Procedures in Criminal Law

8/11/2019 Procedures in Criminal Law

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Representation By A Non-Lawyer

CAN A NON-LAWYER REPRESENT THE ACCUSED

DURING ARRAIGNENT!

> No, during the arraignment, it is the obligation of the

court to ensure that the accused is represented by a lawyer

because it is the first time when the accused is informed

of the nature and cause of the accusation against him.

> This is a task which only a lawyer can do.

> But during trial, there is no such duty. The accused must

ask for a lawyer, or else, the right is deemed waived. He

can even defend himself personally.

AY AN ACCUSED BE "ALIDLY REPRESENTED BY A

NON-LAWYER AT THE TRIAL!

> If the accused knowingly engaged the service of the non-

lawyer, he is bound by the non-lawyers actions

> But if he didnt know that he was represented by a

non-laywer, the judgment is void because of the

misrepresentation

N.B: In MTCs, one can defend himself or by a non-lawyer.

WHAT ARE THE CONSE#UENCES I$ REPRESENTED

BY A NON-LAWYER!

1. He is bound by the rules

2. He cannot raise right to counsel

SUPPOSE % DE$ENDS HISEL$& IS THIS CONSIDERED A

PRACTICE O$ LAW UNDER THE DOCTRINE IN CAYETANO

"& ONSOD!

> No, this is an exercise of a constitutional right.

WHAT IS THE DI$$ERENCE BETWEEN THE DUTY O$ THE

COURT TO APPOINT COUNSEL DE O$$ICIO

DURING ARRAIGNENT AND DURING TRIAL!

> During arraignment, the court has the affirmative duty toinform the accused of his right to counsel and to provide him

with one in case he cannot afford it

> The court must act on its own volition unless the right is

waived by the accused

> On the other hand, during trial, it is the accused who must

asser this right to counsel. The court will not act unless

the accused invokes his rights.

Co'nse( De O))i*io

Sec. 7. Appointment of counsel de officio. The court,

considering the gravity of the offense and the difficulty ofthe questions that may arise, shall appoint as counsel de

officio such members of the bar in good standing who, by

reason of their experience and ability, can competently

defend the accused. But in localities where such members

of the bar are not available, the court may appoint any

person, resident of the province and of good repute for probity

and ability, to defend the accused.

Sec. 8. Time for counsel de officio to prepare for

arraignment. Whenever a counsel de office is appointed by

the court to defend he accused at the arraignment, he shall be

given a reasonable time to consult with the accused as to his

plea before proceeding with the arraignment.

WHAT IS A COUNSEL DE O$$ICIO!

> A counsel de officio is the counsel appointed by the

court to represent and defend the accused in case he

cannot afford to employ one himself

WHO CAN BE APPOINTED COUNSEL DE O$$ICIO!

> The court, considering the gravity of the offense and the

difficulty of the questions that may arise shall appoint as

counsel de officio

1. A member of the bar in good standing

2. And such member, by reason of his/her experience

and ability, can competently defend the accused

> ONLY DURING TRIAL: But, in localities where such

members of the bar are not available, the court may appoint

any person who

is

1. A resident of the province

2. And of good repute for probity and with ability to defend the

accused

THE $OUR-$OLD DUTY O$ THE COURT

1. It must inform the defendant that he has a right

to an attorney before being arraigned

2. After informing him, the court must ask the

defendant if he desires to have the aid of an attorney

3. If he desires and is unable to employ an attorney, the

court must assign an attorney de officio to defend him

4. If the accused desires to procure an attorney of his

own, the court must grant him a reasonable time to

procure one

WHAT IS THE REASON $OR THE $OUR-$OLD DUTY!

> The right to be heard would be of little avail if it doesnt

include the right to be heard by counsel

WHAT IS THE E$$ECT O$ THE $AILURE O$ THE COURT

TO COPLY WITH THESE DUTIES!

> It is a violation of due process

Withdrawal Of Improvident Plea Of

Guilty

Sec. 5. Withdrawal of improvident plea of

guilty. At any time before the udgment of


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conviction become! "nal# the court may

permit an improvident plea of guilty to be

withdrawn and be !ub!tituted by a plea of not

guilty.

NOTE: The tenor of above provision is clear.

There should be a categorical declaration from the

accused that he is withdrawing his plea of guilty and

substituting it with a plea of not guilty.

$A% A% I&P'O(I)*%+ P,*A O- GI,+/ 0*

WI+1)'AW% AS A &A++*' O- 'IG1+2

> No, the withdrawal of the plea of guilty is

not a matter of strict right to the accused but is

within the discretion of the court.

> The reason behind this is that trial has

already commenced and will put all of the past

proceedings to waste. Therefore, the plea may only be

withdrawn with permission of the court.

> Moreover, there is presumption that the

plea was made voluntarily. The court must

decide whether the consent of the accused was in

fact vitiated when he entered his plea.

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GI,+/# 0+ +*,,S +1* 4)G* 1I%)I %I/A

SI%ASA)/A. IS 1IS P,*A (A,I)2

> No. n order to be valid, the plea of guilty must be

unconditional.

> n this case, ! said hindi niya sinasadya. This is

not a valid plea of guilty. " plea of not guilty should be

entered instead.

&A/ A% A$$S*) 0* A,,OW*) +O $1A%G*

1IS P,*A O- %O+ GI,+/ *(*% A-+*' +1*

P'OS*$+IO% 1A) '*S+*) I+S $AS*2

> The trial court may allow the accused to plead

guilty to a lesser o#ense

W1*% $A% +1* (A,I)I+/ O- P,*A O- GI,+/ 0*

A++A$*)2

> $enerally, a plea of guilty cannot be attac%ed

if it is made voluntarily and intelligently

> t can only be attac%ed if it was induced

by threats, misrepresentation, or bribes

> &hen the consensual character of the plea is

called into 'uestion or when it is shown that the

defendant was not fully apprised of the conse'uences,

the plea can be challenged

Plea Of Guilty +o %on $apital O6en!e

(ec. ). *lea of guilty to non+capital o#ense reception of

evidence, discretionary. - &hen the accused pleads

guilty to a non+capital o#ense, the court may

receive evidence from the parties to determine the

penalty to be imposed.

W1A+ S1O,) +1* $O'+ )O W1*% +1*

A$$S*) P,*A)S GI,+/ +O A %O%7$API+A,

O--*%S*2

> The court may receive evidence from the parties

to determine the penalty to be imposed

> nli%e in a plea of guilty to a capital o#ense,

the reception of evidence in this case is not

mandatory

> t is merely discretionary on the court

$A% A $O'+ (A,I),/ $O%(I$+ A% A$$S*)

0AS*) O% A% I&P'O(I)*%+ P,*A O- GI,+/2

8 /e!

