with direct assault based on the same facts alleged in the information for slight physical injuries but with the added allegation that he inflicted the injuries out of resentment for what the complainant had done in the performance of his duties as chairman of the board of election inspectors. He moved to quash the second information on the ground that its filing had placed him in double jeopardy. How should Dondon’s motion to quash be resolved? (2002 Bar Question)
!A: Dondon’s motion to quash should be granted on the ground of double jeopardy because the first offense charged is necessarily included in the second offense charged. Although the dismissal of the first case was upon motion of the accused, double jeopardy attached since the dismissal was due to failure to prosecute which amounts to an acquittal (People v. Clobel, 11 SCRA 805; Esmene v. Pogoy, 102 SCRA 851).
!Tests in determining the identity of the offenses for the purpose of applying the rule on double jeopardy !Same offense test – Whether the offense charged in the first information is the same offense in the second charge, or whether the second offense necessarily includes or is necessarily included in the first offense charged in the former complaint or information. !Same-evidence test- Whether the facts alleged in the second information, if proved, would have been sufficient to sustain the former information, or from which the accused may have been acquitted or convicted.
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!Identity Rule !There is identity between two offenses not only when the second offense is exactly the same as the first, but also when the second offense includes or is necessarily included in the first offense or an attempt or frustration thereof, or when it necessarily includes or is necessarily included in the offense charged in the first information. !XPNs to the Identity Rule 1. The graver offense developed due to supervening facts arising out of the
same act or omission constituting the former charge [Sec. 7(a), Rule 117]. 2. The facts constituting the graver offense became known or were discovered
only after a plea was entered in the former complaint or information [Sec. 7(b), Rule 117].
3. The plea of guilty to a lesser offense was made without the consent of the prosecutor and the offended party [Sec. 7 (c), Rule 117].
4. The second offense was not in existence at the time of the first prosecution for the simple reason that in such case, there is no possibility for the accused, during the first prosecution, to be convicted for an offense that was then inexistent (Melo v. People, 85 Phil 766). !
NOTE: In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense. !Variance doctrine
!An offense charged necessarily includes the offense proved when some of the essential ingredients or ingredients of the former as alleged in the complaint or 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.
!Doctrine of Supervening Fact !If, after the first prosecution, a new fact supervenes on which the defendant may be held liable, altering the character of the crime and giving rise to a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the new offense.
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Q: Melo was charged with frustrated homicide, for having allegedly inflicted upon Obillo several serious wounds which required medical attendance. Obillo died from his wounds hours after the accused pleaded guilty of the offense charged. An amended information was then filed charging the accused with consummated homicide. The accused filed a motion to quash the amended information alleging double jeopardy. Is the accused correct? !A: No, for the simple reason that in such case there is no possibility for the accused, during the first prosecution, to be convicted for an offense that was then inexistent. Thus, where the accused was charged with physical injuries and after conviction the injured person dies, the charge for homicide against the same accused does not put him twice in jeopardy. !Stating it in another form, the rule is that "where after the first prosecution a new fact supervenes for which the defendant is responsible, which changes the character of the offense and, together with the fact existing at the time, constitutes a new and distinct offense,” the accused cannot be said to be in second jeopardy if indicated for the new offense (Melo v. People, G.R. No. L – 3580, March 22, 1950). !NOTE: Accordingly, an offense may be said to necessarily include or to be necessarily included in another offense, for the purpose of determining the existence of double jeopardy, when both offenses were in existence during the pendency of the first prosecution, for otherwise, if the second offense was then inexistence, no jeopardy could attach therefor during the first prosecution, and consequently a subsequent charge for the same cannot constitute second jeopardy. By the very nature of things there can be no double jeopardy under such circumstance (Ibid.). !Q: Accused was charged with and convicted of less serious physical injuries. The accused had already begun serving his sentence when it was found out that the complainant’s injuries did not heal within the period formerly estimated, and so the provincial fiscal filed another information for serious physical injuries. The accused moved to quash this second information on the ground of double jeopardy. Is the accused correct? !A: No. Reversing the trial court’s order granting his motion, the SC reiterated the Melo ruling and then added: “That rule applies to the present case where, after the prosecution for a lesser crime, new facts have supervened which, together with those already in existence at the time of the first prosecution, have made the offense graver and the penalty first imposed legally inadequate” [Double Jeopardy: The Supervening Event Doctrine, 76 SCRA 469 (1977)]. !NOTE: “It is indispensable that a new fact for which the defendant is responsible had supervened and this new fact changes the character of the crime first imputed to him so that, together with the facts previously existing, it constitutes a new and distinct
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offense (People v. Yorac )” [Double Jeopardy: The Supervening Event Doctrine, 76 SCRA 469(1977)]. !Effect of double jeopardy on the civil aspect of the case !The offended party and the accused may appeal the civil aspect of the case because the concept of double jeopardy evidently has reference only to the criminal case and has no effect on the civil liability of the accused (Riano, 2011) !Non-applicability of double jeopardy to administrative cases !The rule on double jeopardy does not apply to a controversy where one is an administrative case and the other is criminal in nature (Riano, 2011, citing Icasiano v. Sandiganbayan, 209 SCRA 377). !Q: As a result of vehicular mishap, petitioner was charged before the MTC of two separate offenses in two informations: a. Reckless imprudence resulting in slight physical injuries; and b. Reckless imprudence resulting in homicide and damage to property for the
death of the husband of the respondent and damage to the vehicle. !Petitioner pleaded guilty to the first information and was punished only by public censure. Invoking such conviction, petitioner now moves for the quashal of the other information on the ground of double jeopardy. Does double jeopardy apply to quasi offenses? !A: Yes. The two charges arose from the same facts and were prosecuted under the same provision of the RPC, namely Art. 365. The doctrine is that reckless imprudence under Art. 365 is a single quasi- offense by itself and not merely a means to commit other crimes. Hence, conviction or acquittal of such quasi offense bars subsequent prosecution for the same quasi offense, regardless of its various resulting acts (Ivler v. Modesto- San Pedro, GR No. 172716, November 17, 2010). !Q: For firing a machine gun which caused panic among the people present and physical injuries to one, two separate informations (one for serious public disturbance and the other for reckless imprudence resulting in physical injuries) were filed against the accused. As he pleaded guilty to the charge of reckless imprudence resulting in physical injuries, the accused was convicted and sentenced accordingly. Later, the accused sought to dismiss the charge of serious public disturbance on the ground of double jeopardy. Is there double jeopardy? Why? (1993 Bar Question) !A: No. The protection against double jeopardy is only for the same offense. A single act may be an offense against two different provisions of law and if one provision requires proof of an additional fact which the other does not, an
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acquittal or conviction under one does not bar prosecution under the other. In this case, the act of firing a machine gun violated two articles of the RPC. Consequently, conviction for one does not bar prosecution for the other. !Dismissal v. Acquittal
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!Instances wherein dismissal of the case is tantamount to an acquittal
!1. Insufficiency of evidence of the prosecution (Demurrer to evidence) 2. Dismissal due to violation of right to speedy trial (even if dismissal was upon
motion of the accused or with his express consent) !Rules on the application of double jeopardy on State witnesses
!An order discharging an accused as a State witness amounts to an acquittal, hence double jeopardy will apply. However, if he fails or refuses to testify against his co-accused in accordance with his sworn statement, he may be prosecuted again.
!PROVISIONAL DISMISSAL
!Requisites of provisional dismissal !
Dismissal Acquittal
D o e s n o t decide on the merits, does not determine t h e d e f e n d a n t ’s g u i l t o r innocence.
Always based on the merits. Defendant is a c q u i t t e d because guilt was not proven b e y o n d r e a s o n a b l e doubt.
D o u b l e jeopardy will n o t a l w a y s attach.
D o u b l e j e o p a r d y a l w a y s attaches.
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1. There must be a motion by the prosecution with the express conformity of the accused, or by the accused himself, or by both the prosecution and the accused for a provisional dismissal of the case;
2. The offended party is notified of the motion for a provisional dismissal of the case;
3. The court issues an order granting the motion and dismissing the case provisionally;
4. The public prosecutor is served with a copy of the order of provisional dismissal of the case (People v. Panfilo Lacson, et. al., G.R. No. 149453, April 1, 2003). !
NOTE: The concept of provisional dismissal contemplates that the dismissal of the criminal action is not permanent and can be revived within the period set by the Rules of Court. !Rule on provisional dismissal of a case
!GR: Where the case was dismissed provisionally with the consent of the accused, he cannot invoke double jeopardy in another prosecution therefore or where the case was reinstated on a motion for reconsideration by the prosecution. !XPNs: The dismissal amounts to an acquittal even if the dismissal was ordered at
the instance of the defendant if it is based on:
1. Lack or insufficiency of evidence
2. If the same was predicated upon the right of the accused to a speedy trial, hence, even if the accused gave his express consent to such dismissal or moved for dismissal, such consent would be immaterial as such dismissal is actually an acquittal
3. There is variance between the proof and the allegations in the complaint or information
!Period when provisional dismissal becomes permanent !The dismissal shall become permanent if: 1. The case is not revived within 1 year after the issuance of the order of
provisional dismissal with respect to offenses punishable by imprisonment not exceeding 6 years or a fine of any amount or both; or
2. The case is not revived within 2 years after the issuance of the order of provisional dismissal with respect to offenses punishable by imprisonment of more than 6 years (Sec. 8, Rule 117). !
Thus, within the periods stated, the prosecution has to revive the case if it desires to prevent the provisional dismissal becoming permanent and the revival
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of the case being time-barred. This is known as the TIME BAR RULE. If no revival of the case is made within the prescribed period, the dismissal shall be removed from being provisional and becomes permanent. !NOTE: The State may revive a criminal case beyond the one-year or two-year periods, provided there is justifiable necessity for the delay, and subject to the right of the accused to oppose the same on the ground of double jeopardy, or that such revival or refiling is barred by the statute of limitations (People v. Lacson, G.R. No. 149453, Oct. 7, 2003).
!Express consent !It must be a positive, direct, unequivocal consent requiring no inference or implication to supplying its meaning. The mere inaction or silence of the accused or his failure to object to a provisional dismissal of the case does not amount to express consent. !Q: In a prosecution for robbery against Adrian, the prosecutor moved for the postponement of the first scheduled hearing on the ground that he had lost his records of the case. The court granted this motion but, when the new date of trial arrived, the prosecutor alleging that he could not locate his witnesses, moved for the provisional dismissal of the case. If Adrian’s counsel does not object, may the court grant the motion of the prosecutor? Why? (2002 Bar Question)
!A: No. A case cannot be provisionally dismissed except upon the express consent of the accused and with notice to the offended party.
!Q: Before the arraignment for the crime of murder, the private complainant executed an Affidavit of Desistance stating the she was not sure if the accused was the man who killed her husband. The public prosecutor filed a Motion to Quash the Information on the ground that with private complainant’s desistance, he did not have evidence sufficient to convict the accused. On January 2, 2001, the court without further proceedings granted the motion and provisionally dismissed the case. The accused gave his express consent to the provisional dismissal of the case. The offended party was notified of the dismissal but she refused to give her consent.
!Subsequently, the private complainant urged the public prosecutor to refile the murder charge because the accused failed to pay the consideration which he had promised for the execution of the Affidavit of Desistance. The public
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prosecutor obliged and refiled the murder charge against the accused on February 1 2003. The accused filed a Motion to Quash the Information on the ground that the provisional dismissal of the case had already become permanent. Was the provisional dismissal of the case proper? (2003 Bar Question).
!A: Yes. The provisional dismissal of the case was proper because the accused gave his express consent thereto and the offended party was notified. It was not necessary for the offended party to give her consent thereto (Sec. 8, Rule 117).
!Provisional dismissal under A.M. No. 12-11-2-SC (Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and to Speedy Trial) !1. When the delays are due to the absence of an essential witness whose
whereabouts are unknown or cannot be determined and, therefore, are subject to exclusion in determining if, with the prescribed time limits which caused the trial to exceed 180 days, the court shall provisionally dismiss the action with the express consent of the detained accused.
2. When the delays are due to the absence of an essential witness whose presence cannot be obtained by due diligence though his whereabouts are known, the court shall provisionally dismiss the action with the express consent of the detained accused provided: a.The hearing in the case has been previously twice postponed due to the
non-appearance of the essential witness and both the witness and the offended party, if they are two different persons, have been given notice of the setting of the case for third hearing, which notice contains a warning that the case would be dismissed if the essential witness continues to be absent; and
b.There is proof of service of the pertinent notices of hearings or subpoenas upon the essential witness and the offended party at their last known postal or e-mail addresses or mobile phone numbers.
3. For the above purpose, the public or private prosecutor shall first present during the trial the essential witness or witnesses to the case before anyone else. An essential witness is one whose testimony dwells on the presence of some or all of the elements of the crime and whose testimony is indispensable to the conviction of the accused (Sec. 10, A.M. No. 12-11-2-SC). !
Reckoning period of one or two year period for revival of criminal case !The one or two year period allowed for reviving a criminal case that has been provisionally dismissed shall be reckoned from the issuance of the order of
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dismissal. The dismissal shall become automatically permanent if the case is not revived within the required period. Such permanent dismissal shall amount to an adjudication of the case on the merits (Sec. 14, A.M. No. 12-11-2-SC). !
PRE-TRIAL RULE 118 !
