ZPG REMEDIAL LAW (CRIMINAL PROCEDURE

)
PRELIMINARIES 1. Jurisdiction is determined by the extent of the penalty which the law imposes, on the basis of the facts as recited in the complaint or information constitutive of the offense charged. • Not determined by:  what may be meted out to the offender after trial  the result of the evidence that would be presented during the trial Jurisdiction is retained regardless of:  whether the evidence proves a lesser offense than that charged in the information,  the subsequent happening of events, although of a character which would have prevented jurisdiction from attaching in the first instance. • • Instituted directly with the MTC and MCTC, or the complaint is filed with the Office of the Prosecutor. In Manila and other chartered cities, the complaint shall be filed with the Office of the Prosecutor unless otherwise provided in their charters.

3. Take Note: A complaint for offenses cognizable by the RTC is NOT filed directly with the RTC either for purposes of preliminary investigation or for commencement of the criminal prosecution. 4. The institution of the criminal action interrupts the running of the period of prescription of the offense charged • Unless: otherwise provided in special laws. • Act No. 3323 governs the prescriptive periods of violations of special laws, or offenses other than those penalized under the Revised Penal Code.

2. General Rule: Jurisdiction of a court to try criminal action is to be determined by the law at the time of the institution of the action. • Exception: where the statute expressly provides, or is construed that it is intended to operate to actions pending before its enactment, in which case, the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal which will continue the proceeding.

5. The filing of a complaint for purposes of preliminary investigation starts the prosecution process. The complaint or information 1. Requisites: • in writing • in the name of the People of the Philippines • Against all persons who appear to be responsible for the offense involved. 2. Who is the real offended party? The People of the Philippines, but since the crime is also an outrage against the offended party, he is entitled to intervene in its prosecution in cases where the civil action is impliedly instituted therein. Complaint 1. Definition: A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. 2. The complaint as defined under Section 3 is different from the complaint filed with the Prosecutor’s Office. 3. The complaint filed with the Prosecutor’s Office, from which the latter may initiate a preliminary investigation, refers to: • any written complaint • filed by an offended party or not • not necessarily under oath, except in 2 instances:  complaint for commission of an offense which cannot be prosecuted de officio or is private in nature  where the law requires that it is to be started by a complaint sworn to by the offended party, or when it pertains to those which need to be enforced by specified public officers. 4. Under the Rule on Summary Procedure: • a complaint may be directly filed in the MTC, provided that in Metro Manila and in chartered cities, the criminal action may only be commenced by the filing of information, which means by the prosecutor, except when the offense cannot be prosecuted de officio as in private crimes.

3. Venue is jurisdictional. • Thus: Action must be instituted and tried in the municipality or territory where the offense has been committed or where any one of the essential ingredients thereof took place. 4. General Rule: the question of jurisdiction may be raised at any stage of the proceedings. • Exception: may not be raised for the first time on appeal, where there has been estoppel and laches on the party who raises the question. RULE 110 PROSECUTION OF OFFENSES Institution of Criminal Actions 1. For offenses which require preliminary investigation: • By filing the complaint with the proper officer for preliminary investigation.  Refers to a complaint-affidavit, and is different from the complaint defined in Section 3 of Rule 110.  These offenses are those where the penalty prescribed by law is at least 4 years, 2 months and 1 day of imprisonment without regard to the fine.

2. For all other offenses, or for offenses which are penalized by law with lower than at least 4 years, 2 months and 1 day without regard to the fine:

1

ZPG REMEDIAL LAW (CRIMINAL PROCEDURE)
Information 1. Definition: An accusation in writing a person with an offense, subscribed by the prosecutor and filed with the court. 2. How is an Information different from a Complaint? Unlike a complaint, which requires that it be under oath and is filed either in the MTC or with the provincial/city prosecutor’s office, the information does not have to be under oath and is always filed in court. All that is required is that it be subscribed or signed by the fiscal or prosecutor, which is an indispensable requirement. Who must prosecute criminal actions 1. May a criminal prosecution be restrained by injunction? • General Rule: No. • Reason: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. • Exceptions:  where injunction is justified by the necessity to afford protection to the constitutional rights of the accused  when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions when there is a prejudicial question which is sub judice when the acts of the officer are without or in excess of authority where the prosecution is under an invalid law, ordinance or regulation when double jeopardy is clearly apparent where the court has no jurisdiction over the offense where it is a case of persecution rather than prosecution where the charges are manifestly false and motivated by the lust for vengeance when there is clearly no prima facie case against the accused and the motion to quash on that ground has been denied preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners.  who may sustain, modify or set aside his resolution on the matter in appropriate cases, by the courts when he acts with grave abuse of discretion amounting to lack of jurisdiction.