8 If there i! ade9uate evidence of the

guilt of the accu!ed independent of the

improvident plea of guilty# the court may !till

convict the accu!ed

8 +he conviction will be !et a!ide only if the

plea of guilt i! the !ole ba!i! of the udgment

W1A+ IS +1* &*A%I%G O- +1* )+/ O- +1*

4)G* +O $O%)$+ A S*A'$1I%G I%:I'/2

8 In all ca!e!# the udge mu!t convince

him!elf

;. +hat the accu!ed i! entering the plea of

guilty voluntarily and intelligently

i!t! a rational ba!i! for a

"nding of guilt ba!ed on hi! te!timony

8 In addition# the udge mu!t inform the

accu!ed of the e>act length of impri!onment

and the certainty that he will !erve it at the

national penitentiary or a penal colony. +he

udge mu!t di!pel any fal!e notion that the

accu!ed may have that he will get o6 lightly

becau!e of hi! plea of guilty

)O*S A P,*A O- GI,+/ &*A% A% A)&ISSIO%

*(*% O- +1* AGG'A(A+I%G $I'$&S+A%$*S2

> /es

> " plea of guilty results in the admission of all the

material facts in the complaint or information,

including the aggravating circumstances

> t is tantamount to a 0udicial confession of guilt

> 1ecause of this, the court should only accept a

clear, de2nite, and unconditional plea of guilt

Plea Of Guilty +o $apital O6en!e

Sec. =. Plea of guilty to capital o6en!e?

reception of evidence. When the accu!ed

plead! guilty to a capital o6en!e# the court !hall

conduct a !earching in9uiry into the

voluntarine!! and full comprehen!ion of the

con!e9uence! of hi! plea and !hall re9uire

the pro!ecution to prove hi! guilt and the

preci!e degree of culpability. +he accu!ed may

pre!ent evidence in hi! behalf.

W1A+ S1O,) +1* $O'+ )O W1*% +1*

A$$S*) P,*A)S GI,+/ +O A $API+A,

O--*%S*2


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> &hen the accused pleads guilty to a capital

o#ense, the court should

3. 4onduct a searching in'uiry into the

voluntariness and full comprehension of the

conse'uences of the plea

5. 6e'uire the prosecution to present evidence to

prove the guilt and the precise degree of culpability of

the accused for the purpose of imposing the proper

penalty7. "s% the accused if he desires to present evidence

in his behalf and allow him to do so if he desires

> Mandatory for the court to conduct the

searching in'uiry otherwise, there would be an

improvident plea

Plea Of Guilty +o A ,e!!er O6en!e

Sec. The time of pendency of a motion to 'uash or a bill

of particulars or other cause 0ustifying suspension of

the arraignment shall be e@cluded in computing the

period.

>


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5. (ubstantial amendment needs

rearraignment but formal amendment doesnBt

P'*S*%$* O- O--*%)*) PA'+/

3. *lea bargaining

5. 4ivil liability

7. denti2cation of accused

W1A+ I- P'I(A+* O--*%)*) PA'+/ -AI,*) +O

A++*%) )*SPI+* )* %O+I$*2

> The accused may be allowed by the court to plea

guilty to a lesser o#ense which is necessarily included

in the o#ense charged with the conformity of the

prosecutor alone

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P,*A -O' 1I&2

> No, the accused must enter the plea himself

W1A+ IS +1* I&PO'+A%$* O- A''AIG%&*%+2

> "rraignment is the means for bringing the accused

into court and informing him of the nature and cause

of the accusation against

him.

> 9uring arraignment, he is made fully aware of

possible loss of freedom or of life. No, the 0udge has no obligation to point out that an

information is duplicitous or to point out any other

defect in an information during arraignment

> The obligation to move to 'uash a defective

information belongs to the accused, whose failure to do

so constitutes a waiver of the right to ob0ect

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0**% A''AIG%*). A+ +1* +'IA,# 3DS $O%S*,

P'*S*%+*) WI+%*SS*S A%) $'OSS7*3A&I%*)

+1* P'OS*$+IO% WI+%*SS*S. I+ WAS O%,/

A-+*' +1* $AS* WAS S0&I++*) -O'

)*$ISIO% +1A+ 3 WAS A''AIG%*). 3 WAS

$O%(I$+*). $A% 3 I%(O* +1* -AI,'* O- +1*

$O'+ +O A''AIG% 1I& 0*-O'* +'IA, -O'

:*S+IO%I%G +1* $O%(I$+IO%2

> No, the failure of the court to arraign ! before trial

was conducted didnBt pre0udice the rights of !

since he was able to present evidence and cross+

e@amine the witnesses of the prosecution

> The error was cured by the subse'uent

arraignment

IS +1* A$$S*) P'*S&*) +O 1A(* 0**%A''AIG%*) I% +1* A0S*%$* O- P'OO- +O +1*

$O%+'A'/2

> /es

> n view of the presumption of regularity in

the performance of oDcial duties, it can be

presumed that a person accused of a crime was

arraigned, in the absence of proof to the contrary

> &hen the life of a person is at sta%e, thecourt cannot presume that there was an

arraignment, it has to be sure that there was one

IS +1* A$$S*) *%+I+,*) +O %OW I% A)(A%$*

+1* %A&*S O- A,, P'OS*$+IO% WI+%*SS*S2

> nder the same amended rules on pre+trial, this

would be up to the trial 0udgeBs discretion

3 WAS $1A'G*) WI+1 1O&I$I)*. 1*

*%+*'*) A P,*A O- %O+ GI,+/. 1* WAS

,A+*' A,,OW*) +O +*S+I-/ I% O')*' +O

P'O(* +1* &I+IGA+I%G $I'$&S+A%$* O-

I%$O&P,*+* S*,-7)*-*%S*. A+ +1* +'IA,#1* P'*S*%+*) *(I)*%$* +O P'O(* +1A+

1* A$+*) I% $O&P,*+* S*,- )*-*%S*.

+1* $O'+ A$:I++*) 1I&. ,A+*'# 3 WAS

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I%(O*) )O0,* 4*OPA')/. $A% 3 0*

P'OS*$+*) AGAI% -O' P1/SI$A, I%4'I*S2

> /es. There was no double 0eopardy. n order for

double 0eopardy to attach, there must have been a

valid plea to the 2rst o#ense.

> n this case, the presentation by ! of

evidence to prove self+defense had the e#ect of

vacating the plea of guilt

> &hen the plea of guilt was vacated, the courtshould have ordered him to plead again, or at least

should have directed that a new plea of not guilty be

entered for him

> 1ecause the court didnBt do this, at the time of the

ac'uittal, there was actually no standing plea for !.