Importance of pre-trial !It is the purpose of the Pretrial Conference to simplify the issues, shape up the testimonial and documentary evidence and generally clear the decks for the trial (Irving Trust Company v. US 221 F.2D 303, April 5, 1955). !Pre-trial is mandatory in all criminal cases cognizable by the !1. Sandiganbayan; 2. RTC; 3. Metropolitan Trial Court; 4. Municipal Trial Court in Cities; 5. Municipal Trial Court and Municipal Circuit Trial Court (Sec. 1 Rule 118). !
MATTERS TO BE CONSIDERED DURING PRE-TRIAL !Period of pre-trial !After arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused unless a shorter period is provided by special laws or circulars of the Supreme Court (Sec. 1, Rule 118). !
Pre-trial in a Civil case v. Pre-trial in a Criminal case (1997 Bar Question)
!Pre-trial in Civil Cases Pre-trial in Criminal Cases
Is set when the plaintiff moves ex parte.
Pre-trial is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense (Sec. 1, Rule 118).
The motion to set the case for pre-trial is made after the last pleading has been served and filed (Sec. 1, Rule 18).
The pre-trial is ordered by the court after arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused (Sec. 1 Rule 118).
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(Riano, 2009) !Content of the order for pre-trial conference !It must contain orders: 1. Requiring the private offended party to appear thereat for purposes of plea-
bargaining and for other matters requiring his presence; 2. Referring the case to the branch clerk of court, if warranted, for a
preliminary conference to be set at least 3 days prior to the pre-trial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition; and
3. Informing the parties that no evidence shall be allowed to be presented and offered during the trial other than those identified and marked during the pre-trial except when allowed by the court for good cause shown. In mediatable cases, the judge shall refer the parties and their counsel to the Philippine Mediation Centv er unit for purposes of mediation if available (A.M. No. 03-1-09-SC). !
Form of a valid pre-trial agreement
!The pre-trial agreement must be in writing and signed by both the accused and his counsel. If the required form is not observed, the pre-trial agreement cannot be used against the accused (Sec. 2, Rule 118).
!NOTE: The agreements covering the matters in the pre-trial conference shall be approved by the court.
Considers the possibility of an amicable settlement or compromise.
Does not include the considering of the possibility of amicable settlement of a criminal liability as one of its purpose (Sec. 1, Rule 118).
The agreements and admissions may be contained in the record of pre-trial and pre-trial order. The “Minutes of Preliminary Conference, may be signed by either the party or his counsel.
All agreements or admissions made or e n t e r e d d u r i n g t h e p r e - t r i a l conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused.
A pre-trial brief is required to be submitted (Sec. 6, Rule 18).
A pre-trial brief is not specifically required.
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!Matters considered during pre-trial
!1. Plea bargaining; 2. Stipulation of facts; 3. Marking for identification of evidence of parties; 4. Waiver of objections to admissibility of evidence; 5. Modification of the order of the trial if one of the accused admits the charge
but interposes a lawful defense (reverse trial); and 6. Such other matters as will promote a fair and expeditious trial of the civil and
criminal aspects of the case (Sec. 1). !NOTE: During the preliminary conference, the branch clerk of court shall assist the parties in reaching a settlement of the civil aspect of the case, mark the documents to be presented as exhibits and copies thereof attached to the records after comparison, ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of documents marked as exhibits and consider such other matters as may aid in the prompt disposition of the case. The proceedings during the preliminary conference shall be recorded in the minutes of preliminary conference to be signed by both parties and counsel. !The minutes of preliminary conference and the exhibits shall be attached by the branch clerk of court to the case record before the pre-trial (A.M. No. 03-1-09-SC).If the accused has pleaded not guilty to the crime charged, he may state whether he interposes a negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of the accused beyond reasonable doubt, while an affirmative defense may modify the order of trial and require the accused to prove such defense by clear and convincing evidence (Sec. 3, Speedy Trial Act). !Plea Bargaining
!The process whereby the accused, the offended party and the prosecution work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi- count indictment in return for a lighter sentence than that for the graver charge.
!Instance when plea bargaining not applicable
!In violations of the Dangerous Drugs Act regardless of the imposable penalty (Sec. 23, RA 9165).
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!Action of the court when plea bargaining fails
!The court shall: 1. Adopt the minutes of preliminary conference as part of the pre-trial
proceedings, confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents and list object and testimonial evidence;
2. Scrutinize every allegation of the information and the statements in the affidavits and other documents which form part of the record of the preliminary investigation and other documents identified and marked as exhibits in determining further admissions of facts, documents and in particular as to the following: a. The identity of the accused; b. Court’s territorial jurisdiction relative to the offense/s charged; c. Qualification of expert witness; d. Amount of damages; e. Genuineness and due execution of documents; f. The cause of death or injury, in proper cases; g. Adoption of any evidence presented during the preliminary investigation; h. Disclosure of defenses of alibi, insanity, self-defense, exercise of public
authority and justifying or exempting circumstances; and i. Such other matters that would limit the facts in issue.
3. Define factual and legal issues; 4. Ask parties to agree on the specific trial dates and adhere to the flow chart
determined by the court which shall contain the time frames for the different stages of the proceeding up to promulgation of decision and use the time frame for each stage in setting the trial dates;
5. Require the parties to submit to the Branch COC the names, addresses and contact numbers of witnesses that need to be summoned by subpoena; and
6. Consider modification of order of trial if the accused admits the charge but interposes a lawful defense (A.M. No. 03-1-09-SC). !
WHAT THE COURT SHOULD DO WHEN PROSECUTION AND OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED !
Effect when the prosecution and the offended party agree to the plea offered by the accused
!The court shall: 1. Issue an order which contains the plea bargaining arrived at; 2. Proceed to receive evidence on the civil aspect of the case; and 3. Render and promulgate judgment of conviction, including the civil liability or
damages duly established by the evidence (A.M. No. 03-1-09-SC). !
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!PRE-TRIAL AGREEMENT
!Pre- trial agreement
!All agreements or admissions made or entered into during the pre- trial conference shall be reduced to writing and signed by the accused and counsel, otherwise the same shall not be used as evidence against the accused.
!Requisites before a pre-trial agreement may be used as evidence !1. They are reduced to writing; 2. The pre-trial agreement is signed by the accused AND his counsel !The agreements in relation to matters referred to in Sec. 2, i.e, Plea bargaining, Stipulation of Facts, Marking for Identification of evidence of parties, Waiver of objections to admissibility of evidence, and Other matters as will promote a fair and expeditious trial are subject to the approval of the court. Provided, that the agreement on the plea of the accused to a lesser offense may only be revised, modified, or annulled by the court when the same is contrary to law, public morals, or public policy (Sec. 3 Speedy Trial Act of 1998). !NOTE: The requirement of Sec. 2 is intended to safeguard the right of the accused against improvident or unauthorized agreements or admissions which his counsel may have entered into, or which any person may have ascribe to the accused without his knowledge, as he may have waived his presence at the pre-trial conference (People vs. Uy, G.R. No. 128046. March 7, 2000). !
NON-APPEARANCE DURING PRE-TRIAL !Effect of non-appearance of counsel for the accused or the prosecutor during the pre-trial without valid justification !Where counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties. The court may impose proper sanctions or penalties in the form of reprimand, fines or imprisonment if he does not offer an acceptable excuse for his lack of cooperation (Sec. 3, Rule 118; Sec. 5, Speedy Trial Act).
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Rationale of the exclusion of the accused in the mandatory appearance during pre-trial
!The principal reason why the accused is not included in the mandatory appearance is the fear that to include him is to violate his constitutional right to remain silent (Sec. 12, par. 1, Article III, 1987 Constitution).
!NOTE: Unless otherwise required by the court, personal appearance of the accused at the conference is not indispensable. This is aside from the consideration that the accused may waive his presence at all stages of the criminal action, except at the arraignment, promulgation of judgment or when required to appear for identification (Regalado, 2008).
! PRE-TRIAL ORDER
!Pre-trial order
!It is an order issued by the court reciting the actions taken, the facts stipulated and the evidence marked during the pre-trial conference (Sec. 4).
!Purpose and effect of the pre-trial order
!Such order shall bind the parties, limit the trial to those matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice (Sec 4 Rule 118; Sec 5, Speedy Trial Act of 1998).
!NOTE: To prevent manifest injustice, however, the pre-trial order may be modified by the court, upon its own initiative or at the instance of any party. !Period for the trial judge to issue a pre-trial order and its contents
!It must be issued within 10 days after the termination of the pre-trial. It shall set forth the following:
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1. Actions taken during the pre-trial conference; 2. Facts stipulated; admissions made; 3. Evidence marked; and 4. Number of witnesses to be presented and the schedule of trial (Sec. 4, Rule
118).
REFERRAL FOR SOME CASES FOR COURT ANNEXED MEDIATION AND JUDICIAL DISPUTE RESOLUTION
(A.M. No, 11-1-6-SC-PHILJA)
!Purpose of Court Annexed Mediation (CAM) and Judicial Dispute Resolution (JDR)
!The diversion of pending court cases both to CAM and to JDR is plainly intended to put an end to pending litigation through a compromise agreement of the parties and thereby help solve the ever-pressing problem of court docket congestion. It is also intended to empower the parties to resolve their own disputes and give practical effect to the State Policy expressly stated in the ADR Act of 2004 (RA 9285), to wit: !“to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangement to resolve disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and de-clog court dockets.”
!Role of the judge in mediation !The pre-trial judge will rule on the compromise agreement reached through mediation. If court-annexed mediation fails, the pre-trial judge takes on the role of conciliator, neutral evaluator and mediator. !The judge will sit down with counsel and their parties to hear a summary of the case and will attempt to conciliate the differences between the parties. As a neutral evaluator, the judge will be free to express his views on the chances of each party in the case. At this point, if the parties agree to reconsider and undergo mediation, the judge will facilitate the settlement as a mediator. If the parties still refuse mediation, however, the judge will then issue an order referring the case to another judge. The order will specify that both CAM and JDR have failed.
Three stages of diversion of cases to CAM and JDR
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!1. The first stage is the CAM where the judge refers the parties to the Philippine
Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators.
2. Upon failing to secure a settlement of the dispute during the first stage, a second attempt is made at the JDR stage. There, the JDR judge sequentially becomes a mediator conciliator-early neutral evaluator in a continuing effort to secure a settlement. Still failing that second attempt, the mediator-judge must turn over the case to another judge (a new one by raffle or nearest/pair judge) who will try the unsettled case. The trial judge shall continue with the pre-trial proper and, thereafter, proceed to try and decide the case.
3. The third stage is during the appeal where covered cases are referred to the PMC-Appeals Court Mediation (ACM) unit for mediation. !
Cases covered by CAM and JDR !The following cases shall be (1) referred to CAM and (2) be the subject of JDR proceedings: 1. All civil cases and the civil liability of criminal cases covered by the Rule on
Summary Procedure, including the civil liability for violation of BP 22, except those which by law may not be compromised;
2. Special proceedings for the settlement of estates; 3. All civil and criminal cases filed with a certificate to file action issued by the
Punong Barangay or the Pangkat ngTagapagkasundo under the Revised Katarungang Pambarangay Law;
4. The civil aspect of Quasi-Offenses under Title 14 of the RPC; 5. The civil aspect of less grave felonies punishable by correctional penalties
not exceeding 6 years imprisonment where the offended party is a private person;
6. The civil aspect of estafa, theft and libel; 7. All civil cases and probate proceedings, testate and intestate, brought on
appeal from the exclusive and original jurisdiction granted to the first level courts under Sec. 33, par. (1) of the Judiciary Reorganization Act of 1980;
8. All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Sec. 33, par. (2) of the Judiciary Reorganization Act of 1980;
9. All civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Sec. 33, par.(3) of the Judiciary Reorganization Act of 1980; and
10.All habeas corpus cases decided by the first level courts in the absence of the RTC judge that are brought up on appeal from the special jurisdiction granted to the first level courts under Sec. 35 of the Judiciary Reorganization Act of 1980. !
CAM v. Court Referred Mediation (CRM) !
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!Cases which CANNOT be referred to CAM and JDR
!1. Civil cases which by law cannot be compromised (Art. 2035, NCC); 2. Other criminal cases not covered under paragraphs 3 to 6 above; 3. Habeas Corpus petitions; 4. All cases under RA 9262 (Violence against Women and Children); and 5. Cases with pending application for Restraining Orders/Preliminary Injunctions.
However, in cases covered under 1, 4 and 5 where the parties inform the court that they have agreed to undergo mediation on some aspects thereof, e.g., custody of minor children, separation of property, or support pendent lite, the court shall refer them to mediation. !
Appellate Court Mediation (ACM) !It is a mediation program in the CA, corollary to CAM in the lower courts. It provides a conciliatory approach in conflict resolution. Through ACM, the CA promotes a paradigm shift in resolving disputes from a right-based (judicial) to an interest-based (mediation) process. !Persons qualified to serve as mediator in appellate court mediation !Only an Appellate Mediator who is trained and accredited by the Philippine Judicial Academy (PHILJA) can mediate in the CA. As a basic qualification, he/she must be a retired justice, judge, senior member of the Bar, or senior law professor, who possesses creative problem-solving skills and has strong interest in mediation.
CAM CRM
Any mediation p r o c e s s c o n d u c t e d u n d e r t h e auspices of the court that has a c q u i r e d jurisdiction of the dispute.
A med i a t i on ordered by a cour t t o be conducted in a c c o r d a n c e w i t h t h e agreement of t h e p a r t i e s when an action is prematurely commenced in v i o l a t i o n o f s u c h agreement
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!!Discuss the CAM process !!
" !!!JDR process. !
I. Selection of Cases
Division Clerk of court identifies the pend ing cases to be approved by the (ponente) Justice in charge, for decision.