3. Private Prosecutor Participation: • May a public prosecutor allow a private prosecutor to actively handle the conduct of the trial? Yes, where the civil action arising from the crime is deemed instituted in the criminal action. • Public Prosecutor must be present during the proceedings and must take over the conduct of the trial from the private prosecutor at any time the cause of the prosecution may be adversely affected.  Thus, where the prosecutor has turned over the active conduct of the trial to the private prosecutor who presented testimonial evidence even when the public prosecutor was absent during the trial, the evidence presented could not be considered valid evidence of the People. However: this rule applies only to courts which are provided by law with prosecutors, and not to municipal courts which have no trial prosecutors, in which case the evidence presented by the private prosecutor can be considered as evidence for the People.

 

*However, under an amendment made by the SC effective May 1, 2002, Rule 110 Section 5 now provides that “All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn." 4. General Rule: In appeals, the Sol. Gen. has control. He may abandon or discontinue the prosecution of the case in the exercise of his sound discretion and may even recommend the acquittal of an accused when he believes that the evidence does not warrant his conviction. • Exception: provided for in RA 8249 which states in part that “in all cases elevated to the Sandiganbayan and from the SB to the SC, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to EO Nos. 1, 2, 14 and 14-A, issued in 1986.”

2. Prior to the filing of the information in court , the prosecutor has full control of the case. He decides who should be charged in court and who should be excluded from the information. • However: His decision on the matter is subject to review by:  the Secretary of Justice who exercises supervision and control over his actions and

5. When it is said that the requirement of Art. 344 of RPC is jurisdictional, what is meant is that it is the complaint that starts the prosecutory proceeding. It is not the complaint which confers jurisdiction on the court to try the case. 6. Once the complaint is filed, does death of the complainant in a crime of adultery extinguish the criminal liability of the accused? No. The participation of the offended party in private crimes is essential not for the

2

ZPG REMEDIAL LAW (CRIMINAL PROCEDURE)
maintenance of the criminal action but solely for the initiation thereof. Any pardon given by the complainant or her death after the filing of the complaint would not deprive the court of the jurisdiction to try the case. 7. The desistance of complainant: • Does not bar the People from prosecuting the criminal action • But: it does operate as a waiver of the right to pursue civil indemnity. 2. Important: The new rule requires that the qualifying and aggravating circumstances be alleged in the information. 3. Where the law alleged to have been violated: • prohibits generally acts therein defined • is intended to apply to all persons indiscriminately, • but prescribes certain limitations or exceptions from its violation the information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove. 4. Where the law alleged to have been violated… • applies only to specific classes of persons and special conditions • the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, the information must show that the accused does not fall within the exemptions. 5. Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can only be convicted of the offense proven. Place of commission of the offense May conviction be had even if it appears that the crime was committed not at the place alleged in the information? Yes, provided the place of actual commission was within the jurisdiction of the court. • Unless: the particular place of commission is an essential element of the offense charged. Date of the commission of the offense What is the determinative factor in the resolution of the question involving a variance between the allegation and proof in respect of the date of the crime? The element of surprise on the part of the accused and his inability to defend himself properly. Name of the offended party To constitute larceny, robbery, embezzlement, obtaining money by false pretenses, malicious mischief, etc., the property obtained must be that of another person, and indictment for such offense must name the owner and a variance in this respect between the indictment and the proof will be fatal. Duplicity of the offense 1. Waiver: • When the accused fails, before arraignment, to move for the quashal of the information which charges 2 or more offenses, he thereby waives the objection and may be found guilty of as many offenses as those charged and proved during the trial. 2. Where the law with respect to an offense may be committed in any of the different modes provided by law , the indictment in the information is sufficient if the offense is alleged to have been committed in one, two or more modes specified therein.

Sufficiency of complaint or information 1. A complaint is sufficient if it states: • the name of the accused • the designation of the offense by a statute • the acts or omission complained of as constituting the offense • the name of the offended party • the approximate time of the commission of the offense • the place where the offense was committed. 2. Purpose: to safeguard the constitutional right of an accused to be informed of the nature and cause of the accusation against him.