> (ince there was no valid plea, there can be no

double 0eopardy

$A% A P*'SO% W1O P,*A)*) GI,+/ S+I,, 0*

A$:I++*)2

> /es, when an accused pleads guilty, it doesnBt

necessarily follow that he is convicted

> "dditional evidence independent of the guiltyplea may be considered by the 0udge to ensure

that the plea of guilt was intelligently made

> The totality of evidence should determine

whether the accused should be convicted or ac'uitted

W1A+ 1APP*%S I- +1* A$$S*) '*-S*S +O

*%+*' A%/ P,*A2

> The court may validly enter a plea of guilty for the

accused who refuses to plead

W1A+ IS A% I&P'O(I)*%+ P,*A2

> *lea involuntarily made and without consent

> t would be considered if there was failure to

conduct searching in'uiry, failure of prosecution to


5/21

present evidence, no rational basis between

testimony and guilt

'IG1+ +O 0* P'*S*%+ I% +'IA,

W1A+ A'* +1* '*:ISI+*S O- A (A,I) +'IA, I%

A0S*%+IA2

3. The accused has been already arraigned

5. The right means that the presumption must be

overcome by evidence of guilt beyond reasonable

doubt

3. $uilt beyond reasonable doubt means that

there is moral certainty as to the guilt of the accused

5. "ccusation is not synonymous to guiltconviction

should then be based on the strength of the evidence

of the prosecution and not the wea%ness of the

defense

W1A+ IS +1* 'A+IO%A,* -O' +1* P'*S&P+IO%

O- I%%O$*%$*2

> There ought to be a balance between the

machineries of the (tate and the accused

W1A+ A'* +1* *3$*P+IO%S +O +1*

$O%S+I++IO%A, P'*S&P+IO% O- I%%O$*%$*2

3. f there is a 6E"(ON"18E 4ONNE4TON

between the fact presumed and the fact ultimately

proven from such fact. ;or e@ample, an

accountable public oDcer who fails to account for

funds or property that should be in his custody is

presumed to be guilty of malversation of public

funds or that persons in possession of recently

stolen goods are presumed guilty of the

o#ense in connection with the goods

5. n cases of (E8;+9E;EN(E, the person who

invo%es the self+defense is presumed guilty. The

burden of proving the elements of self+defense is

incumbent upon the accused.

0ail

-orfeiture Of 0ail

(ec. 53. ;orfeiture of bail. - &hen the presence of the

accused is re'uired by the court or these 6ules, his

bondsmen shall be noti2ed to produce him before

the court on a given date and time. f the

accused fails to appear in person as re'uired, his

bail shall be declared forfeited and the bondsmen

given thirty F7?G days within which to produce their

principal and to show why no 0udgment should be

rendered against them for the amount of their bail.

&ithin the said period, the bondsmen must:

FaG produce the body of their principal or give the

reason for his non+production and

FbG e@plain why the accused did not appear before the

court when 2rst re'uired to do so.

;ailing in these two re'uisites, a 0udgment shall

be rendered against the bondsmen, 0ointly and

severally, for the amount of the bail. The court shall notreduce or otherwise mitigate the liability of the

bondsmen, unless the accused has been

surrendered or is ac'uitted.

W1A+ )O 0O%)S&*% %)*'+A* +O )O %)*'

+1* 0O%)2

> &hen the appearance of the accused is re'uired,

the sureties shall be noti2ed to produce the

accused before the court on a given date

> f the accused fails to appear as re'uired, the

bond is declared forfeited and the bondsmen are

given 7? days within which to produce the accused

and show cause why 0udgment shouldnHt be renderedagainst them for the amount of the bond

> &ithin the period of 7? days, the bondsmen must:

3. *roduce the body of the accused

5. E@plain satisfactorily why the accused didnHt

appear when 2rst re'uired to do so

o f they fail to comply with these re'uisites, the

court shall render 0udgment against them on the bond.

W1A+ IS +1* *--*$+ O- ASS&I%G +1*

O0,IGA+IO% O- 0AI,2

> The sureties become in law the 0ailers of the

principal

> Their custody of him is the continuationof the original imprisonment and though they cannot

actually con2ne him, they are subrogated to all

other rights and means which the

government possesses to ma%e their control of him

e#ective when the accused 0umps bail and the trial

shall continue and the bondsman held to their

underta%ing and sureties

%)*' W1OS* )IS$'*+IO% IS +1* '*)$+IO%

O- +1* ,IA0I,I+/ O- A 0O%)S&A% %)*' +1*

-O'-*I+*) 0O%)2

> t is wholly sub0ect to the discretion of the trial

court> To be refused or granted according to the merits of

the particular case before the court, and the e@ercise of

such discretion will not be disturbed on appeal


6/21

unless grave abuse of discretion was

committed or that there are circumstances which

the trial court failed to consider

W1A+ IS +1* )+/ O- +1* 0O%)S&A%

W1*% A$$S*) IS '*:I'*) +O APP*A'2

> Notice alone to the accused is insuDcient.

> The bondsman is duty bound to produce the

person of the accused when his appearance is

re'uired by the court, which shows that mere notice

is not suDcient but the bondsman must ma%e every

e#ort to see that he actually ma%es his appearance

> ;ailure to do so, trial court may consider it

negligent in the performance of his duties which the

(4 cannot disturb

W1A+ A'* +1* '*:ISI+*S +O 4S+I-/ +1*

0O%)S&A%DS *3*&P+IO% -'O& ,IA0I,I+/2

> &ithin the period of 7? days, the bondsmen must:

3. *roduce the body of the accused

5. E@plain satisfactorily why the accused didnHt

appear when

2rst re'uired to do so

> ;ailure of the bondsman to produce the accused

when re'uired by the court and subse'uent

presentment will not e@onerate the bondsmanBs

liability unless he gives satisfactory reason why he

failred to appear when 2rst re'uired to do so

> ("T(;"4TO6/ E!*8"N"TONact of $od, act of

the obligee, act of the law e@onerates the sureties. f

the accused died, the fact of death must be before

the breach and the fact of death must be

established by competent evidence for the

sureties to be e@onerated from liability.

WHAT ARE THE CONDITIONS O$THE BAIL!

1. If before conviction, that the defendant shall answer the

complaint or information in the court in which it is filed or to

which it may be transferred for trial

2. After conviction, that he will surrender himself in execution

of the judgment that the appellate court may render

3. That in case the cause is remanded for new trial, he will

appear in court to which it may be remanded and submit

himself to the orders and processes thereof

*For failure to perform any of these conditions, the bond given

as security thereof may be forfeited.

CAN THE COURT IPOSEOTHER CONDITIONS ORLIITATIONS ON THE BAIL!

> Yes, the trial court may impose other conditions in

granting bail where the likelihood of the accused jumping bail

or of committing other harm to the citizenry is feared.

> The court even has the power to prohibit a person admitted

to bail from leaving the Phiippines or restrict his right to travel

DOES AN ADDITIONALCONDITION NOT "IOLATE

THE PROHIBITION ONE%CESSI"E BAIL!