Petitioner or appellant specifies that the case is qualified formediation.
If the case is eligible for mediation, the ponente refers the case to PMC-CA
Ponente issues a resolution directing the parties to appear at the PMC-CA without counsel to consider the possibi l i ty of mediation.
The resolution also suspends the running of the period to file the appellee’s brief.
III. Agreement to mediate
Upon agreement of the parties to mediate, the PMC-CA requires the parties to execute an Agreement to Mediate
Parties choose a mediator and the date and time of the init ial mediation conference
IV. Mediation Proceedings
M e d i a t o r c o m p l e t e s t h e proceedings within 30 days from date of initial conference, with extendible period of 30 days if there is a justifiable ground.
Individual litigants are required to attend mediation conferences in person; corporate parties must be represented by a corporate officer duly authorized by Board resolution.
If the parties agree to a full or partial compromise, the mediator drafts written terms with the concurrence of the parties / counsel.
Parties/counsel and mediator sign the compromise agreement which is transmitted to the Court.
Court approves the c o m p r o m i s e a g r e e m e n t a n d makes an immediate entry of judgment.
In case of full settlement, the parties agree to withdraw the appeal and enter into a mutual sa t i s fac t ion o f c la ims and counterclaims. Upon receipt, the Court renders an order of dismissal.
If the parties fail to reach a settlement, the mediator returns the case to the Division of origin. He then makes a confidential report to the PMC-CA on the reasons for the failure.
II. Resolution to appear at the PMC-CA
V. Disposition of Cases
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! !!
ACM: Appeal to CA
Decision
Refer the case to another
judge for trial
FailsReaches a settlement
JDR Pre-trial judge as mediatorPre-trial judge will rule
on the compromise agreement
Complainant presents his
case
Dismiss the case
Complainant
Settlement cannot be reachedCompromise agreementFailure to appear
Trial
CAM
Mediatable
Filing of Case
Failure to mediateReaches a compromise agreement
Lupon Tagapamayapa
Non-mediatable
Defendant
Judgment based on
compromise
Decision
Decision
Reaches a settlement
Decision
Fails
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CAM v. JDR v. ACM
CAM JDR ACM
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A c a s e eligible for mediation at a First Level Court o r R T C during the p r e - t r i a l s t a g e i s referred by t h e p r e s i d i n g j u d g e t o t h e Phi l ippine Mediat ion Center Unit f o r mediation. Mediat ion i s successful i f t h e p a r t i e s enter into a Compromise Agreement, a n d t h e j u d g e renders a d e c i s i o n b a s e d o n t h i s agreement. If it fails or the parties re fuse to u n d e r g o mediation, t h e c a s e goes back to court for trial.
T h e mediation process is also in the l o w e r courts and mediation i s conducted just like in C A M . I f mediation fails or the p a r t i e s r e f u s e mediation, t h e c a s e goes back t o t h e judge who d o e s n o t yet try the case. The j u d g e , a c t i n g sequentially a s Conciliator, N e u t r a l Eva luato r a n d Mediator or a combination o f t h e t h r e e , attempts to c o n v i n c e the parties t o s e t t l e their case amicably. If the parties still refuse to settle, t h e c a s e goes back
The case has been t r i e d a n d judgment h a s b e e n rendered a t t h e l o w e r c o u r t s but has b e e n appealed to the CA.
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!Duration of mediation in the PMC
!The Mediator shall have a period of not exceeding 30 days to complete the mediation process. Such period shall be computed from the date when the parties first appeared for the initial conference as stated in the Order to appear. An extended period of another 30 days may be granted by the court, upon motion filed by the Mediator, with the conformity of the parties.
!Availability of JDR even during trial
!Cases may be referred to JDR even during the trial stage upon written motion of one or both parties indicating willingness to discuss a possible compromise. If the motion is granted, the trial shall be suspended and the case referred to JDR, which shall be conducted by another judge through raffle in multiple sala courts.
!Consequence of failure of one party to participate in mediation !Once the court determines that the case is mediatable, the parties are compelled to appear before the PMC unit. If the complainant fails to appear for mediation, the case may be dismissed. If the defendant is absent, the court will then decide the case on the basis of what was presented by the plaintiff alone. !Effect of the referral of the case to CAM and JDR
!The period during which the case is undergoing mediation shall be excluded from the regular and mandatory periods for trial and rendition of judgment in ordinary cases and in cases under summary proceedings.
!Procedure after the parties reached a settlement
!If full settlement of the dispute is reached, the parties, assisted by their respective counsels, shall draft the compromise agreement which shall be submitted to the court for judgment upon compromise or other appropriate action.
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!Where compliance is forthwith made, the parties shall instead submit a satisfaction of claims or a mutual withdrawal of the case and, thereafter, the court shall enter an order dismissing the case. If partial settlement is reached, the parties shall, with the assistance of counsel, submit the terms thereof for the appropriate action of the court, without waiting for resolution of the unsettled part.
!Effect of the non- compliance of the other party with the agreement reached !The court which approved the compromise agreement must be informed immediately for it to issue an order to comply. Sanctions will be imposed for non-compliance. The aggrieved party may also apply for a writ of execution. !Remedy if the case is not resolved during JDR
!1. Multiple sala court- If the case is not resolved during the JDR, the case shall
be raffled to another branch for the pre- trial proper until judgment.
!For cases with pending applications for restraining orders/preliminary injunctions, the judge to whom the case was raffled shall rule on the said applications. During the pre-trial stage, the judge refers the case to CAM, but if the parties do not settle at CAM, the case will be raffled to another branch for JDR. If the parties do not settle at JDR, the case will be returned to the branch that ruled on the applications for the pre-trial proper and up to judgment.
!2. Single sala court - Unless otherwise agreed upon as provided, the JDR
proceedings will be conducted by the judge of the pair court, if any, otherwise, by the judge of the nearest court as determined by the concerned Executive Judge. The JDR proceedings shall be conducted at the station where the case was originally filed. The result of the JDR proceedings shall be referred to the court of origin for appropriate action, e.g. approval of the compromise agreement, trial, etc.
!Notwithstanding the foregoing, before the commencement of the JDR proceedings, the parties may file a joint written motion requesting that the court of origin conduct the JDR proceedings and trial.
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!3. Family court- Unless otherwise agreed upon as provided below, the JDR
proceedings in areas where only one court is designated as a family court, shall be conducted by a judge of another branch through raffle. However, if there is another family court in the same area, the family court to whom the case was originally raffled shall conduct JDR proceedings and if no settlement is reached, the other family court shall conduct the pre-trial proper and trial.
!Notwithstanding the foregoing, before commencement of the JDR proceedings, the parties may file a joint written motion requesting that the family court to which the case was originally raffled shall conduct the JDR proceedings and trial.
!Despite the non-mediatable nature of the principal case, like annulment of marriage, other issues such as custody of children, support, visitation, property relations and guardianship, may be referred to CAM and JDR to limit the issues for trial.
!4. Commercial, intellectual property and environmental courts- Unless
otherwise agreed upon as provided below, the JDR proceedings in areas where only one court is designated as commercial/intellectual property/environmental court, hereafter referred to as special court, shall be conducted by another judge through raffle and not by the judge of the special court. Where settlement is not reached, the judge of the special court shall be the trial judge. Any incident or motion filed before the pre-trial stage shall be dealt with by the special court that shall refer the case to CAM.
!Notwithstanding the foregoing, before commencement of the JDR proceedings, the parties may file a joint written motion requesting that the special courts to which the case was originally raffled shall conduct the JDR proceedings and trial.
!TRIAL
RULE 119 !Trial
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!The examination before a competent tribunal according to the laws of the land, of facts put in issue in a case for the purpose of determining such issue.
!After a plea of not guilty is entered, the accused shall have at least 15 days to prepare for trial. The trial shall commence within 30 days from receipt of pre-trial order (Sec. 1, Rule 119).
!NOTE: Under Sec. 7 of the Rule 114, accused is entitled as for right to at least two days to prepare for trial. Denial of this right to prepare is reversible error; the proper remedy from a judgment of conviction under such case is appeal and not certiorari nor habeas corpus (Montilla v. Arellano, G.R. No. 123872, Jan. 30, 1998).
!Hearing
!Hearing is not confined to trial, but embraces several stages of litigation including the pre- trial stage. A hearing does not necessarily imply the presentation of oral or documentary evidence in open court but that the parties are afforded an opportunity to be heard (Republic v. Sandiganbayan, 416 SCRA 133, 2003).
!Procedure of trial
!The trial once commenced, shall continue from day to day as far as practicable until terminated. However, it may be postponed for a reasonable period of time for good cause (Sec. 2, Rule 119).
!NOTE: The granting or refusal of an application for continuance or postponement of the trial lies within the sound discretion of the court and the discretion will not be interfered with by mandamus or by appeal, unless there is grave abuse of discretion.
!Purpose of the continuous trial system
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The purpose of the system is to “expedite the decision or resolution of cases in the trial courts” considering the mandate of Sec. 12, Art. XVIII of the 1987 Constitution. SC Circular No. 1-89 requires that the “judge shall conduct the trial with utmost dispatch, with judicious exercise of the court's power to control the trial to avoid delay” and that “a strict policy on postponements shall be observed.”
!NOTE: The SC adopted the continuous trial system as a mode of judicial fact-finding and adjudication conducted with speed and dispatch so that trials are held on the scheduled dates without postponement, the factual issues for a trial well defined at pre-trial and the whole proceedings terminated and ready for judgment within 90 days from the date of initial hearing, unless for meritorious reasons an extension is permitted.
!Q: Petitioner assails the decision of the CA affirming the decision of the RTC in denying his petition for postponement of the trial on account of the absence of his witnesses to appear during trial. In deciding the case against petitioner, the CA held that the RTC did not act in grave abuse of its discretion as the petitioner failed to substantiate his motion for postponement as required by the Rules. Is the CA correct?
!A: Yes. As it is a well-settled rule that motions for postponement are addressed to the sound discretion of the court and this discretion would not be interfered with unless it has been clearly abused. In order for the absence of a witness to justify the postponement of a trial, the following must be shown: First, that the witness is really material and appears to the court to be so; second, that the party who applies has been guilty of no neglect; and third, that the witness can be held at the time to which the trial has been deferred, and, incidentally, that no similar evidence could be obtained. Further, the affidavit should contain a statement that the facts to which it is claimed the absent witness would testify cannot be proved by any other witnesses who are available, or by the exercise of diligence, could have been made available to the applicant at the trial(Casilan vs. Gancayco, et. al., G.R. No. L-10525, August 29, 1958).
!Q: In an action to declare null and void the order of respondent judge in dismissing the criminal cases, petitioner claims that said judge has lost jurisdiction over the criminal cases by failure of the interested parties to secure a written authority from the Chief Justice of the Supreme Court authorizing the adjournment of the trial thereof beyond the three-month period provided in Rule 22, Sec. 3 of the Revised Rules of Court. Is the petition meritorious?
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!A: No. As the applicable rule on adjournments and postponements in criminal cases is found not in Sec. 3, Rule 22 but in Sec. 2, Rule 119. The only limitation expressed in Rule 119 is that the postponement of the trial of a criminal case must be for 'good cause' shown and for such period of the time as 'the ends of justice and the right of the defendant to a speedy trial require. The greater flexibility of the rule on postponements in criminal actions was obviously based on the criterion in the early case of U.S. v. Ramirez that the trial court is in criminal proceedings "the guardian of the rights of the accused as well as those of the people at large, and should not unduly force him to trial, nor for light causes jeopardize the rights or interests of the public" and that "the discretion which the trial court exercises must be judicial and not arbitrary" consistent with the ends of justice and the granting of sufficient time and opportunity to both prosecution and defense to present their witnesses and the right of the accused to a speedy trial (People vs. Catolico, 38 SCRA 389, 1971).
!Order of trial in criminal cases
!In criminal cases, unless the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the trial shall proceed in the following order:
1. The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.
2. The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of a provisional remedy in the case.
3. The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. !NOTE: Rebuttal evidence is any competent evidence to explain, repel, counteract or disprove the adversary’s proof. It is receivable only where new matters have been developed by the evidence of one of the parties and is generally limited to a reply to new points. !
4. Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda (Sec. 11, Rule 119). !
NOTE: The order of the trial may be modified when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense [Sec. 11(e), Rule 119; Sec 1(e), Rule 118]. !
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Q: What is reverse trial and when may it be resorted to? Explain briefly. (2007 Bar Question)
!A: When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the trial court may allow the accused to present his defense first and thereafter give the prosecution an opportunity to present its rebuttal evidence. A departure from the order of the trial is not reversible error as where it was agreed upon or not seasonably objected to, but not where the change in order of the trial was timely objected by the defense.
!Where the order of the trial set forth was not followed by the court to the extent of denying the prosecution an opportunity to present evidence, the judgment is a nullity. If there is not enough evidence to prove the accused’s guilt beyond reasonable doubt, then the defense should file demurrer to evidence.
!Right and opportunity to adduce additional evidence
!If the judge is not satisfied with the evidence adduced in criminal cases, he may, on his motion, call witnesses or recall some of the same witnesses for the purpose of satisfying his mind with the reference to particular facts involved in the case.
!Case deemed submitted for decision
!Upon the admission of the parties’ evidence-in-chief, rebuttal and sur-rebuttal proof, the case is deemed submitted for decision unless the court directs them to argue their respective memoranda.