Name of the accused 1. If name is known: the name and surname of the accused or any appellation or nickname by which he has been or is known. 2. If name cannot be ascertained: a fictitious name with a statement that his true name is unknown. • If true name thereafter disclosed: such true name shall be inserted in the complaint or information and record. 3. While one or more persons, along with specified and named accused, may be sued as “John Does,” an information against all accused described as “John Does” is void, and an arrest warrant against them is also void. Designation of the offense 1. In case of a conflict between the designation of the crime and the recital of facts constituting the offense , the latter prevails over the former. 2. The real question is not, did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime. Cause of accusation 1. If 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 entering a plea of guilty to such defective information will not cure the defect, nor justify his conviction of the offense charged.

3

Technically. without placing the accused in double jeopardy. 3.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) The various ways of committing the offense should be considered as a description of only one offense and the information cannot be dismissed on the ground of multifariousness. 6. may amend the information to allege such supervening fact and upgrade the crime charged to the higher crime brought about by such supervening fact. 3. Exceptions to the rule on duplicity : continuous crimes and complex crimes Amendment or substitution 1. hence Philippine courts have no jurisdiction over crimes committed outside the Philippines. by conducting the examination of witnesses under the control of the prosecutor. paragraph 2 of Section 14 does not refer to amendment. which makes the amendment of the information no longer the remedy of the prosecution. can the case be revived upon motion of the offended party? No. or  he institutes the civil action prior to the criminal action. the question of double jeopardy does not arise. General Rule: after arraignment. Intervention of the offended party in criminal action 1. provided there is evidence thereon which has been presented during the preliminary investigation. he may not withdraw such civil case in order to intervene in the criminal prosecution. the prosecution can and should charge the accused for such more serious crime. Section 14 applies only to original case and not to appealed case. Before the accused enters his plea. no such civil action can be instituted after 4 . RULE 111 PROSECUTION OF CIVIL ACTION Institution of criminal and civil actions 1. If at all. • Except in the following instances:   5. 4. Place where action is to be instituted 1. as it will prejudice the substantial rights of the accused. Court of Appeals since quasi-delict is not deemed instituted with the criminal. prosecutor cannot: • downgrade the offense charged • exclude from the information a co-accused without filing a motion to that effect. because the offended party or complaining witness cannot act for the prosecutor. He loses the right to intervene. but to substitution of the complaint or information by a new one. However. the prosecutor. 2. • Exception: when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime. especially the offended party. Two instances where no reservation shall be allowed: • a criminal action for violation of BP 22  unless a separate civil action has been filed before the institution of the criminal action. General Rule: 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. Where the offended party withdrew a reservation to file a separate civil action. being an essential element of jurisdiction. there being no identity of the offense • the offended party waives the civil action. 2. Test as to whether a defendant is prejudiced by an amendment: • whether a defense under the information as it originally stood would be available after the amendment is made. the filing thereof may only be allowed if it will not place the accused twice in jeopardy. He no longer has any standing in the criminal case. he reserves his right to institute the civil action separately. The employer may not be held civilly liable for quasi-delict in the criminal action as ruled in Maniago v. and • whether any evidence defendant might have would be equally applicable to the information in the new form as in the other. • Exceptions: those provided in Article 2 of the Revised Penal Code. 2. If the substitution is made before the accused enters his plea. 3. General Rule: Penal laws are territorial. The court shall state the reasons in resolving the motion and copies thereof furnished all parties. • However: once the offended party has filed a separate civil action arising from the crime . except to be a prosecution witness. the prosecutor may no longer amend the information which changes the nature of the crime. with notice to the offended party. the only civil liability of the employer in the criminal action would be his subsidiary liability under the Revised Penal Code. the prosecutor may: • upgrade the offense • allege qualifying and aggravating circumstances or • change the offense charged without leave of court. and subject to the approval of the court. with leave of court. Those who commit any of the crimes contemplated therein can be tried by Philippine courts. Where a criminal action has been provisionally dismissed upon motion of the prosecutor. charged in the first information and in the second one. 2. Venue in criminal case is jurisdictional . If the filing of new information is done after the plea and before judgment on the ground that there has been a mistake in charging the proper offense. However: if the supervening event which changes the nature of the crime to a more serious one occurred after the accused has been convicted. the private prosecutor may still intervene in the prosecution of the criminal case.