> No because the determination if there is excessive

bail would depend on the facts and circumstances of each

case

> Bail would still be determined based on the following

factors--financial liability of the accused to give bail;nature and circumstance of the offense; penalty for the

offense charged; character and reputation of the accused;

age and health of the accused; weight of the evidence

against the accused; probability of the accused appearing at

the trial; forfeiture of other bail; the fact that the accused was

a fugitive from justice when arrested; and pendency of other

cases where the accused is on bail.

REEDIES O$ A PARTYAGAINST WHO AWARRANT O$ ARRESTHAS BEEN ISSUED

+ A party a,ainst wo. a warrant o)arrest as /een iss'e0 .ay1& Post /ai(2& As3 )or rein4esti,ation5& $i(e a .otion to 6'asin)or.ation7& $i(e a petition )or re4iew8& I) 0enie09 e .ay appea(te :'0,.ent a)ter tria( ;no

*ertiorari PAPI

NO PRELIINARYIN"ESTIGATIONCONDUCTED9REEDIES

I$ THERE WAS NOPRELIINARY

IN"ESTIGATIONCONDUCTED9 WHAT IS THEREEDY O$ THE ACCUSED!


7/21

=Co0e> RICA P

1& Re)'se to enter p(ea

2& Insist on a pre(i.inary in4esti,ation

5& $i(e *ertiorari i) re)'se0

7& Raise it as an error on appea(8& $i(e a petition )or proi/ition

DOUBLE ?EOPARDY

To s'/stantiate a *(ai. o) 0o'/(e:eopar0y9 te )o((owin, .'st/e pro4en>

a. The first jeopardy must have attached prior to the second

b. The first jeopardy must have been validly terminated

c. The second jeopardy must be for the same offense, or the

second offense includes or is necessarily included in the

offense charged in the first information, or is an attempt to

commit the same or is a frustration thereof

WHEN DOES DOUBLE?EOPARDY ATTACH!

> In order that protection against double jeopardy may inure in

favor of the accused, the following should be present:

a. A valid complaint or information

b. A competent court

c. The defendant pleaded to the charge

d. The defendant was acquitted or convicted, or the case

against him was dismissed or otherwise terminated without his

express consent

W1A+ IS +1* S$OP* O- +1* 'IG1+ AGAI%S+

S*,-7I%$'I&I%A+IO%2

> The right against self+incrimination covers testimonial

compulsion only and the compulsion to produce

real or physical evidence using the body of the

accused

> *hysical or moral compulsion to e@tort

communication

WI+1 W1A+ I%) O- +*S+I&O%/ O' I%S+A%$*S

$A% +1* 'IG1+ 0* I%(O*)2

> t applies to commutative testimony and not

mechanical testimony

> 4ommutative testimony involves the use of

intelligence on the part of the accused or

witness. 4orrorarily, on cases on self+incrimination,

the following are permissiblesubstance from the

body, morphine from mouth, put on pants, physical

e@am, wallet, picture ta%ing, etc. The following on

the other hand are not permissiblehandwriting,

signature, and similar incidents whichinvolve the use of intelligence.

SPPOS* +1A+ +1*'* IS A 1O,* I% A )OO'

+O W1I$1 I- I+ IS -O%) O+ +1A+ +1* 1A%)

O- +1* A$$S*) -I+S +1* 1O,*# 1* IS &OS+

P'O0A0,* GI,+/ O- +1* A$$SA+IO%. $A% 1*

I%(O* +1* 'IG1+ AGAI%S+ S*,-7

I%$'I&I%A+IO%2

> No, what is being as%ed of him is mechanical in

nature. The inserting of his hand into the hole will not

involve intelligence on his part to ful2ll the tas%.

IS +1*'* A% *3$*P+IO% +O +1* 'IG1+ AGAI%S+

S*,-7I%$'I&I%A+IO%2

> The right cannot be invo%ed when the (tate has

the rights to inspect documents under its police

power, such as documents of corporations.

O% W1A+ I%) O- P'O$**)I%GS $A% +1* 'IG1+

AGAI%S+ S*,-7I%$'I&I%A+IO% 0* I%(O*)2

> The right against self+incrimination can be invo%ed in

all proceedings instituted by the government

W1A+ IS +1* 'A+IO%A,* -O' P'O+*$+I%G

+1* 'IG1+ AGAI%S+ S*,-7I%$'I&I%A+IO%2

3. ;O6 1ut once the accused waives his right and

chooses to testify on his own behalf, he may be cross+

e@amined on matters covered in his direct


8/21

e@amination. t depends

> f he can still be prosecuted for it, 'uestions about

the past criminal liability are still covered by the

protection against self+incrimination

> 1ut if he cannot anymore be prosecuted for it

anymore, he cannot invo%e the right

SPPOS* 3 WAS A WI+%*SS AS*) A0O+ 0*I%G

$1A'G*) WI+1 P*'4'/ +WO /*A'S AGO.

1* I%(O*S 1IS 'IG1+ AGAI%S+ S*,-7

I%$'I&I%A+IO%. $A% +1IS 0* +A*% AGAI%S+

1I&2

> t depends. f in the prior charge of per0ury against

him, the case has already been terminated through his

ac'uittal, conviction, or dismissal of the complaint, he

couldnHt invo%e the right anymore.

1ut if it is the case that he could still be charged

with this past criminality, then he could invo%e said

right.

SPPOS* 3 WAS A WI+%*SS AS*)

A0O+ 0*I%G A PAI) WI+%*SS I% +1*

PAS+. 3 '*-S*) +O A%SW*' I%(OI%G +1*

'IG1+ AGAI%S+ S*,-7I%$'I&I%A+IO%. $A%

+1IS 0* +A*% AGAI%S+ 32

> "gain, it depends. f he could still be charged for

rendering false testimony, then he could invo%e the

right. f he cannot anymore be charged for past

criminality, then it could not invo%e the right.

3 A$$S*) WAS AS*) +O 0* A 1OS+I,*

WI+%*SS. 1* '*-S*) +O )O SO. $A% +1IS 0*

+A*% AGAI%S+ 32

> No, ! cannot be pre0udiced whatsoever as a result of

his refusal to be a hostile witness. To pre0udice !

as a result of his refusal would render his right

against self+incrimination useless and

nugatory.

TRIAL

Section 1. Time to prepare for trial. After a plea of not

guilty is entered, the accused shall have at least fifteen

(15) days to prepare for trial. The trial shall commence within

thirty (30) days from receipt of the pre-trial order.

HOW UCH TIE DOES THEACCUSED HA"E TO PREPARE$OR TRIAL!