! INSTANCES WHEN PRESENCE OF THE ACCUSED REQUIRED
!Instances when presence of the accused is required
!1. Upon arraignment and in entering plea; 2. During trial when his presence is necessary for the purpose of identification;
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3. Upon promulgation of judgment except for light offenses 4. When the court with due notice requires so (People v. Joven De Grano, et. al,
GR No. 167710, June 5, 2009). !Time limit for the trial of criminal cases
!GR: Trial shall not exceed 180 days from the first day of trial. !XPNs: 1. Those governed by the rules on summary procedure; 2. Those where the penalty prescribed by law does not exceed 6 months
imprisonment or a fine of P1,000 or both; and 3. Those authorized by the Chief Justice of the SC (Sec. 6, RA 8493, Speedy Trial
Act). !NOTE: Commencement of trial may be extended based on the following conditions: 1. For the 180 days, for the first 12 calendar month period from the effectivity of the
law. 2. 120 days for the second 12 month period. 3. 80 days for the third 12 month period (Sec. 9, RA 8493). !Effect of court's failure to comply with the mandates of the Speedy Trial Act to terminate the case within the 180 day period
!The judge may be charged administratively, or may be fined, suspended or removed unless his failure to comply with the speedy trial act is for reasons not attributable to him.
!Cases where the time limitation is inapplicable
!1. When the offended party is about to depart with no definite date of return; 2. Child abuse cases (Sec. 32, RA 7610 or The Child Abuse Act); 3. Violations of Dangerous Drugs Law; and 4. Kidnapping, robbery by a band, robbery against banking or financial
institution, violation of Carnapping Act and other heinous crimes (Herrera, 2007). !
Duties of the Presiding Judge under the continuous trial system
!1. Adhere faithfully to the session hours prescribed by laws;
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2. Maintain full control of the proceedings; 3. Effectively allocate and use time and court resources to avoid court delays;
and 4. Continuous trial on a weekly or other short-term trial calendar at earliest
possible time. !Exclusions in computation of time within which trial must commence
!1. Any periods of delay resulting from other proceedings concerning the accused,
including but not limited to the following: a. Examination of the physical and mental condition of the accused; b. Proceedings with respect to other criminal charges against the accused; c. Extraordinary remedies against interlocutory orders; d. Pre-trial proceedings; provided, that the delay does not exceed 30 days; e. Orders of inhibition, or proceedings relating to change of venue of cases
or transfer from other courts; f. A finding of the existence of a prejudicial question; g. Reasonably attributable to any period, not to exceed 30 days, during
which any proceeding concerning the accused is actually under advisement.
2. Any period of delay resulting from the absence or unavailability of an essential witness;
3. Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial;
4. If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, any 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. A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction, or, as to whom the time for trial has not run and no motion for separate trial has been granted; and
6. Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its 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. 3, Rule 119). !
Q: In a petition assailing the validity of the order of the trial court, the petitioner insists that the judge acted with grave abuse of discretion when it dismissed the criminal case against the accused on the ground that that the 30-day time limit set by Rule 119 had been breached. It is, further, claimed
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by the petitioner that their pending petition for transfer of venue should interrupt proceedings and, therefore, halt the running of the 30-day time limit. Is the petition meritorious? !A: No. As the delay that may be excluded from the time limit in Sec. 3 of Rule 119 within which trial must commence are those resulting from proceedings concerning the accused. The time involved in the proceedings in a petition for transfer of venue can only be excluded from said time limit if it was the accused who instituted the same. Further, the petition for transfer of venue cannot interrupt proceedings unless a TRO or writ of preliminary injunction has been issued in accordance with Sec. 7 of Rule 65 as said petition is akin to a petition for certiorari (Mari vs. Gonzales, G.R. No. 187728, September 12, 2011). !Factors to be considered for granting continuance
!Whether or not:
1. The failure to grant continuance would make a continuation of the proceeding impossible or result in a miscarriage of justice; or
2. The case, as a whole, is novel, unusual and complex, or it is unreasonable to expect adequate preparation within the periods of time established therein (Sec. 4, Rule 119). !
Prohibited grounds for a continuance
!1. Congestion of the court’s calendar or due to lack of diligent preparation; 2. Failure to obtain available witnesses on the part of the prosecutor (Sec. 4,
Rule 119). !Time limit following an order for new trial
!GR: If the accused is to be tried again pursuant to an order for a new trial, the trial shall commence within 30 days from notice of order. !XPN: If the 30-day period becomes impractical due to unavailability of the witnesses and other factors, it may be extended by the court but in no case should it exceed 180 days from notice of said order for new trial (Sec. 5, Rule 119). !Duties of the public attorney when the accused is imprisoned
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It shall be his duty to do the following: 1. Shall promptly undertake to obtain the presence of the prisoner for trial or
cause a notice to be served on the person having custody of the prisoner requiring such person to so advice the prisoner of his right to demand trial.
2. Upon receipt of that notice, the custodian of that prisoner shall promptly advice the prisoner of the charge and of his right to demand trial. If at any time thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney.
3. Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial.
4. When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purposes of trial, the prisoner shall be made available accordingly(Sec. 7, Rule 119). !
Acts of the counsel, attorney, or prosecutor which would warrant a sanction
!1. Knowingly allowing the case to be set on trial without disclosing that a
necessary witness would be unavailable for trial; 2. Files a motion solely for delay, knowing it to be frivolous and without merit; 3. Knowingly makes a false statement in order to obtain continuance which he
knows to be false and which is material to the granting of a continuance; and 4. Willfully fails to proceed to trial without justification (Sec. 8, Rule 119). !Examination of defense witness v. examination of prosecution witness before
trial
!Examination of
Defense Witness
Examination of Prosecution
Witness
The accused may have his w i t n e s s e x a m i n e d conditionally in h i s b e h a l f be f o re t r i a l upon motion with notice to a l l o t h e r parties.
Conducted in the presence of t h e a c c u s e d u n l e s s h e waived his right a f t e r r e a s o n a b l e notice.
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Grounds:
1.Witness is so sick to afford r e a s o n a b l e g r o u n d t o believe that he will not be a b l e t o a t tend the trial.
2.He res ides m o r e t h a n 1 0 0 k i l o m e t e r s and has no m e a n s t o a t tend the same.
3.Other similar circumstances exist that would make h i m unavai lable o r p r e ven t h i m f r o m a t t e n d i n g trial (Sec. 12, Rule 119).
Grounds:
1.The witness is too sick to a p p e a r a t trial.
2.H e h a s t o l e a v e t h e Ph i l i p p i n e s w i t h n o definite date o f r e t u r n (Sec. 15, Rule 119);
C o n d u c t e d b e f o r e a n y judge, member of bar in good s t a n d i n g o r b e f o r e a n y inferior court.
Conducted only b e f o r e t h e judge or the cou r t whe re t h e c a s e i s pending.
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!Deposition !It is the testimony of a witness taken upon oral questions or written interrogatories, in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated and intended to be used in preparation and upon the trial of a civil or criminal prosecution. !Purposes of taking deposition !1. Greater assistance to the parties in ascertaining the truth and checking and
preventing perjury; 2. Provide an effective means of detecting and exposing false, fraudulent claims
and defenses; 3. Make available in a simple, convenient and inexpensive way, facts which
otherwise could not be proved except with greater difficulty; 4. Educate the parties in advance of trial as to the real value of their claims and
defenses thereby encouraging settlements, 5. Expedite litigation; 6. Prevent delay; 7. Simplify and narrow the issues; and 8. Expedite and facilitate both preparation for and trial. !
N o r i g h t t o cross examine.
Right to cross-e x a m i n e . H e n c e s u c h statements of the prosecution witnesses may thereafter be admissible in behalf of or a g a i n s t t h e accused.
May be made if t h e w i t n e s s resides more than 100 km from the place of trial (Secs. 13 and 15, Rule 119).
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Conduct of trial for several accused !GR: When two or more persons are jointly charged with an offense, they shall be tried jointly. This rule is so designed as to preclude a wasteful expenditure of judicial resources and to promote an orderly and expeditious disposition of criminal prosecutions. !XPN: The court, upon motion of the prosecutor or any of the defendants, may order a separate trial for one or more accused (Sec. 16, Rule 119). !NOTE: In the interest of justice, a separate trial may be granted even after the prosecution has finished presenting its evidence in chief (Joseph v. Villaluz, G.R. No. L-45911, April 11, 1979). If a separate trial is granted, the testimony of one accused imputing the crime to his co-accused is not admissible against the latter. In joint trial, it would be admissible if the latter had an opportunity for cross-examination. !
REQUISITE BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE OF WITNESS
!Requisites before a trial can be suspended on account of the absence of a witness
!That the: 1. Witness is material and appears to the court to be so; 2. Party who applies has been guilty of no neglect; 3. Witnesses can be had at the time to which the trial is deferred and no similar
evidence could be obtained; and 4. Affidavit showing the existence of the above circumstances must be filed. !Remedies of the accused when a prosecuting officer without just cause secures postponements of the trial against his protest beyond a reasonable period of time
!1. Mandamus to compel a dismissal of the information; or 2. If he is restrained of his liberty, by habeas corpus to obtain his freedom. !
TRIAL IN ABSENTIA
!Trial in absentia
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Sec. 14 (2), Art. 3 of the Constitution provides that trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable (Parada v. Veneracion, A.M. No.RTJ-96-1353, March 11, 1997).
!Requisites of trial in absentia
!1. The accused has been arraigned; 2. He has been notified of the trial; and 3. His failure to appear is unjustified [Sec. 14(2), Art. III, 1987 Constitution of
the Phiippines; Bernardo v. People, 520 SCRA 332, April 4, 2007]. !Effects of trial in absentia
!The accused waives the right to present evidence and cross-examine the witnesses against him. The accused’s waiver does not mean, however, that the prosecution is deprived of the right to require the presence of the accused for purposes of identification by the witnesses which is vital for conviction of the accused, except where he unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial.
!Q: Assailing the validity of the decisions of both trial and appellate court, the petitioner questions the decisions of both courts convicting him for violation of BP 22 on the ground that he was denied due process of law as the trial court proceeded with his trial and promulgated the assailed decision in absentia. Is the petition meritorious?
!A: No. The holding of trial in absentia is authorized by law. Under Sec. 14 (2), Art. III of the 1987 Constitution, “after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.” The failure of the accused to appear before the court in spite of notice has been considered a waiver of their right to be present at their trial, and the inability of the court to notify them of the subsequent hearings did not prevent it from continuing with their trial. They were deemed to have received notice. Thereafter, the trial court had the duty to rule on the evidence presented by the prosecution against all the accused and to render its judgment accordingly (Bernardo vs. People, G.R. No. 166980, April 4, 2007.).
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!REMEDY IF ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED
PERIOD
!Remedy if accused is not brought to trial within the prescribed period !If the accused is not brought to trial within the time limit required by Sec. 1(g), Rule 116, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial (Sec. 9, Rule 117). !NOTE: The dismissal shall be subject to the rules on double jeopardy (Ibid.). !Burden of proving the motion !The accused has the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under Sec. 3, Rule 117 (Ibid.). !Failure of the accused to move for dismissal prior to trial !The failure of the accused shall constitute a waiver of the right to dismiss under Sec. 9, Rule 117. !Remedies available to the accused when his right to speedy trial is violated !1. Ask for the trial of the case; 2. Unreasonable delay of the trial of a criminal case as to make the detention of
defendant illegal gives ground for habeas corpus as a remedy for obtaining release;
3. Mandamus proceeding to compel the dismissal of the information; or 4. Ask for the trial of the case and then move to dismiss (Gandicela v. Lutero,
G.R. No. L-4069, March 5, 1951). ! REQUISITES FOR THE DISCHARGE OF THE ACCUSED TO BECOME A STATE
WITNESS
!State witness
!He is one of two or more persons jointly charged with the commission of a crime but who is discharged with his consent as such accused so that he may be a witness for the State (People v. Ferrer, G.R. No. 102062, March 14, 1996).
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!Requisites before an accused may become a State witness
!1.There is absolute necessity for the testimony of the accused whose discharge
is requested; !The discharge or exclusion of a co-accused from the information in order that he may be utilized as state witness is expedient that must be availed of only when there is absolute necessity for the testimony of the accused whose discharge is requested, and not when his testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution (People v. Borja, 106 Phil. 1111). !
2.There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the said accused; !It is essential, before a defendant is discharged from the information for the purpose of utilizing him as a witness for the government, that there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused (U.S. vs. Mandangan, 52 Phil. 62). !
3.The testimony of said accused can be substantially corroborated in its material points; !The testimony of the accused sought to be discharged must be susceptible of substantial corroboration in its material points. An example of this is where the testimony of the discharged witness was amply supported by the fact that various articles of the stolen property were found secreted in the place where he indicated them to be (U.S. vs. Mananquil, 25 Phil. 75). !
4.Said accused does not appear to be the most guilty; and !The discharged defendant need not be the least guilty; all the law requires, in order to discharge an accused and to use him as a state witness, is that the defendant whose exclusion is requested does not appear to be the most guilty, not necessarily that he was the least guilty(People vs. Faltado, 84 Phil. 89). !
5.Said accused has not at any time been convicted of any offense involving moral turpitude (Sec. 17, Rule 119). !Moral turpitude includes any act done contrary to justice, honesty, modesty or good morals. It is an act of baseness, vileness, or depravity in the private and
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social duties which a man owes his fellowmen and to society in general contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals.
!Persons who may avail the Program of Witness Protection, Security and Benefit Act (RA 6981) !Any person who has witnessed or has knowledge or 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 before any investigating authority, may be admitted into the Program, provided that: !1. The offense in which his testimony will be used is a grave felony as defined
under the RPC, or its equivalent under special laws; 2. His testimony can be substantially corroborated in its material points; 3. He or any member of his family within the second civil degree of
consanguinity or affinity is subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony; and
4. 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 (Sec. 3, RA 6981). !