Effect of death of the accused on civil actions 1.  a civil action filed prior to the criminal action has to be transferred to the subsequently filed criminal action for joint hearing (Sec. the trial court will not acquire jurisdiction over such other damages. The plaintiffs in the two actions are different. 7. and not after final judgment. 2. otherwise. 4. Actions based on quasi-delict may be filed independently of the criminal action regardless of the result of the criminal action. upon the filing of the criminal and civil actions. 10. After arraignment and during the pendency of the criminal action: • General Rule: death extinguishes the civil liability arising from delict or the offense  • With respect to damages other than actual. Important!: Section 1. Although the criminal and civil actions may be joined in the criminal case. the grant and amount thereof are left to the sound discretion of the trial court. as the judgment regarding civil liability has not become final and the court still has jurisdiction to adjudge the civil liability. thereby making the judgment against him final. The offended party shall. but dismissed the civil action instituted therein. 9.  the trial court should confine itself to the criminal aspect and the possible civil liability of the accused arising out of the crime. Prior reservation is not necessary to file separate civil action under Arts. 33. the corresponding filing fees should be paid. When civil action may proceed independently 1.  Exception: criminal action for violation of BP 22 which is deemed to include the corresponding civil action. • Thus: even if the accused started serving his sentence within the 15-day period from the promulgation of the judgment of conviction by the lower court. without paying the corresponding filing fees therefor. but modifications of the judgment beneficial to him are considered in his favor. namely. • A claim arising from an offense which is cognizable by the Sandiganbayan. still ask that the civil liability be fixed by the court. • 5 . within the 15-day reglementary period. The rule requiring reservation to file a separate civil action does not apply to civil actions which can be filed and prosecuted independently of the criminal action. 32. 4 of PD1606 as amended by RA 8249) 8. 33. When separate civil action is suspended Take Note: Article 29 of the Civil Code merely emphasizes that a civil action for damages is not precluded by the acquittal of an accused for the same criminal act or omission. those provided in Arts. Compromise on civil aspect: • The offended party may compromise the civil aspect of a crime. 5. cross-claim or third-party complaint may be filed by the accused in the criminal case. Where moral. if these damages are specified in the complaint or information. Where the trial court convicted the accused. • However.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) the criminal action has been filed as the same has been included therein. The phrase “which has been reserved” that has caused conflicting rulings in the past has now been deleted. but any cause of action which could have been subject thereof may be litigated in a separate civil action. provided that it must be entered before or during the litigation. The offended party in a criminal case may appeal the civil aspect despite the acquittal of the accused. Purpose of Exception: to prevent the offended party from using the prosecutor’s office and the court as vehicles for recovery of the face value of the check. the offended party may appeal the dismissal to the CA. Rule 111 now expressly provides that no counterclaim. 6. pay in full the filing fees based on the face value of the check as the actual damages. 34 and 2176 of the Civil Code. additional penalties cannot be imposed upon a co-accused who did not appeal. • Reasons:  the counterclaim of the accused will unnecessarily complicate and confuse the criminal proceedings. they are distinct from each other. the complainant may. 34 and 2176 of the Civil Code. exemplary and other damages are not specified in the complaint or information. except that a plaintiff cannot recover damages twice for the same act or omission of the defendant. In an appeal of a criminal case: • The appellate court may impose additional damages or increase or decrease the amounts of damages upon the accused-appellant. When the reservation of the right to institute the separate civil actions shall be made: before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such a reservation. 11. if the judgment does not adjudicate any civil liability. Rules on Filing Fees: • No filing fees are required for amounts of actual damages. It does not state that the remedy can be availed of only in a separate civil action. A compromise on the civil aspect is valid even if it turns out to be unsatisfactory either to one or both of the parties. 32. the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment.