> After he enters his plea of not guilty, the accused shall

have at least 15 days to prepare for trial

> The trial shall commence within 30 days from receipt of the

pre-trial order

HOW LONG SHOULD THE TRIAL LAST!

> The entire trial period should not exceed 180 days from the

first day of trial, except if authorized by the SC

IS +1* $O%$*P+ O- +'IA, +1* SA&* AS

1*A'I%G2

8 According to uri!prudence# they are not the

!ame concept!

8 +he word! hearing and trial have

di6erent meaning and connotation!

8 +rial may refer to the reception of evidence and

other proce!!e!. It embrace! the period for

the introduction of evidence by both partie!

8 1earing# a! Enown in law# i! not con"ned to

trial but embrace! the !everal !tage! of

litigation# including the pre7trial !tage. A

hearing doe!nDt nece!!arily mean

pre!entation of evidence. It doe!nDt nece!!arilyimply the pre!entation of oral or documentary

evidence in open court but that the partie!

are a6orded an opportunity to be heard.

WHAT IS PLEABARGAINING!

> It is the disposition of criminal charges by agreement between

the prosecution and the accused

> The accused and the prosecutor in a criminal case

work out a mutually satisfactory disposition of the case

subject to court approval

> It usually involves the defendants 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

> It is encouraged because it leads to prompt and final

disposition of most criminal cases. It shortens the time

between charge and disposition and enhances whatever

may be the rehabilitative prospects of the guilty when they are

ultimately imprisoned

WHEN IS PLEA BARGAININGNOT ALLOWED!


9/21

> It is not allowed under the Dangerous Drugs Act where

the imposable penalty is reclusion perpetua to death.

WHAT I$ THERE IS A PLEABARGAINING ARRI"ED AT!

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.

WHAT HAPPENS I$ THERE WASNO PLEA BARGAINING

AGREEENT! WHATWOULD THE COURT DO!

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 farther

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/es;

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.

Pro4isiona( Dis.issa(

Sec. 8. Provisional dismissal. A case shall not be

provisionally dismissed except with the express consent of

the accused and with notice to the offended party.

The provisional dismissal of offenses punishable

imprisonment not exceeding six (6) years or a fine of any

amount, or both, shall become permanent one (1) year

after issuance of the order without the case having

been revived. With respect to offenses punishable by

imprisonment of more than six (6) years, their

provisional dismissal shall become permanent two (2)

years after issuance of the order without the case having

been revived.

WHAT IS THE TIE-BAR

RULE! WHEN DOES APRO"ISIONAL DISISSALBECOE $INAL!

> The provisional dismissal of offenses punishable by

imprisonment exceeding 6 years or a fine of any amount

shall become permanent after one year without the case

having been revived

> For offenses punishable by imprisonment of more

than 6 years, the provisional dismissal shall become

permanent after 2 years without the case having been

revived.

> After the provisional dismissal becomes final, the accused

cannot be prosecuted anymore

WHEN CAN A CASE BEPRO"ISIONALLYDISISSED!

> A case can only be dismissed provisionally if the accused

expressly consents, such consent given in writing or viva voce.

> It must be positive, direct, unequivocal consent

requiring no inference or implication to supply its meaning

> The mere inaction or silence of the accused to a

provisional dismissal of the case or his failure to object toa provisional dismissal doesnt amount to express consent.


10/21

WHAT ARE THE CONDITIONS$OR SECTION @ O$ THERULES O$ COURT TOAPPLY!

WHAT ARE THE RE#UISITES

LAID DOWN BY PEOPLE "&LACSON!

1. The prosecution, with the express conformity of the

accused or the latters counsel moves for a provisional

dismissal of the case; or both the prosecution or accused

move 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

WHAT DOES IT EAN WHEN THETIE BAR RULE WILL NOTAPPLY!

> Provisional dismissal will not become permanent, even

after one year or two years depending on the offenses nature

HOW CAN A CASE BE RE"I"ED!

1. Re-filing the information or filing of a new informationfor the same offense necessarily included therein without need

of a new preliminary investigation unless the original

witnesses of the

prosecution or some of them may have recanted their

testimonies or may no longer be available and new

witnesses for the State have emerged

2. A new preliminary investigation is also required if aside

from the original accused, other persons are charged under a

new criminal complaint for the same offense or necessarily

included therein

3. Under a new criminal complaint, the criminal liability

of the accused is upgraded from that of an accessory to

that of a principal4. Under a new criminal complaint, the charge has been

upgraded

Pre-Tria( A,ree.ent

Sec. 2. Pre-trial agreement. All agreements or admissions

made or entered during the pre-trial conference shall be

reduced in writing and signed by the accused and

counsel, otherwise, they cannot be used against the accused.

The agreements covering the matters referred to in section

1 of this Rule shall be approved by the court.

WHAT HAPPENS DURING PRE-TRIAL!

> The following things are considered

1. Plea bargaining

2. Stipulation of facts

3. Marking for identification of evidence of the parties

4. Waiver of objections to admissibility of evidence

5. Modification of the order of trial if the accused admits the

charge but interposes a lawful defense

6. Other matters that will promote a fair and expeditious

trial of the criminal and civil aspects of the case

WHAT IS THE $OR RE#UIRED$OR THE PRE-TRIALAGREEENT!

> Any agreement or admission entered into during the

pre-trial conference should be

1. In writing

2. Signed by the accused

3. Signed by counsel

> A pre-trial agreement that doesnt follow this form cannot be

used against the accused

Pre-tria( Or0er

Sec. 4. Pre-trial order. After the pre-trial conference,

the court shall issue an order reciting the actions taken, the

facts stipulated, and evidence marked. Such order shall

bind the parties, limit the trial to matters not disposed of, and

control the course f the action during the trial, unless

modified by the court to prevent manifest injustice.

WHAT IS A PRE-TRIAL ORDER!> It is an order issued by the court after the pre-trial

conference containing:

o A recital of the actions taken

o The facts stipulated

o The evidence marked

> The pre-trial order binds the parties, limits the trial to

matters not disposed of, and controls the course of

action during the trial, unless modified by the court to

prevent manifest injustice

WHAT IS THEPROCEDURE $ORDISCHARGING APERSON AS A STATEWITNESS!

1& Be)ore restin, its *ase9te prose*'tion so'(0 )i(ea .otion to 0is*ar,e te

a**'se0 as a state witnesswit is *onsent


11/21

2& Te *o'rt wi(( re6'ire teprose*'tion to presente4i0en*e an0 te swornstate.ent o) te propose0state witness at a earin,

in or0er to s'pport te0is*ar,e

5& Te *o'rt wi(( 0eter.ine i)te re6'isites o) ,i4in,te 0is*ar,e are present&E4i0en*e a00'*e0 in s'pporto) te 0is*ar,e0 sa((a'to.ati*a((y )or. part o) tetria(

7& I) te *o'rt is satis)ie09 itwi(( 0is*ar,e te statewitness& Te 0is*ar,e ise6'i4a(ent to an a*6'itta(9'n(ess te witness (ater)ai(s or re)'ses to testi)y

8& Te *o'rt 0enies te.otion )or 0is*ar,e9 is

sworn state.ent sa(( /eina0.issi/(e as e4i0en*e

WHAT ARE THERE#UISITES IN ORDER$OR A PERSON TO BEDISCHARGED AS ASTATE WITNESS!