Q: Petitioner claims that the public respondent judge erred when it ordered the discharge of private respondents as state witnesses when the latter were already charged along with the other accused, including him, before they were admitted to the Witness Protection under RA 6981. Petitioner argues that if this were to be allowed, the same is tantamount to permitting the prosecution to supplant with its own the court’s exercise of discretion on how a case over which it has acquired jurisdiction, will proceed. Is the petition meritorious?
!A: No. The discharge of an accused under RA 6981 is separate and distinct from Rule 119. Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. The Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. RA 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime. What is only required under RA 6981 is compliance with Sec. 14 of Rule 110 requiring that the exclusion of the accused be made only upon motion by the
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prosecutor, with notice to the offended party and with leave of court (Yu vs. Judge RTC of Tagaytay City, G.R. No. 142848, June 30, 2006).
!Q: Is the discharge of an accused as a state witness necessary before the prosecution be allowed to present him as a prosecution witness?
!A: No. As there is nothing in the rules that require that the accused be discharged first as a state witness before he becomes a prosecution witness. While it is true that an accused cannot be made a hostile witness for the prosecution, for to do so would compel him to be a witness against himself, he may, however, testify against a co-defendant where he has agreed to do so, with full knowledge of his right and the consequences of his acts. There is a difference between testifying as state witness and testifying as a co-accused. In the first, the proposed state witness has to qualify as a witness for the state, after which he is discharged as an accused and exempted from prosecution. In the second, the witness remains an accused and can be made liable should he be found guilty of the criminal offense (People vs. Chaves, G.R. No. 131377, February 11, 2003).
!Period for the application for discharge of the state witness
!It should be made upon motion of the prosecution before resting its case.
!EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS
!Effects of the order discharging the accused as a State witness
!GR: 1. Discharge of accused operates as an acquittal and bar to further prosecution
for the same offense (Sec. 18, Rule 119) 2. Evidence adduced in support of the discharge shall automatically form part of
the trial (People v. Feliciano, G.R. No. 136258, October 10, 2001); and 3. If the court denies the motion to discharge the accused as State witness,
his sworn statement shall be inadmissible in evidence (People v. Feliciano, G.R. No. 136258, October 10, 2001). !
XPNs:
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1. When the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of his discharge (Sec. 18, Rule 119).
2. Failure to testify refers exclusively to defendant’s will or fault,
3. Where an accused who turns state’s evidence on a promise of immunity but later retracts and fails to keep his part of the agreement, his confession of his participation in the commission of the crime is admissible as evidence against him (People v. Beberino GR No L-23213 October 28, 1977).
!NOTE: Discharge under this rule is only one of the modes to be a State witness. Other modes are:
1. The Witness Protection Program of RA 6981; 2. The power of the Ombudsman to grant immunity under Sec. 17, RA 6770; 3. Immunity under PD 749; 4. Immunity under EO 14-A; 5. Immunity under the Comprehensive Dangerous Drugs Act of 2002, RA 9165; and 6. Immunity and Protection under the Human Security Act of 2007, RA 9372. !Effects when the discharged accused retracts or fails to comply with his part of the agreement
!If the retraction or failure to testify is solely his fault, his confession of his participation in the commission of the crime is admissible as evidence (People v. Beberino, G.R. No. L-23092, October 28, 1977).
!Witness Protection Program v. Sec. 17, Rule 119 of the Rules of Court
!Witness
Protection Program
Rules of Court
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The offense in w h i c h t h e testimony is to b e u s e d i s limited only to grave felony under the RPC o r i t s e q u i v a l e n t under special law.
I t h a s n o qualification. It applies to all felonies.
Any member of the family of t h e p e r s o n app ly ing for a d m i s s i o n w i t h i n t h e second c i v i l d e g r e e o f consanguinity or affinity is subjected to threat of his life or bodily injury or there is a likelihood that he will be killed, forced, i n t im idated, h a r a s s e d o r corrupted to p revent h im from testifying or to testify f a l s e l y o r evas ively on account of his testimony.
T h i s i s n o t required.
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!NOTE: Both require that there is absolute necessity for the testimony and that there is no other direct evidence available for the prosecution of the offense committed.
!Rule when the discharge of an accused operates as an acquittal
!
!The w i t ne s s applying is not a l a w enforcement officer.
Th e r e i s n o s u c h limitation. One c a n b e discharged as a w i t n e s s whether he is a l a w enforcement officer or not.
The immunity is granted by DOJ.
The immunity is granted by the court.
The witness is automatically e n t i t l e d t o certain rights and benefits.
The witness so d i s c h a r g e d must still apply f o r t h e enjoyment of said rights and benefits in the DOJ.
The w i t ne s s need not be c h a r g e d elsewhere.
He is charged in court as one of the accused as stated in the information.
No information may thus be fi led against the witness.
The cha rges a g a i n s t h i m s h a l l b e dropped and t h e s a m e operates as an acquittal.
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GR: The discharge of the accused shall amount to an acquittal and shall be a bar to future prosecution for the same offense. !
XPN: If the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of the discharge (Sec. 18, Rule 119). !Remedy when mistake has been made in charging the proper offense
!When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears to be a good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the case upon filing of the proper information (Sec. 19, Rule 119).
!NOTE: This rule is predicated on the fact that an accused has the right to be informed of the nature and cause of the accusation against him, and to convict him of an offense different from that charged in the complaint or information would be an unauthorized denial of that right.
! DEMURRER TO EVIDENCE
!Demurrer to evidence
!It is an objection by one of the parties in an action 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 (Nicolas v. Sandiganbayan, 544 SCRA 324, February 11, 2008). !NOTE: A demurrer to evidence is actually a motion to dismiss that is filed by the accused after the prosecution has rested its case (1994 Bar Question). !Rule on demurrer to evidence
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!NOTE: If the demurrer is sustained by the court, the order of dismissal is tantamount to an acquittal, hence it is NOT appealable. On the other hand, the order of denial of the demurrer to evidence is not reviewable by appeal or certiorari before judgment, unless the denial is attended by grave abuse of discretion, in which case such denial may be assailed through a petition for certiorari.
!Effect of filing a demurrer with leave of court v. Filing a demurrer without leave
!
How made 1. Court on its own initiative; or 2. Upon filing of the accused for demurrer of evidence: a. With leave of court; or b. Without leave of court.
When made After the prosecution rests its case.
Ground Insufficiency of evidence
Effect The court may dismiss the case (Sec. 23, Rule 119).
Demurrer With Leave of Court
Demurrer Without Leave
of Court
I f l e a v e o f c o u r t i s d e n i e d , t h e accused may proceed with presenting his evidence.
If demurrer is denied, it is tantamount to a waiver of the accused’s right t o p r e s e n t evidence and a s a consequence the case will be submitted for judgment on the basis of the evidence for t h e prosecution.
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The motion for leave of court t o f i l e a demurrer to evidence shall s p e c i f i c a l l y s t a t e i t s g rounds and shall be filed within a non-e x t e n d i b l e p e r i o d o f 5 days after the p r o s e c u t i o n rests its case. T h e p r o s e c u t i o n m a y o p p o s e t h e m o t i o n within a non-e x t e n d i b l e p e r i o d o f 5 days from its receipt. !I f l e a v e o f c o u r t i s granted, the accused may f i l e t h e demurrer to e v i d e n c e within 10 days. T h e p r o s e c u t i o n may however, o p p o s e t h e demurrer to e v i d e n c e within a non-e x t e n d i b l e period of 10 days from the receipt of the demurrer (Sec. 23, Rule 119).
If demurrer is granted, the case wil l be dismissed, and will result to an acquittal of the accused. If d e m u r r e r i s consequently granted, it will r e s u l t t o acquittal of the accused. (
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!Purpose of leave of court
!To determine whether or not the defendant in a criminal case has filed the demurrer merely to stall the proceedings (People v. Mahinay, G.R. No. 109613, July 17, 1995).
!Demurrer to evidence v. Motion to dismiss
!
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Demurrer to Evidence
Motion to Dismiss
Assumes that t h e p r o s e c u t i o n h a s a l r e a d y rested its case fi led by the accused with o r w i t h o u t leave of court and submi t s the case for judgment on the evidence o f t h e prosecution.
It is based on the denial of the accused’s right to speedy t r i a l characterized b y unreasonable, vexatious and o p p r e s s i v e delay without fau l t of the accused, or by u n j u s t i f i e d s t a t e m e n t s t h a t unreasonably prolonged the trial.
It may be filed in good faith with or without leave of court.
I t i s f i l e d without leave of court and b e f o r e t h e prosecution has rested its case.
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JUDGMENT RULE 120 !
Judgment
!It is adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition of the proper penalty and civil liability, if any. It is a judicial act which settles the issues, fixes the rights and liabilities of the parties, and is regarded as the sentence of the law pronounced by the court on the action or question before it (Sec. 1, Rule 120).
!Difference between a judgment and a ratio decidendi
!A judgment pronounces the disposition of the case; while a ratio decidendi provides the basic reason for such determination.
!Final order
!It disposes of the whole subject matter or terminates a particular issue leaving nothing to be done but to enforce by execution what has been determined.
!Interlocutory order
!It is issued by the court when the proceeding is not yet terminated because not all matters of the proceedings have been finished.
! REQUISITES OF A JUDGMENT !
It must be: 1. Written in official language; 2. Personally and directly prepared by the judge; 3. Signed by the judge; and 4. Contain clearly and distinctly a statement of the facts and the law upon
which it is based (Sec. 1, Rule 120). !!
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NOTE: The jurisdictional requirements before a judgment may be validly rendered are jurisdiction over the subject matter, territory and the person of the accused (Antiporda, Jr. v. Garchitorena, 321 SCRA 551).
!CONTENTS OF JUDGMENT
!Contents of judgment
!The judgment must state: 1. If of conviction
a. Legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending its commission;
b. Participation of the accused whether as principal, accomplice or accessory; c. Penalty imposed upon the accused; and d. Civil liability or damages caused by the wrongful act or omission unless a
separate civil action has been reserved or waived (Sec. 2, Rule 120). 2. If of acquittal
a. Whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt; and
b. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did exist (Sec. 2, Rule 120). !
Q: Can the courts impose penalties in the alternative? !A: No. It is true that under many of the provisions of the penal law, the court has the discretion or alternative of imposing one or another of different penalties; but certainly it cannot be argued that, because the judge has the discretion of fixing one or another penalty, he can impose both in the alternative. He must fix positively and with certainty the particular penalty (U.S. vs. Chong Ting, 23 Phil. 120). !Rule on the award of indemnity to offended party in spite of acquittal !In case of acquittal, unless there is a clear showing that the act from which the civil liability might arise did not exist, the judgment must make a finding on the civil liability of the accused in favor of the offended party (Sec. 2, par. 2, Rule 120). !NOTE: The judgment of acquittal extinguishes the liability of the accused for damages only when it includes a declaration that the facts from which the civil liability might
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arise did not exist. Thus, the civil liability is not extinguished by acquittal where the acquittal is based on reasonable doubt (PNB vs. Catipon, 98 Phil. 286). !Rule regarding a judgment for two or more offenses charged in the complaint or information
!When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty of each offense, setting out separately the findings of the fact and law in each offense (Sec. 3, Rule 120).
!NOTE: Failure of the accused to object to the duplicity of offense charged in the complaint or information, is deemed a waiver thereof (Herrera, 2007).
!Rule on variance between the offense charged and proved
!GR: An accused can be convicted of an offense only when it is both charged and proved; if it is not charged although proved, or if it is not proved although charged, the accused CANNOT be convicted thereof.
!XPN: Where there is a variance between the offense charged in the complaint or information and that proved AND the offense as charged is included in or is necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved (Sec. 4). !NOTE: An accused cannot be convicted of an offense not charged or included in the information for this will be in violation of the constitutional right of the accused to be informed of the nature of the offense charged against him (Herrera, 2007).
!Effect of the judgment of conviction upon a minor
!The courts shall promulgate the sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to PD 603 or the Child and Youth Welfare Code. In which case, the child shall have been committed under the care of the
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DSWD or any other accredited government institution until he reaches the age of 21 or until the court so determines (Sec. 40, RA 9344, Juvenile Justice and Welfare Act of 2006).
!XPNs for the suspension of sentence of youthful offenders
!When such minor offender: 1. Has enjoyed previous suspension of sentence; 2. Is convicted of a crime punishable by death or life imprisonment; 3. Is convicted by a military tribunal; or 4. Is already of age at the time of sentencing even if he was a minor at the time
of the commission of the crime (Declarador v. Gubaton, G.R. No. 159208, August 18, 2006). !
Rule if the minor already reached the age of majority upon the promulgation of his sentence
!He is no longer entitled to the suspension of sentence. However, the time he spent during the period of his confinement shall be credited to his actual service of sentence. Furthermore, he shall still be entitled to the privileged mitigating circumstance of minority (People v. Francisco, G.R. No. 102976, October 25, 1995; RA 9344, Juvenile Justice and Welfare Act of 2006).
!PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION OF JUDGMENT
IN ABSENTIA !Promulgation of judgment !It is the official proclamation or announcement of judgment. It consists of reading the judgment or sentence in the presence of the accused and any judge of the court rendering the judgment (Ibid.). It is promulgated by reading it in the presence of the accused and any judge of the court which it was rendered, or when the judgment is one of conviction for a light offense, in the presence of the defendant’s counsel or representative (Ibid.). !NOTE: A judgment or sentence does not become a judgment or sentence in law until the same has been read or announced to the defendant or has become a part of the record of the court (U.S. vs. CFI of Manila, 24 Phil. 321).