When there is no preliminary investigation. and without prior written authority of. subject to the requirements of both substantive and procedural due process. quasicontract and quasi-delict.  2. an election offense as defined in the Omnibus Election Code and in other election laws. The suspension of the criminal case due to a prejudicial question is only a procedural matter. if the civil action has been reserved and subsequently filed or such civil action has been instituted. However. nor can the prosecutor file an information with the Sandiganbayan without being deputized by. when required 1. Before arraignment: • The civil action impliedly instituted in the criminal action shall be dismissed without prejudice to the offended party’s filing a civil action against the administrator of the estate of the deceased. Nonetheless. namely.16 Rule 3 of the Rules of Court. Regarding election offenses: • The exclusive jurisdiction of the Comelec to investigate and prosecute election offenses inheres even if the offender is a private individual or public officer or employee. irrespective of whether the offense is committed in relation to his official duties or not. 34 and 2176 absolving the defendant from civil liability does not bar the criminal action. and is subject to a waiver by virtue of prior acts of the accused. 33. 32. • Judges of RTCs 2. The prejudicial question may be raised during the preliminary investigation of the offense or in court before the prosecution rests its case. Judgment in civil action not a bar The judgment in civil actions based on Arts. contract. the Ombudsman or his deputy. 2. and not the personality of the offender that matters. • 4. 3. • a personal right and may be waived expressly or by implication.  Lack of PI is not a ground to quash or dismiss a complaint or information. Two types of offenses may be filed in the MTC for preliminary investigation: • a case cognizable by the RTC may be filed with the MTC for PI. Regarding offenses falling within the original jurisdiction of the Sandiganbayan: • Prosecutors or municipal trial court judges conducting PI of offenses falling within the original jurisdiction of the Sandiganbayan shall. nor does it affect the court’s jurisdiction. No longer authorized to conduct PI: • By implication. Pending appeal of his conviction: • extinguishes his criminal liability as well as the civil liability based solely thereon. it is the nature of the offense. MTC judges in Manila and in chartered cities have not been granted the authority to conduct PI. and in the latter instance. 2. Prejudicial question 1. then such civil action will proceed and substitution of parties shall be ordered by the court pursuant to Sec. RULE 112 PRELIMINARY INVESTIGATION Preliminary investigation defined. • Moreover. when the accused died. transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. as the officers authorized to do so are the prosecutors. • even if it is cognizable by the MTC because it is an offense where the penalty prescribed by law is at least 4 years 2 months and 1 day. The criminal case is reduced to a civil action. In other words. Regarding the Ombudsman: • The power of the Ombudsman to make investigation extends to any illegal act or omission of any public 6 .ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) • Except: where civil liability is predicated on other sources of obligations such as law.  The right of an accused to a preliminary investigation is not a constitutional but merely a statutory right. the accused must invoke it at the first opportunity and the court should hold in abeyance or suspend proceedings and remand the case to the office of the prosecutor for him to conduct PI. Nor is its record part of the record of the case in the RTC. after their conclusion. There is no prejudicial question where one case is administrative and the other is civil. component part of due process in criminal justice and is a substantive right. • Preliminary investigation is: not part of the trial of the criminal action in court. The refusal of the court to remand the case for PI can be controlled by certiorari and prohibition to prevent trial. Officers authorized to conduct preliminary investigation 1.  If such civil action which survives is impliedly instituted in the criminal action . 5. 3. Prior to final judgment: • terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed. 4. the legal representative or heir of the deceased shall be substituted for the deceased. it is a 3. the prosecutor or judge cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy.