1. The discharge must be WITH THE CONSENT OF

THE ACCUSED sought to be a state witness

2. There is ABSOLUTE NECESSITY for the testimony of the

accused whose discharge is requested;

3. There is NO OTHER DIRECT EVIDENCE AVAILABLE for

the proper prosecution of the offense committed, except

the testimony of said accused;

4. The testimony of said accused can be

SUBSTANTIALLY CORROBORATED in its material points;

5. Said accused DOES NOT APPEAR TO BE THE MOST

GUILTY; and

6. Said accused has not at any time been convicted of

any offense involving MORAL TURPITUDE.

CAN THE COURT GRANT THEDISCHARGE BE$ORE THEPROSECUTION HAS$INISHED PRESENTING ALLITS E"IDENCE!

No. As a general rule, the court should resolve anymotion to discharge only AFTER the prosecution has

presented all of its evidence since it is at this time when the

court shall determine the

presence of the requisites above

In some cases, HOWEVER, the SC held that the

prosecution is not required to present all of its other evidence

before an accused is discharged. The accused may be

discharged at any time before

the defendants have entered upon their defense.

IS A HEARING O$ THE OTIONTO DISCHARGEANDATORY!

So long as the motion is able to receive evidence for and

against the discharge of an accused to become a state

witness, its subsequent order granting or denying the motion

for discharge is

in order notwithstanding the lack of actual hearing on the

motion

WHAT IS THE EANINGWHEN THE TESTIONYO$ THE ACCUSED CANBE SUBSTANTIALLYCORROBORATED IN ITSATERIAL POINTS!

There is presence of indirect testimony or evidence

that could corroborate with the truthfulness of the testimony of

the accused

WHAT HAPPENS I$ THERE IS

LAC O$ RE#UISITESPRESENT IN THE OTION$OR THE DISCHARGE O$THE ACCUSED!

There is no need to allege all the requisites in the motion.

What is required is that the court is satisfied that the

requisites are present for the discharge.

The evidence for the discharge may be presented

during the hearing on the motion

WHAT IS THE EANING O$ABSOLUTE NECESSITY O$


12/21

THE TESTIONY O$ THEPROPOSED STATEWITNESS!

It means that there is no other evidence to establish the

offense other than the testimony of the accused

For example, where an offense is committed inconspiracy and clandestinely, the discharge of one of

the conspirators is necessary in order to provide direct

evidence of the commission of

the crime

No one else other than one of the conspirators can testify

on what happened among them

DOES ABSOLUTENECESSITY EAN THATTESTIONY WOULD

RESULT IN ABSOLUTECERTAINTY O$CON"ICTION!

No

CAN THERE BE ORETHAN ONE ACCUSEDWHO CAN BEDISCHARGED!

Yes

WHAT IS THE REEDY O$THE PROSECUTION I$THE COURT DENIES THEOTION O$ THEPROSECUTION!

The State can file a petition for certiorari

THE ACCUSED PLEADED GUILTYTO THE CRIE CHARGEDANDOR ALREADYTESTI$IED AS ANACCUSED9 CAN HESTILL BE DISCHARGED!

Yes

CAN A CO-CONSPIRATOR BEDISCHARGED AS A STATEWITNESS!

RULEa co-conspirator cannot be discharged as a

state witness

against a co-conspirator

EXCEPTIONif the crime was committed

clandestinely and there

is no way to prove the crime

WHAT IS AN IRREGULARDISCHARGE!

Irregular discharge is a discharge where one or all of

the

conditions required for discharge didnt really exist

I$ THE STATE WITNESSRE$USES TO TESTI$Y9WILL HIS SWORN

STATEENT BE ADISSIBLEAGAINST HI!

No, his sworn statement will not be admissible against him

Otherwise, it violates his right against self-incrimination

Sec. 18. Discharge of accused operates as acquittal.

The order indicated in the preceding section shall

amount to an acquittal of the discharged accused and

shall be a bar to future prosecution for the same offense,

unless the accused fails or refuses to testify against

his co-accused in accordance with his sworn

statement constituting the basis for his discharge.

WHAT ARE THE E$$ECTS O$THE DISCHARGE!

1. Evidence in support of the discharge forms part of the trial.

But if the court denies the motion to discharge, his sworn

statement shall be inadmissible as evidence

2. Discharge of the accused operates as an ACQUITTAL

and bar to further prosecution for the same offense,

except if he fails or refuses to testify against his co-

accused in accordance with his

sworn statement constituting the basis of the discharge. Inthis case, he can be prosecuted again and his admission can

be used against him.

WHAT DOES IT EAN WHEN HE$AILS OR RE$USES TOTESTI$Y IN ACCORDANCEWITH HIS SWORNSTATEENT!

It means that the accused makes substantial changes

in his testimony that would naturally affect the proceedings

and would be prejudicial to the prosecution of the offense

charged


13/21

WHAT I$ IN THE SWORNSTATEENT O$ %9 HEENTIONED ONLY THAT 5O$ HIS COPANIONSWERE IN CONSPIRACY

WITH EACH OTHER&DURING HIS TESTIONY9HE TESTI$IED THAT ALL1 O$ HIS COPANIONSWERE IN CONSPIRACY& ISTHIS PROPER!

Yes

This doesnt fall within the ambits of refusing to

testify in accordance with his sworn statement

It will be proper as long as it will help further the

prosecution in prosecuting the offense charged against the

accused

WHAT HAPPENS I$ THECOURT IPROPERLY ORERRONEOUSLYDISCHARGES ANACCUSED AS STATEWITNESS9 AS WHEN $OR

E%APLE9 THE ACCUSEDHAS BEEN CON"ICTEDO$ A CRIE IN"OL"INGORAL TURPITUDE!

The improper discharge will not render inadmissible his

testimony nor detract from his competency as a witness

Neither will it invalidate his acquittal because the

acquittal becomes ineffective only if he fails or refuses to testify

WHAT I$ A$TER AN ACCUSEDHAS BEEN DISCHARGED TOBECOE A STATEWITNESS9 IT WAS $OUNDOUT DURING THE TRIALTHAT THE $ACTS HEATTESTED TO IN HISSWORN STATEENT WEREALL LIES! DOES THECOURT HA"E ANY

RECOURSE I$ THEREWAS A WRONG$ULDISCHARGE!