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Authority to promulgate the judgment
!GR: The judge of the court who renders the judgment. !XPNs: When: 1.The judge is absent or outside the province or city – Judgment may be
promulgated by the clerk of court; and 2.Accused is confined or detained in another city – Judgment may be
promulgated by the executive judge of the RTC having jurisdiction over the place of confinement or detention (Sec. 6, Rule120). !
NOTE: Where there is not merely physical absence of the judge who penned the decision, but the cessation or termination of his incumbency as such judge, there is no judgment validly entered in such a case (Ong Siu vs. Paredes, 17 SCRA 661). !Q: Is the presence of the accused indispensable in the promulgation of judgment? !A: No. The promulgation shall still be made by: (1) recording such judgment in the criminal docket, and (2) serving him a copy thereof in his last known address or through his counsel. If judgment is one of conviction and the accused is absent without justifiable cause, the court shall order his arrest and he shall lose the remedies available in the rules against judgment and his bail shall be forfeited.
!However, the accused may surrender and file a motion for leave of court to avail of these remedies within 15 days from the promulgation of judgment. If such motion is granted, he may avail of these remedies within 15 days from notice of such order granting the motion (Sec. 6, Rule 120). He must however, state the reasons for his absence at the promulgation and prove that his absence was for a justifiable cause.
!Instances when judgment may be promulgated even if the accused is not present
!1. A judgment of acquittal. 2. Judgment is for a light offense, in which case judgment may be promulgated
in the presence of the counsel for the accused or a representative. 3. Accused fails to attend the promulgation despite due notice or if he jumped
bail or escaped from prison. Notice must be given to the bondsmen, warden, accused’s bailor and counsel (Sec. 6, Rule 120).
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!Rule on modification of judgment !A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected (Sec.7, Rule 120). !NOTE: A judgment of acquittal becomes final immediately after promulgation and cannot be recalled for correction or amendment (People vs. Sison, 105 Phil. 1248). !Remedy when the judgment fails to award civil liability !1. Appeal; 2. Certiorari; or 3. Mandamus !Mittimus
!It is a process issued by the court after conviction to carry out the final judgment, such as commanding a prison warden to hold the accused in accordance with the terms of judgment.
!Acquittal
!A finding of not guilty based on the merits, that is, the accused is acquitted because the evidence does not show that his guilt is beyond reasonable doubt, or a dismissal of the case after the prosecution has rested its case upon motion of the accused on the ground that the evidence fails to show beyond reasonable doubt that the accused is guilty.
!NOTE: It is well settled that acquittal, in a criminal case is immediately final and executory upon its promulgation, and that accordingly, the State may not seek its review without placing the accused in double jeopardy (Barbers v. Laguio Jr., AM No. RTJ-00-1568, February 15, 2001).
!Reasonable doubt
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The state of the case which, after full consideration of all evidence, leaves the mind of the judge in such a condition that he cannot say that he feels an abiding conviction to a moral certainty of the truth of the charge.
! FINALITY OF JUDGMENT !
Finality of judgment !1. After the lapse of time for perfecting an appeal !
NOTE: In case of death penalty is imposed, the CA shall automatically review the judgment before it becomes final. !2. When the sentence has been partially or totally satisfied. 3. When the accused has expressly waived in writing his right to appeal. 4. When the accused has applied for probation (Sec. 7, Rule 120). !Instances when the trial court loses jurisdiction even before the lapse of the 15 day period to appeal
1. The defendant voluntarily submits to the execution of the judgment; 2. When the defendant perfects an appeal; 3. Defendant withdraws his appeal; 4. Accused expressly waives in writing his right to appeal; 5. Accused files for probation. !
ENTRY OF JUDGMENT !The recording of the judgment or order in the book of entries of judgments shall constitute its entry. The record shall contain the dispositive part of the judgment order and shall be signed by the clerk, with a certificate that such judgment or order has become final and executory (Sec. 2, Rule 36). !
EXISTING PROVISIONS ON SUSPENSION OF SENTENCE OF YOUTHFUL OFFENDERS !
GR: Once the child is under 18 years of age at the time of the commission of the offense charged, the Court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the Court shall place the child in conflict with the law under suspended sentence without need of application. Suspension of sentence shall still be applied if the juvenile is already 18 years of age or more at the time of the pronouncement of his/her guilt (Sec. 38, RA 9344). !
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XPNs: 1. Offender has enjoyed previous suspension of sentence. 2. Offender is convicted of crime punishable by death or life imprisonment. 3. Offender is convicted by military tribunal. 4. Offender is already of age at the time of sentencing even if he was minor at
the time of the commission of the crime. !EXISTING PROVISIONS ON PROBATION ! !
Probation !The court may, after it shall have convicted and sentenced a defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and conditions it may deemed best. No application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction (Sec. 4, PD 968 as amended). !Offenders disqualified from probation !1. Those sentenced to serve a maximum term of imprisonment of more than 6
years. 2. Those charged with subversion or any crime against national security or public
order. 3. Those previously convicted by final judgment of an offense punished by
imprisonment not less than one month and one day and/or a fine not less than two hundred pesos.
4. Those who have been once on pardon. 5. Those who are already serving sentence at the time the Probation Law of 1976
became applicable (Sec. 9, PD 968 as amended). !!NEW TRIAL OR RECONSIDERATION
RULE 121 GROUNDS !
Motion for New Trial v. Motion for Reconsideration !New trial Reconsideration
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!!Period to file an MNT or MR
Rehearing of a case already decided but before the judgment of conviction therein rendered has become final, whereby errors of law or irregularities are expunged from the record or new evidence is introduced, or both steps are taken.
May be filed in order to correct errors of law or fact in the judgment. It does not require any further proceeding.
Grounds: 1. Errors of law or irregularities
prejudicial to the substantial rights of the accused have been committed during the trial.
2. 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 (Sec. 2, Rule121).
3. Other grounds which the court may cons ider in the exerc ise of i t s jurisdiction :
a. Negligence or incompetency of counsel or mistake which is so gross amounting to deprivation of the substantial rights of the accused and due process (Aguilar v. CA GR No. 114282, November 28, 1995);
b. Recantation of a witness where there is no evidence sustaining the judgment of conviction other than the testimony of such witness (Tan Ang Bun v. CA GR No. L- 47747, February 15, 1990);
c. Improvident plea of guilty which may be withdrawn;
d. Disqualification of attorney de officio to represent accused in trial.
e. Interest of justice(Sec. 6, Rule 121).
Grounds: !1. Errors of law; or 2. Errors of fact (Sec. 3, Rule121). !NOTE: The principle underlying this rule is to afford the trial court the opportunity to correct its own mistakes and to avoid unnecessary appeals from being taken. The grant by the court of reconsideration should require no further proceedings, such as taking of additional proof.
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!It should be filed with the trial court within 15 days from the promulgation of the judgment. If an appeal has already been perfected, a motion for new trial on the ground of newly discovered evidence maybe filed in the appellate court. !
REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON GROUND OF NEWLY DISCOVERED EVIDENCE
!Requisites before a new trial may be granted on the ground of newly discovered evidence (Berry Rule) !1. The evidence was discovered after trial; 2. Such evidence could not have been discovered and produced at the trial even
with the exercise of reasonable diligence; 3. It is material, not merely cumulative, corroborative or impeaching; and 4. The evidence is of such a weight that it would probably change the judgment
if admitted (Herrera, 2007). !NOTE: A new trial may be granted at any time before the judgment of conviction becomes final: 1. On motion of the accused. 2. On motion of the court but with consent of the accused. !Q: May errors or ignorance of counsel be a ground for new trial or reconsideration? !A: GR: Mistakes or errors of counsel in the conduct of his case are not grounds for new trial. This rule is the same whether the mistakes are the result of ignorance, inexperience, or incompetence. !XPN: If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that the client, who otherwise has a good cause, is prejudiced and denied his day in court, the litigation may be reopened to give the client another chance to present his case (Abrajano v. CA, G.R. No. 114282, October 13, 2000). !Form of a motion for new trial or reconsideration !The motion must: 1. Be in writing; 2. Be filed in court; 3. State the grounds on which it is based; and 4. If the motion for new trial is based on newly discovered evidence, it must be
supported by the affidavits of the witness by whom such evidence is expected
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to be given or duly authenticated copies of documents which it is proposed to introduce in evidence (Sec. 4, Rule 121). !
NOTE: While the rule requires that an affidavit of merit be attached to support a motion for new trial based on newly discovered evidence, the rule also allows that the defect of lack of merit may be cured by the testimony under oath of the defendant at the hearing of the motion(Paredes v. Borja, G.R. No. L-15559, November 29, 1961). !Recantation !The public and formal withdrawal by a witness of his prior statement (People v. Ballabare, G.R. No. 108871, November 19, 1996). !Recantation v. Desistance !
Recantation Affidavit of Desistance
A witness who previously gave a t e s t i m o n y s u b s e q u e n t l y declares that his statements are u n t r u e publicly(People v. Ballabare, G.R. N o . 1 0 8 8 7 1 , November 19 , 1996).
The complainant states that he did not really intend to institute the case and he is no longer interested in testifying or prosecuting.
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!EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION
!Effects of granting a new trial or reconsideration
!In all cases, when the court grants a new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly. !In addition, when new trial is granted on the ground of: !1. Errors of law or irregularities committed during the trial
a. All proceedings and evidence not affected by such errors and irregularities shall stand;
b. Those affected shall be set aside and taken anew; and c. In the interest of justice, the court may allow the introduction of
additional evidence. !2. Newly discovered evidence
a. The evidence already taken shall stand;
GR: It is not a g r o u n d f o r granting a new t r i a l a n d a r e h a r d l y g i v e n weight !XPN: When there is no evidence susta in ing the j u d g m e n t o f conviction other t h a n t h e testimony of the recanting witness (Tan Ang Bun v. C A , G . R . N o . L - 4 7 7 4 7 , F e b r u a r y 1 5 , 1990).
It is not by itself a g r o u n d f o r dismissal of the action (People v. Ramirez, G.R. Nos. 150079-80, June 10, 2004). It i s m e r e l y a n additional ground to buttress the defense and not a s o l e consideration for acquittal (People v. Ballabare, G.R. N o . 1 0 8 8 7 1 , November 19 , 1996).
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b. Newly discovered and other evidence as the court may, in the interest of justice, allow to be introduced, shall be taken and considered together with the evidence already in the record (Sec. 6, Rule121). !
NOTE: The effect of granting a new trial is not to acquit the accused of the crime of which the judgment finds him guilty but precisely to set aside said judgment so that the case may be tried de novo as if no trial had been had before. !New trial v. Reopening of the case !
!APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES !
Effect of filing a motion for new trial or reconsideration on the period of perfecting an appeal !A fresh period of 15 days to appeal is counted from the denial of the motion for reconsideration or new trial (Neypes v. CA, G.R. No. 141524, September 14, 2005). !Q: Does the “fresh period rule” apply to criminal cases? !
New Trial Re-opening of the Case
F i l e d a f t e r j udgmen t i s rendered but b e f o r e t h e f i n a l i t y thereof.
Made by the court before the judgment is rendered in the exercise of s o u n d discretion.
Made by the c o u r t o n motion of the accused or at i t s o w n instance but w i t h t h e consent of the accused.
D o e s n o t r e q u i r e t h e consent of the accused; may b e a t t h e i n s t a n c e o f e i ther party w h o c a n t h e r e a f t e r p r e s e n t a d d i t i o n a l evidence.
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A: Yes. The raison d’être for the "fresh period rule" is to standardize the appeal period provided in the Rules and do away with the confusion as to when the 15-day appeal period should be counted. The Court held in the case of Yu v. Samson-Tatad,G.R. No. 170979, February 9, 2011 that the pronouncement of a “fresh period” to appeal should equally apply to the period for appeal in criminal cases under Sec. 6 of Rule 122, for the following reasons: !1. BP 129, as amended, the substantive law on which the Rules of Court is
based, makes no distinction between the periods to appeal in a civil case and in a criminal case. !
2. The provisions of Sec. 3 of Rule 41 of the 1997 Rules of Civil Procedure and Sec. 6 of Rule 122 of the Revised Rules of Criminal Procedure mean exactly the same. There is no substantial difference between the two provisions insofar as legal results are concerned – the appeal period stops running upon the filing of a motion for new trial or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was this situation that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly addressed. !
3. While the Court did not consider in Neypes the ordinary appeal period in criminal cases under Sec. 6, Rule 122 of the Revised Rules of Criminal Procedure since it involved a purely civil case, it did include Rule 42 of the 1997 Rules of Civil Procedure on petitions for review from the RTCs to the CA and Rule 45 of the 1997 Rules of Civil Procedure governing appeals by certiorari to this Court, both of which also apply to appeals in criminal cases, as provided by Sec. 3 of Rule 122 of the Revised Rules of Criminal Procedure. !
APPEAL RULE 122 !
Appeal !It is a proceeding for review by which the whole case is transferred to the higher court for a final determination. It is not an inherent right of a convicted person. The right of appeal is statutory. Only final judgments and orders are appealable. !Parties who may avail of appeal !Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy (Sec. 1, Rule 122). !Period to take an appeal !
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It must be taken within 15 days from promulgation of judgment or from notice of final order appealed from (Sec. 6, Rule122). !
WHERE TO APPEAL
!Courts where appeal is taken !1. RTC, in cases decided by the MTC, MTCC, MeTC, or MCTC; 2. CA or to the SC in the proper cases provided by law, in cases decided by the
RTC; 3. SC, in cases decided by the CA(Sec. 2, Rule122); 4. SC, in cases decided by CTA en banc (Sec. 1 Rule 116 A.M. No. 05-11-07-CTA); 5. SC, in cases decided by Sandigan (Sec. 1 Rule 45). !Q: May the prosecution appeal a judgment of acquittal? !A: GR: No. The accused would be subjected to double jeopardy. !XPNs: 1. If the dismissal is made upon motion or with the express consent of the
accused. !XPNs to the XPN:
a. Insufficiency of the prosecution evidence; or b. Violation of the accused’s right to speedy trial. !
2. If the dismissal is not an acquittal or based upon consideration of the evidence on the merits;
3. If the question is purely legal so that should the dismissal be found incorrect, the case shall be remanded for further proceedings to determine the guilt or innocence of the accused; and
4. If there is a showing of grave abuse of discretion amounting to lack or excess of jurisdiction, certiorari under Rule 65 may be available !!
HOW IS APPEAL TAKEN (AMENDED BY AM 00-5-03-SC, October 3, 2002) !!Procedure of an appeal
Appeal to From decision of How taken
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RTC MTC 1. File a notice of appeal with the MTC;
2. Serve a copy of the notice to the adverse party.
CA RTC 1. Exerc is ing i t s or ig inal
jurisdiction for offenses with imposable penalties l e s s t h a n r e c l u s i o n p e r p e t u a o r l i f e imprisonment.
1. File a notice of appeal with the RTC;
2. Serve a copy of the notice to the adverse party.
2. Exercising its appellate jurisdiction.
File a petition for review under Rule 42.
3. Where the imposable penalty is: a. life imprisonment or
reclusion perpetua; or b. a lesser penalty for
offenses committed on the same occasion or which arose from the same occurrence that gave rise to the offense punishable reclusion perpetua or life imprisonment.
1. File a notice of appeal with the RTC;
2. Serve a copy of the notice to the adverse party.
4. Whe re t he impo sab l e penalty is death.
Automatic rev iew to CA(Sec. 10, Sec. 122).
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SC 1. All other appeals except: a. Decision of RTC where
the imposable penalty is life imprisonment or reclusion perpetua or a l e s s e r p e n a l t y f o r offenses committed on the same occasion or which arose from the same occurrence that gave rise to the offense punishable by reclusion p e r p e t u a o r l i f e imprisonment; and
b. D e c i s i o n s o f R T C imposing the penalty of death.
Petition for review on certiorari via Rule 45.
2. CA a. When it finds that death
p e n a l t y s h o u l d b e imposed.
Automatic review (Sec. 13, Rule 124).
b. W h e r e i t i m p o s e s reclusion perpetua, life imprisonment or a lesser penalty.
Notice of appeal (Sec. 13, Rule 124).
3. Sandiganbayan a. Exercising its appellate
jurisdiction for offenses where the imposable penalty is reclusion p e r p e t u a o r l i f e imprisonment.
File a notice of appeal
b. Exercising its original jurisdiction for offenses where the imposable penalty is reclusion p e r p e t u a a n d l i f e imprisonment.
File a notice of appeal (Sec. 13, Rule 124; Sec. 5, PD 1606 as amended by RA 8249).
c. Cases not falling in paragraphs (a) and (b) above.
Petition for review on certiorari via Rule 45.
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NOTE: By virtue of RA 9346, the imposition of death penalty is suspended. !!Modes of review recognized by the Rules of Court !1. Ordinary appeal; 2. Petition for review; 3. Petition for review on certiorari; 4. Automatic appeal. !Service of notice of appeal !GR: Through personal service made upon the adverse party or his counsel. !XPN: If personal service cannot be made, through: 1. Registered mail; or 2. By substituted service pursuant to Secs. 7 and 8 of Rule 13(Sec. 4, Rule122). 3. By publication, made in a newspaper of general circulation in the vicinity
once a week for a period not exceeding 30 days (Pamaran, 2010). !NOTE: The appellee may waive his right to notice of appeal. However, the appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interests of justice so require (Sec. 5, Rule122). !
EFFECT OF AN APPEAL !Effect of an appeal !An appeal in a criminal case opens the whole case for review and this includes the review of penalty, indemnity, and the damages involved. Consequently, on appeal, the appellate court may increase the penalty and indemnity of damages awarded by the trial court although the offended party had not appealed from said award, and the party who sought a review of the decision was the accused. !Modes of appeal that may be taken from a judgment convicting the accused !1. The accused may seek a review of said judgment as regards both criminal and
civil actions; or 2. The complainant may appeal only with respect to the civil action either
because the lower court has refused or failed to award damages or because the award made is unsatisfactory to him. !
Effect of perfection of appeal with regard to the jurisdiction of the court !Once an appeal in a case, whether civil or criminal, has been perfected, the court a quo loses jurisdiction over the case both over the record and over the
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subject of the case (Director of Prisons v. Teodoro, G.R. No. L-9043, July 30, 1955). Failure to serve a copy to the prosecutor is not a defect which can nullify the appeal or prejudice the unquestionable rights of the accused. Effects of failure to prosecute an appeal !1. Judgment of the court becomes final. 2. Accused cannot be afforded the right to appeal unless:
a. He voluntarily submits to the jurisdiction of the court; or b. He is otherwise arrested within 15 days from notice of judgment against
him. !EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED
!Effects of appeal by any of the several accused !1. An appeal taken by one or more of several accused shall not affect those who
did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter;
2. The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from; and
3. Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party (Sec. 11, Rule122). !
NOTE: In People v. Olivo, G.R. No. 177768, July 27, 2009, an accused has benefitted from the acquittal of his co-accused despite the former’s failure to appeal from the judgment. !Period to withdraw an appeal
!1. An appellant may withdraw his appeal before the record has been forwarded
by the clerk of court to the proper appellate court as provided by Sec. 8, Rule 122, in which case the judgment shall become final (Sec. 12).
2. The court may also, in its discretion, allow the appellant to withdraw his appeal, provided a motion to that effect is filed before the rendition of the judgment in the case on appeal (Sec. 12, Rule122). !
GROUNDS FOR DISMISSAL OF APPEAL
!1. Failure of the record on appeal to show on its face that the appeal was taken
within the period fixed by these Rules; 2. Failure to file the notice of appeal or the record on appeal within the period
prescribed by these Rules; !
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3. Failure of the appellant to pay the docket and other lawful fees as provided in Sec. 5 of Rule 40 and Sec. 4 of Rule 41;
4. Unauthorized alterations, omissions or additions in the approved record on appeal as provided in Sec. 4 of Rule 44;
5. Failure of the appellant to serve and file the required number of copies of his brief of memorandum within the time provided by these Rules;
6. Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in Sec. 13, paragraphs (a), (c), (d) and (f) of Rule 44;
7. Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; !
SEARCH AND SEIZURE RULE 126 !
Search Warrant !It is an: 1. Order in writing issued in the name of the People of the Philippines; 2. Signed by a judge; 3. Directed to a peace officer, commanding him to search for personal property
described therein; and 4. Bring it before the court (Sec. 1, Rule 126). !NOTE: The warrant must name the person upon whom it is to be served except in those cases where it contains a descriptio personae such as will enable the officer to identify the person. The description must be sufficient to indicate clearly the proper person upon whom it is to be served (People v. Veloso GR No L-23051, October 20, 1925). !General warrant !A search warrant which vaguely describes and does not particularize the personal properties to be seized without definite guidelines to the searching team as to what items might be lawfully seized, thus giving the officers of the law discretion regarding what articles they should seize. !NOTE: A general warrant is not valid as it infringes on the constitutional mandate requiring particular description of the things to be seized. !Scatter-shot search warrant !It is a warrant issued for more than one offense. It is invalid because it violates the Constitution. !
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NOTE: There must be strict compliance with the constitutional and statutory requirements. Otherwise, it is void. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify it (People v. Veloso, G.R. No. 23051, October 20, 1925). It will always be construed strictly without going the full length of requiring technical accuracy. !
NATURE OF SEARCH WARRANT
!It is in the nature of a criminal process and may be invoked only in furtherance of public prosecutions. Search warrants have no relation to civil process or trials and are not available to individuals in the course of civil proceedings, nor for the maintenance of a mere private right. It is interlocutory in character because it leaves something more to be done, which is the determination of the guilt of the accused. !
DISTINGUISH FROM WARRANT OF ARREST
!Warrant of Arrest v. Search Warrant !
Warrant of Arrest
Search Warrant
Order directed to the peace o f f i c e r t o execu te the w a r r a n t b y t a k i n g t h e person stated there in in to custody so that h e m a y b e b o u n d t o answer for the commission of the offense.
O r d e r i n writing in the name of the People of the P h i l i p p i n e s signed by the j u d g e a n d directed to the peace officer t o s e a r c h p e r s o n a l p r o p e r t y d e s c r i b e d therein and to b r i n g i t t o court.
D o e s n o t become stale.
Validity is for 10 days only.
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!NOTE: In general, the requirements for the issuance of a search warrant are more stringent than the requirements for the issuance of a warrant of arrest. The violation of the right to privacy produces a humiliating effect which cannot be rectified anymore. This is why there is no other justification for a search, except a warrant. On the other hand, in a warrant of arrest, the person to be arrested can always post bail to prevent the deprivation of liberty. !Distinguish search from seizure !Search is an examination of a man’s house or other buildings or premises or of his person for the discovery of contraband or illicit or stolen property or some evidence of guilt to be used in the prosecution of a criminal action for some offense with which he is charged. Seizure on the other hand is the physical taking of a thing into custody. !
APPLICATION FOR SEARCH WARRANT, WHERE FILED
May be served on any day and at any time of day or night.
To be served only in daytime u n l e s s t h e a f f i d a v i t a l l eges tha t the property is on the person or in the place to be searched.
S e a r c h i n g examination of w i tnes se s i s not necessary.
The judge must p e r s o n a l l y c o n d u c t a n examination of t h e c om p l a i n a n t a n d t h e witnesses.
Judge is merely called upon to examine and evaluate the report of the prosecutor and the evidence.
E x a m i n a t i o n m u s t b e probing. Not e n o u g h t o merely adopt the questions and answers a s k e d b y a p r e v i o u s investigator.
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!Court where to file an application for a search warrant !GR: It should be filed with the court within whose territorial jurisdiction the crime was committed. !XPNs: 1. For compelling reasons, any court within the judicial region where the crime
was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced
2. However, if the criminal action has been filed, the application shall only be made in the court where the criminal action is pending (Sec. 2, Rule126);
3. In case of search warrant involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions as well as violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the Anti- Money Laundering Act of 2001, the Tariff and Customs Code, the Executive judges and whenever they are on official leave of absence or are not physically present in the station, the Vice- Judges of RTCs of Manila and Quezon City shall have the authority to act on the application filed by the NBI, PNP and the Anti- Crime Task Force (ACTAF) (Administrative Matter No. 99-10-09-SC). !
NOTE: The application shall be personally endorsed by the heads of such agencies and shall particularly describe therein the places to be searched and/ or the property or things to be seized as prescribed in the Rules of Court. The Executive Judges and the Vice-Exceutive Judges concerned shall issue the warrants if justified, which may be served outside the territorial jurisdiction of said courts (Sps. Marimla v. People, G.R. No. 158467, October 16, 2009). !Q: Barney filed a complaint with the NBI against Ted alleging that the latter was engaged in the reproduction and distribution of counterfeit products originally produced by Barney. Said products, allegedly, was produced in Cavite but sold in Manila. Thus, NBI applied with the RTC of Manila for warrants to search Ted’s premises in Cavite. The RTC of Manila issued a search warrant covering Ted’s premises at Cavite. The NBI served the search warrants on Ted’s premises and seized the said counterfeit products. Thereafter, Ted filed a motion to quash the search warrant questioning the propriety of the venue where the warrant was enforced. Should the motion to quash be granted? !A: No. As a general rule, search warrants issued by courts may be effectuated only within their territorial jurisdiction. Thus, the RTC of Manila does not have the authority to issue a search warrant for offenses committed in Cavite. Nonetheless, this case involves a transitory or continuing offense of unfair competition. !
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Ted’s imitation of the general appearance of Barney’s goods was done allegedly in Cavite. It sold the goods allegedly in Metro Manila. The alleged acts would constitute a transitory or continuing offense. Thus, clearly, under Sec. 2 (b), Rule 126; Sec. 168, R.A. 8293 and Art. 189 (1), RPC, Barney may apply for a search warrant in any court where any element of the alleged offense was committed, including any of the courts within the NCR (Sony Computer Entertainment, Inc. v. Supergreen, Inc., G.R. No. 161823, March 22, 2007). !Requisites before a search warrant may be issued !1. It must be issued upon probable cause; 2. Probable cause must be determined by the issuing judge personally; 3. The judge must have personally examined, in the form of searching questions
and answers, the applicant and his witnesses; 4. The search warrant must particularly describe or identify the property to be
seized as far as the circumstances will ordinarily allow; 5. The warrant issued must particularly describe the place to be searched and
the persons or things to be seized; 6. It must be in connection with one specific offense; 7. The sworn statements together with the affidavits submitted by witnesses
must be attached to the record (Prudente v. Dayrit, G.R. No. 82870, December 14, 1989). !
NOTE: The warrant must not have been issued more than 10 days prior to the search made pursuant thereto. !