The discharge of the accused wouldnt be affected. His

discharge would still amount to an acquittal and is a bar

for further prosecution for the same offense. First, the grounds

mentioned in

the rule as exceptions to the general rule are exclusive in

character. The discharge will not be a bar to further

prosecution and not amount to acquittal is when the accused

refuses or fails to testify in accordance with his sworn

statement. Second, what the rules require is ABSOLUTE

NECESSITY and not ABSOLUTE CERTAINTY. Third, what

transpired was an error of judgment on the part of the court.

If the court has a recourse, it would be to detain the

discharged accused, following Section 19 of this Rule, and file a

case against him but not for the same offense but for perjury

WHAT HAPPENS WHEN THEORIGINAL IN$ORATIONUNDER WHICH AN

ACCUSED WASDISCHARGED IS LATERAENDED!

A discharge under the original information is just as

binding upon the subsequent amended information,

since the amended information is just a continuation of the

original

UST THE ACCUSED TO BE

DISCHARGED $IRST BECHARGED IN THECOPLAINT ORIN$ORATION!

No.

Note: the filing of the motion in court gives the court

jurisdiction over the persons

CAN THE OTHER

CONSPIRATORS BESOLELY CON"ICTED ONTHE BASIS O$ THEDISCHARGED STATEWITNESS!

No, there must be other evidence to support his testimony

The testimony of a state witness comes from a

polluted source and must be received with caution

It should be substantially corroborated in its material points

As an exception however, the testimony of a co-conspirator, even if uncorroborated, will be considered

sufficient if given in a straightforward manner and it contains


14/21

details which couldnt have

been a result of deliberate afterthought.

Contin'o's Tria( Syste.

Sec. 2. Continuous trial until terminated; postponements.

Trial once commenced shall continue from day to day as

far as practicable until terminated. It may be postponed for a

reasonable

period of time for good cause.

The court shall, after consultation with the prosecutor and

defense counsel, set the case for continuous trail on a

weekly or other short-term trial calendar at the earliest

possible time so as to ensure speedy trial. In no case shall

the entire trial period exceed one hundred eighty (180) days

from the first day of trial, except as otherwise authorized by the

Supreme Court.

The time limitations provided under this section and the

preceding section shall not apply where special laws or

circulars of the Supreme Court provide for a shorter period oftrial.

WHAT PROCEDURE IS USEDTO A"AIL HIS RIGHT TOSPEEDY TRIAL!

> Continuous trial systema tool for the early and

expeditious disposition of a case

WHAT IS THE CONTINUOUSTRIAL SYSTE!

> Trial once commenced shall continue from day to day

as far as practicable until terminated.

> It may be postponed for a reasonable period of time

for good cause.

> The court shall, after consultation with the prosecutor and

defense counsel, set the case for continuous trail on a

weekly or other short-term trial calendar at the earliest

possible time so as to ensure speedy trial.

> In no case shall the entire trial period exceed one hundred

eighty (180) days from the first day of trial, except asotherwise authorized by the Supreme Court.

HOW DO YOU ENSURECONTINUOUS TRIALSYSTE!

> There must be a time limit within which the case

should be terminated

WHAT ARE THE DUTIES O$THE PRESIDING ?UDGE

UNDER THE CONTINUOUSTRIAL SYSTE!

1. Adhere faithfully to the session hours prescribed by laws

2. Maintain full control of the proceedings

3. Efficiently allocate and use time and court resources to

avoid court delays

IS THE TIE LIIT ABSOLUTE!

> No

IN WHICH CASES IS THE TIELIITATION NOTAPPLICABLE!

1. CRIMINAL CASES COVERED BY THE RULES

ON SUMMARY PROCEDURE OR THOSE WHERE THEPENALTY DOESNT EXCEED 6 MONTHS IMPRISONMENT

OR A FINE OF P1000: governed by the

rules on summary procedure

2. WHEN THE OFFENDED PARTY IS ABOUT TO

DEPART WITH NO DEFINITE DATE OF RETURNtrial

shall commence within 3 days from the date of arraignment,

and cannot be postponed except on

grounds over which the accused has no control

3. CHILD ABUSE CASEStrial shall commence within 3

days from arraignment and cannot be postponed except on

grounds of illness of the accused or other grounds beyond his

control

4. VIOLATIONS OF DANGEROUS DRUGS LAWtrial shall

be finished within 3 months from the filing of the information

5. KIDNAPPING, ROBBERY IN A BAND, ROBBERY

AGAINST A BANKING OR FINANCIAL INSTITUTION,

VIOLATION OF THE CARNAPPING ACT, AND OTHER

HEINOUS CRIMEStrial shall be finished within 60 days

from the first day of trial

Sec. 4. Factors for granting continuance. The

following factors, among others, shall be considered

by a court in determining whether to grant a continuance

under section 3(f) of this Rule.

(a) Whether or not the failure to grant a

continuance in the proceeding would likely make a

continuation of such proceeding impossible or result in a

miscarriage of justice; and

(b) Whether or not the case taken as a whole is

so novel, unusual and complex, due to the number of

accused or the nature of the prosecution, or that it is

unreasonable to expect adequate

preparation within the periods of time established therein.

In addition, no continuance under section 3(f) of this

Rule shall be granted because of congestion of the courts

calendar or lack of diligent preparation or failure to obtain

available witnesses on the part of the prosecutor.


15/21

WHAT IS A CONTINUANCE!

A continuance is a postponement of trial

WHAT ARE THE $ACTORS $OR

GRANTING ACONTINUANCEPOSTPONEENTS!

1. Whether or not the failure to grant a continuance in

the proceeding would likely make a continuation of such

proceeding impossible or result in a miscarriage of justice; and

2. Whether or not the case taken as a whole is so novel,

unusual and complex, due to the number of accused or

the nature of the prosecution, or that it is unreasonable to

expect adequate

preparation within the periods of time established therein.

No continuance under section 3(f) of this Rule shall

be granted because of congestion of the courts calendar

or lack of diligent preparation or failure to obtain available

witnesses on the part of

the prosecutor.

IS THE GRANT O$ A OTION$OR CONTINUANCE ORPOSTPONEENT A ATTER O$RIGHT!

It is a matter of discretion on the part of the court

IS THERE A DI$$ERENCEBETWEEN THE RIGHTTO COUNSEL DURING

THE CUSTODIALIN"ESTIGATION AND

THE RIGHT TO

COUNSEL DURINGTRIAL!

>Yes. During the trial, the right to counsel means the

right to effective counsel. During trial, the purpose of the

counsel is not so much to protect the accused from being

forced to confess, but

rather is to defend the accused.

> On the other hand, a custodial investigation has

stricter requirements. A custodial investigation requires the

presence of a competent and independent counsel, who is

preferably the

accuseds own choice. Furthermore, the right to counselcould only be waived in writing and in the presence of counsel.