PROBABLE CAUSE
!Probable cause !It refers to the facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched (Burgos v. Chief of Staff, G.R. No. L-65334, December 26, 1984). !Basis of probable cause !The basis must be the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. The test of sufficiency of a deposition or affidavit is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. !Mere affidavits of the complainant and his witnesses are not sufficient. The judge has to take the depositions of the complainant and the witnesses in
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writing and attach them to the record (Mata v. Bayona, G.R. No. L-50720, March 26, 1984). !Factors to consider for the determination of probable cause
1. Time of the application in relation to the alleged offense committed. The nearer the time at which the observation of the offense is alleged to have been made, the more reasonable the conclusion of establishment of probable cause(Asian Surety Insurance v. Herrera, G.R. No. L-25232, December 20, 1973).
2. There must be competent proof of particular acts or specific omissions but only the best evidence under the circumstances is required(People v. Judge Estrada, G.R. No. 124461, September 26, 1998). !
Requirement of Multi-factor Balancing test in determining probable cause !It requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed, and the circumstances attending the incident. !Q: Does the absence of probable cause on a particular article invalidate the entire search warrant? !A: No. Such particular article may be severed from the rest of the search warrant, provided that the remaining parts meet the requirements of probable cause and particularity. !
PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESS
!Requisites of “Personal Examination by the Judge” !1. The judge must examine the witness personally; 2. The examination must be under oath; 3. The examination must be reduced to writing in the form of searching
questions and answers (Marinas v. Siochi, G.R. Nos. L-25707 & 25753-25754, May 14, 1981);
4. It must be probing and exhaustive, not merely routinary or pro forma(Roan v. Gonzales, G.R. No. 71410, November 25, 1986); and
5. It is done ex-parte and may even be held in the secrecy of chambers (Mata v. Bayona, G.R. No. L-50720, March 26, 1984). !
Form of search warrant !
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The search warrant must be in writing and must contain such particulars as the name of the person against whom it is directed, the offense for which it was issued, the place to be searched and specific things to be seized. !NOTE: The warrant must name the person upon whom it is to be served except in those cases where it contains a descriptio personae such as will enable the officer to identify the person. The description must be sufficient to indicate clearly the proper person upon whom it is to be served (People v. Veloso, G.R. No. L-23051, October 20, 1925). !Lifetime of a search warrant !A warrant is valid for 10 days from the date of its issue. After such time, it is void (Sec. 10). A search warrant can be used only once, thereafter it becomes functus oficio, except when the search conducted on one day was interrupted, in which case the same may be continued under the same warrant the following day if not beyond the 10 day period. !Rule with respect to the time of making a search !GR: A search warrant must be served at day time. !XPN: A search warrant may be made at night when it is positively asserted in the affidavit that the property is on the person or in the place ordered to be searched. The affidavit making such assertion must itself be sufficient as to the fact so asserted, for if the same is based upon hearsay, the general rule shall apply. A search warrant conducted at night without direction to that effect is an unlawful search. The same rule applies where the warrant left blank the “time” for making the search. !Q: May the implementation of the search warrant be done on different days? !A: Yes. It could be served at any time within its 10-day lifetime, and if its object or purpose cannot be accomplished in one day, the same may not be used for a different purpose on each day. After the articles for which the warrant was issued have been seized, the same warrant cannot be utilized as authority to make another search (Gorospe, 2006, citing Uy Kheytin v. Villareal 42 Phil. 886). !The time must not be one which is intrusive or violative of one’s privacy, like at the middle of the night. Then, too, depending on the locality, what may be reasonable time in one place would not be so in some other cases (Gorospe, 2006). !Q: What is a reasonable time to effect a search? !A: 7:30 P.M. is a reasonable time for executing a search warrant in the metropolis. The exact time of the execution of a warrant should be left to the
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discretion of the law enforcement officers. And in judging the conduct of said officers, judicial notice may be taken not just of the realities of law enforcement, but also the prevailing conditions in the place to be searched. We take judicial notice that 7:30 P.M. in a suburban subdivision in Metro Manila is an hour at which the residents are still up-and-about. To hold said hour as an unreasonable time to serve a warrant would not only hamper law enforcement, but could also lead to absurd results, enabling criminals to conceal their illegal activities by pursuing such activities only at night (Ibid). !“Knock and announce” principle !It states that officers implementing a search warrant must announce their presence, identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched, and show to them the search warrant to be implemented by them and explain to them said warrant in a language or dialect known to and understood by them. The requirement is not a mere procedural formality but is of the essence of the substantial provision which safeguards individual liberty. !NOTE: A lawful entry is the indispensable predicate of a reasonable search. A search would violate the constitutional guarantee against unreasonable search and seizure if the entry was illegal, whether accomplished by force, or by threat or show of force or obtained by stealth, or coercion. !Instances when an unannounced intrusion into the premises is permissible !When: 1. A party whose premises or is entitled to the possession thereof refuses, upon
demand, to open it; 2. Such person in the premises already knew of the identity of the officers and
of their authority and persons; 3. The officers are justified in the honest belief that there is an imminent peril
to life or limb; or 4. Those in the premises, aware of the presence of someone outside, are then
engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted. !
NOTE: The exceptions above are not exclusive or conclusive. There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances (People v. Huang Zhen Hua, G.R. No. 139301, September 29, 2004). !Rules to be observed in case of search of a house or room !In order to insure that the execution of the warrant will be fair and reasonable, and in order to insure that the officer conducting the search shall not exceed his authority or use unnecessary severity in executing the search warrant, as well as
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for the officer’s own protection against unjust accusations, it is required that the search be conducted in the presence of the: 1. Lawful occupant of the place to be searched; 2. Any member of his family; 3. In their absence, in the presence of 2 witnesses of sufficient age and
discretion residing in the same locality (Sec. 8, Rule126). !NOTE: A public officer or employee who exceeds his authority or uses unnecessary severity in executing the warrant is liable under Art. 129, RPC. !
PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO BE SEIZED !Tests to determine particularity of the place to be searched
!1. When the description therein is as specific as the ordinary circumstance will
allow (People v. Rubio, GR No L-35500, October 27, 1932);
2. When the description express a conclusion of fact, not of law which the warrant officer may be guided in making the search and seizure;
3. When the things described therein are limited to those which bear direct relation to the offense for which the warrant is being issued.
!Importance of describing with particularity the place to be searched and the persons or things to be seized
!The purpose of the rule is to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that “unreasonable searches and seizures” may not be made that abuses may not be committed (Stonehill v. Diokno, G.R. No. L-19550, June 19, 1967).
! PERSONAL PROPERTY TO BE SEIZED
!Kinds of personal properties subject to seizure !1. Subject of the offense; 2. Stolen or embezzled and other proceeds or fruits of the offense; and 3. Used or intended to be used as the means of committing an offense (Sec. 3,
Rule126). !!
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NOTE: It is not required that the property to be seized should be owned by the person against whom the search warrant is directed. It is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized (Burgos v. Chief of Staff, G.R. No. L-65332, December 26, 1984). !Objects subject to seizure during a search incidental to an arrest of a person even without a search warrant !1. Dangerous weapons; and 2. Anything which may be used as proof of the commission of an offense. !
EXCEPTIONS TO SEARCH WARRANT REQUIREMENT !Instances of a valid warrantless search !1. Search incident to lawful arrest – This includes searching the person who is
arrested, in order to find and seize the things connected with the crime as fruits or as the means by which it was committed. !NOTE: Search made without warrant cannot be justified as an incident of arrest unless the arrest itself was lawful. !Immediate control test – A search incidental to a lawful warrantless arrest may extend beyond the person where the exigencies of the situation justify a warrantless search for dangerous weapons and to prevent the arrestee from destroying evidence of the crime within reach (People v. Musa, G.R. No. 95329, January 27, 1993). !
2. Consented search (waiver of right) – Consent cannot be presumed simply because the accused failed to object to the search. To constitute a waiver, the following requisites must concur: !a. The right exists; b. The person involved had knowledge, actual or constructive, of the
existence of such rights; and c. Actual intention to relinquish such rights (People v. Burgos, G.R. No.
92739, August 2, 1991). !3. Search of moving vehicle – May validly be made without a search warrant
because the vessel or aircraft can quickly move out of the jurisdiction before such warrant could be secured (People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991). !
4. Checkpoints; body checks in airport – Searches conducted in checkpoints are valid for as long as they are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the
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inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search (People v. Vinecario, G.R. No. 141137, January 20, 2004). !In body checks in airports, passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures (People v. Johnson, G.R. No. 138881, December 18, 2000). !
5. Plain view doctrine– It authorizes a search and a seizure without a warrant. For the doctrine to apply, the following requisites must be met: !a. There must have been a legal presence in the place where the search is
made; b. The evidence was discovered inadvertently by an officer with a right to be
where he is; c. The evidence is immediately apparently illegal; and d. There is no need for any further search to obtain the evidence (People v.
Concepcion, 361 SCRA 540; People v. Sarap, 399 SCRA 503; People v. Go; 411 SCRA 81). !
6. Stop and frisk situations – This is a limited protective search of the outer clothing of a person to determine the presence of weapons. Probable cause is not required but a genuine reason (not mere suspicion) must exist, in the light of the officer’s experience and surrounding circumstances, to warrant the belief that the persons has concealed weapons (Malacat v. Court of Appeals, 283 SCRA 159). Its object is either to: !a. Determine the identity of a suspicious individual; or b. Maintain the status quo momentarily while the police officer seeks to
obtain more information. !NOTE: The officer may search the outer clothing of the person in an attempt to discover weapons which might be used to assault him (Manalili v. CA, G.R. No. 113447, October 9, 1997). !
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7. Enforcement of custom laws !Q: The search warrant authorized the seizure of “undetermined quantity of shabu”. During the service of the search warrant, the raiding team also recovered a kilo of dried marijuana leaves wrapped in newsprint. The accused moved to suppress the marijuana leaves as evidence for the violation of Sec. 11 of the Comprehensive Dangerous Drugs Act of 2002 since they were not covered by the search warrant. The State justified the seizure of the marijuana leaves under the “plain view” doctrine. There was no indication of whether the marijuana leaves were discovered and seized before or after the seizure of the shabu. If you are the judge, how would you rule the motion to suppress? (2008 Bar Question) !A: It should be granted. The search warrant violates the constitutional and statutory requirement that should particularly describe the person or things to be seized (Sec. 2, Art. III, 1987 Constitution; Sec. 2, Rule 126). The “plain view” doctrine cannot be invoked because the marijuana leaves were wrapped in newsprint. Besides the marijuana leaves are not the subject of the search warrant. There was no evidence as to whether the marijuana leaves were discovered and seized before or after the seizure of the shabu. If they were discovered after the seizure of the shabu, then they could not have been seized in plain view. The confiscation of the marijuana leaves must not be upheld, hence rendering the same inadmissible in evidence against the accused. !
REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE
!Parties who may question the validity of search and seizure !It can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed by third parties (Stonehill v. Diokno, G.R. L-19550, June 19, 1967). !Remedies against an unlawful search !1. Motion to quash the search warrant; 2. Motion to suppress as evidence the objects illegally taken (exclusionary rule –
any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding);
3. Replevin, if the objects are legally possessed; and 4. Certiorari, where the search warrant is a patent nullity. !NOTE: The remedies are alternative. If a motion to quash is denied, a motion to suppress cannot be availed consequently. The illegality of the search warrant does not call for the return of the things seized, the possession of which is prohibited by law.
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However, those personalties seized in violation of the constitutional immunity whose possession is not illegal or unlawful per se ought to be returned to their rightful owner or possessor. !Venue of filing a motion to quash search warrant !1. It may be filed and acted upon only by the court where the action has been
instituted; 2. If no criminal action has been instituted, it may be filed in and resolved by
the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court (Sec. 14, Rule 126). !
Rule with respect to waiver of legality and admissibility of a search warrant !Objection to the legality of the search warrant, or as to the admissibility of the evidence obtained is deemed waived where no objection of the search warrant was raised during the trial of the case nor to the admissibility of the evidence obtained through said warrant (Demaisip v. CA, G.R. No. 89393, January 25, 1991). !
PROVISIONAL REMEDIES IN CRIMINAL CASES RULE 127 !NATURE !
Provisional Remedies !They are those to which parties may resort for the preservation or protection of their rights or interests and for no other purposes during the pendency of the action. They are applied to a pending litigation for the purpose of securing the judgment or preserving the status quo; and in some cases after judgment, for the purpose of preserving or disposing of the subject matter(Cala v. Roldan, G.R. No. L-252, March 30, 1946). !
KINDS OF PROVISIONAL REMEDIES
!Kinds of Provisional Remedies available in criminal cases !1. Attachment (Rule 57); 2. Preliminary injunction (Sec. 58); 3. Receivership (Rule 59); 4. Delivery of personal property (Rule 60); 5. Support pendente lite (Rule 61). !
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Attachment !It is a remedy afforded to the offended party to have the property of the accused attached as security for satisfaction of any judgment that may be recovered from the accused. !Party who may apply for attachment !The aggrieved party in whose behalf the civil aspect of the criminal action is prosecuted may apply for the issuance of a writ of preliminary attachment, he being the person primarily and directly interested thereby. The prosecutor in the criminal action may make such an application in behalf of or for the protection of the interest of the offended party. !Cases wherein attachment is made available !1. When the accused is about to abscond from the Philippines 2. When the criminal action is based on a claim for money or property
embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, or any officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any person in a fiduciary capacity, or for a willful violation of a duty;
3. When the accused has concealed, removed or disposed of his property or is about to do so;
4. When the accused resides outside the Philippines (Sec. 2, Rule127). !
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