> A custodial investigation take note is not done in public,

hence the danger that confessions will be extracted against

the will of the defendant during the custodial investigation.

This danger doesn't

really exist during trial since the latter is done in public.

WHY IS THE RIGHT TO COUNSELA$$ORDED DURING TRIAL!

> The right to counsel afforded during trial because this

right is embraced in ones right to be heard

WHEN SHOULD THE RIGHT TOCOUNSEL BE IN"OED!

> The right to counsel can be invoked at any stage of the

proceedings, even on appeal

> However, it can also be waived

> The accused is deemed to have waived his right to counsel

when he voluntarily submits himself to the jurisdiction of the

Court and and proceeds with his defense

> But in two cases, the Court held that the defendant cannot

raise for the first time on appeal his right to have an attorney. If

the question is not raised in the trial court, the prosecution may

go to

trial. The question will not be considered in the appellate court

for the first time when the accused fails to raise it in the lower

court.

IS IT THE DUTY O$ THE COURTTO APPOINT COUNSEL DEO$$ICIO ANDATORY ATALL TIES!

> No, the duty to appoint counsel de officio is mandatory only

up to the time of arraignment

DOES THE ISTAE O$COUNSEL BIND THECLIENT!

> As a rule, the mistake of counsel binds the client

> Therefore, the client cannot question a decision on the

ground that his counsel was an idiot

> However, an exception to this if counsel misrepresents

himself as a lawyer, and he turns out to be a fake lawyer. In this

case, the accused is entitled to new trial because his right to be

represented

by a member of the bar was violated. He was thus denied of

his right to counsel and due process.

IS THE RIGHT TO COUNSEL

ABSOLUTE!> No since the right of choice must be exercised in a

reasonable manner within reasonable time.


16/21

> The accused cannot insist on counsel that he cannot

afford, one who is not a member of the bar, or one who

declines for a valid

reason.

> Also the right of the accused to choose counsel is subject to

the right of the state to due process and adequate justice.

WHEN CAN THE ACCUSEDDE$END HISEL$ INPERSON!

> The accused can defend himself in person only if the

court is convinced that he can properly protect his rights even

without the assistance of counsel.

Noti*e O) App(i*ation ToProse*'tor

WHY IS NOTICE TO THE PROSECUTORRE#UIRED!

> Such notice is required because the burden of

showing that the evidence of guilt is strong is on the

prosecution

Sec. 18. Notice of application to prosecutor. In the

application for bail under section 8 of this Rule, the

court must give reasonable notice of the hearing to the

prosecutor or require him to submit his recommendation.

WHAT IS HABEAS CORPUS!

Habeas corpus means having it brought plus body

To inquire into the legality of the detention of a person

A writ or order requiring that a prisoner be brought before a

judge or into court to decide whether he is being held lawfully.

WHY IS HABEAS CORPUSCONSIDERED ANE%CEPTION TO THEE%CEPTION!

Because it is a prerogative writ and therefore must

be decided upon immediately by the court

The habeas corpus proceeding must take precedence

over all other cases because it involves the liberty of the

person

WITHIN HOW ANY HOURSSHOULD A ?UDGE RESOL"EA HABEAS CORPUSPROCEEDING!

Within 48 hours or 2 days

WHAT ARE THE DUTIES O$ THEPUBLIC ATTORNEY I$ THEACCUSED ASSIGNED TOHI IS IPRISONED!

1. He 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 advise the

prisoner of his right to demand trial

2. Upon receipt of that notice, the person having

custody of the prisoner shall promptly advise the prisoner of

the charge and his right to demand trial. If at anytime

thereafter, the prisoner

informs the 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 person having custody 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.


17/21


18/21


19/21


20/21


21/21

Right to Counsel De Parte Is Not Absolute

"ccordingly, an accused may e@ercise his right to

counsel by electing to be represented either by a court+

appointed lawyer or by one of his own choice. &hile

his right to be represented by counsel is

immutable, his option to secure the services of

counsel de parte,however, is not absolute. The court is

obliged to balance the privilege to retain a counsel of

choice against the statesBs and the o#ended partyBs

e'ually important right to speedy and ade'uate

0ustice. Thus, the court may restrict the accusedBs

option to retain a counsel de parteif the accused insists

on an attorney he cannot a#ord, or the chosen counsel

is not a member of the bar, or the attorney declines to

represent the accused for a valid reason, e.g. conIict of

interest and the li%e.J5KL

"lso, the right to counsel de parteis, li%e other personal

rights, waivableJ7?Lso long as F3G the waiver is not

contrary to law, public order, public policy, morals orgood customs or pre0udicial to a third person with a

right recogniCed by lawJ73Land F5G the waiver is

une'uivocally, %nowingly and intelligently made.J75L

n Sayson vs. People,J77Lthis 4ourt held that the duty of

the court to appoint a counsel de ofciois not

mandatory where the accused has proceeded with the

arraignment and the trial with a counsel of his choice

but, when the time for the presentation of the evidence

for the defense was due, he appears by himself alone

because of the ine@cusable absence of his counsel. n

another case, this 4ourt held that the right to be heard

and to reopen the case Fand send it to trial anewG could

not be allowed if doing so would sanction a plainlydilatory tactic and a reprehensible triIing with the

orderly administration of 0ustice.J7)L

n the present case, appellant claims that he was not

given suDcient time to engage a counsel de

parte, thereby preventing him from presenting

evidence in his defense. n his 1rief he adds, but

without giving particulars or proof, that allegedly his

counsels de ofcio did not e@ert their utmost e#orts in

representing him, thus:J7L

@ @ @ FTGhe lower court a#orded the accused the

assistance of counsel de o2cio as early as the

arraignment stage but failed to show that utmoste#orts were e@erted by said counsel to defend the life

and liberty of the accused. The duty of the court is not

ended with such appointment, however, as it should

also see to it that the counsel does his duty by the

defendant. 4ounsel de o2cio should not merely ma%e

the motions of defending the accused but e@ert his

utmost e#orts as if he were representing a paying

client.

The (olicitor $eneral, in his eleven+page 1rief,J7Lrebuts

this, arguing that appellantBs actions during the trial

showed instead a lac%adaisical stance on his own

defense.

"ppellant had been given ample time to secure the

services of a counsel de parte, but his subse'uent

appearances in court without such counsel and his act

of allowing this situation to continue until the

presentation of his evidence betrays his lac% of

intention to do so. t even appears that he was merely

delaying his own presentation of evidence on purpose

to the pre0udice of the o#ended party, the trial court

and the orderly administration of 0ustice.

;urthermore, appellant did not demonstrate in what

way the services of his counsels de ofciowere

unsatisfactory.

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Procedures in Criminal Law