07 disallows the filing of a motion to quash or dismiss a complaint filed with the Ombudsman. It has been said that at this stage. 3. bribery. Which remedy may an aggrieved party avail of against resolutions of the Ombudsman in criminal or non-administrative cases? The law is silent. Section 4(d) of Administrative Order No. The accused or respondent in a criminal prosecution may avail himself of discovery remedies either during preliminary investigation or when the information has already been filed in court. the grant or denial of which is subject to the discretion of the trial court. Hence. But while he may strike hard blows. Resolution of investigating prosecutor and its review 1. evidence is shown that such persons should have been charged.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) official. or any penalty service of which would amount to removal from office because by constitutional mandate. does not submit a counter-affidavit within the 10day period. However. or betrayal of public trust  to prosecute public officers or employees who have committed election offenses. 2. they can only be removed from office on impeachment for. and they can be subsequently prosecuted. from entertaining a petition for review or appeal from the action of the prosecutor once the complaint or information is filed in court. other high crimes. Neither is the same a ground for a motion to quash. • The accused who has been charged with the offense is not allowed to escape punishment merely because it develops in the course of the trial that there were other guilty participants in the crime. Procedure 1. a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. If the Secretary reverses the ruling of the prosecutor. unlike judges who are mandated to display cold neutrality in hearing cases. Role of Secretary of Justice: • The Secretary of Justice is not prevented from entertaining an appeal from the accused or from the offended party even after the information has been filed and the trial court has arraigned the accused. The respondent now has the right to examine the evidence submitted by the complainant of which he may not have been furnished and to obtain copies thereof at his expense. The prosecutor is required to resolve the complaint based on the evidence presented by the complainant in the event that the respondent cannot be subpoenaed or the respondent. graft and corruption. appeal is not available as a remedy because the right to appeal is a statutory privilege and may be availed of only if there is a statute to that effect. an aggrieved party is not without remedy. treason. whether or not the same is committed in relation to his office. 5. Resolution of investigating judge and its review Non-judicial function: • When a municipal judge conducts PI. as he can resort to the special civil action of certiorari under Rule 65. except on the ground of lack of jurisdiction. Consequently. as far as practicable. After having filed the information. By reason of the abbreviated nature of PI. the prosecutor is called upon to prosecute the case in court. if subpoenaed. The accused’s failure to assert lack of authority on the part of the prosecutor in filing the information does not constitute a waiver thereof. • • • • 3. The Ombudsman does not have the power:  to prosecute before the Sandiganbayan any impeachable officers with any offense which carries with it the penalty of removal from office. Effect of exclusion of other persons from the information: • If during the trial. 2. When warrant of arrest may issue 7 . 4. the latter has to file the necessary motion to dismiss the complaint or information. he is not at liberty to strike foul ones. It does not vitiate the validity of the information.  to file an information for an offense cognizable by the regular courts. 4. and conviction of. Effect of an incomplete PI: • does not warrant the quashal of the information • does not affect the court’s jurisdiction or the validity of the information. 5. culpable violation of the Constitution. A motion to dismiss is now a prohibited pleading during preliminary investigation. he performs a non-judicial function. 6. Effect if the information is filed by someone not authorized by law: • The court does not acquire jurisdiction . the findings of the investigating judge are subject to review by the provincial prosecutor whose findings in turn may also be reviewed by the Secretary of Justice in appropriate cases. Section 4 of DOJ 223 should be construed as merely enjoining the Secretary of Justice to refrain. the fact that they were not included in the information does not relieve them of criminal liability. the prosecutors are not required to divest themselves of their personal convictions and refrain from exhibiting partiality. • Preliminary investigation by the Ombudsman is limited to cases cognizable by the Sandiganbayan and must be conducted pursuant to Rule 11 of the Rules of Procedure of the Office of the Ombudsman. The respondent is now required to submit counter-affidavits and other supporting documents relied upon by him for his defense.

General Rule: No complaint or information shall be filed for an offense which is penalized by imprisonment of not less than 4 years. If the accused allows himself to be arraigned without asking for a preliminary investigation. Before the filing of a complaint or information. After the conclusion of his PI . Municipal judge may issue arrest warrant before conclusion of preliminary investigation if: • he finds that probable cause exists and • there is a necessity of placing respondent under immediate custody. • cases where the punishment does not exceed 4 years 2 months and 1 day. Where an information has already been filed in court. 3. a complaint or information may only be filed after an inquest conducted in accordance with existing rules. When accused lawfully arrested without warrant 8 . 7. or file complaint or information within the period specified in Art. 9. before the prosecutor concluded the reinvestigation. Regarding reinvestigation: • Once the complaint or information is filed in court . the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. • Provided: that in the absence or unavailability of an inquest prosecutor. The investigating judge has no power to reduce or change the crime charged in order to justify the grant of bail to the accused. 2 months and 1 day without PI. regardless of whether he finds a probable cause or sufficient ground to issue a warrant of arrest. even if the judge finds probable cause. but he merely evaluates personally the report and supporting documents and other evidence adduced during the preliminary investigation and submitted to him by the prosecutor. Effect of a finding of probable cause: • merely binds over the suspect to stand trial. any motion for reinvestigation is addressed to the sound discretion of the court. 4. on such ground alone. • if the warrant of arrest has been issued . he is deemed to have waived the right to such PI. He must further find there is a necessity of placing the accused under immediate custody in order not to frustrate the ends of justice. the judge has to transmit to the provincial prosecutor his resolution and entire records of the case. without personally determining the existence of probable cause by independently examining sufficient evidence submitted by the parties during the PI 2. in which case. he may not. the person arrested without a warrant may ask for a preliminary investigation by a proper officer. manual touching of the body. Cases not requiring preliminary investigation nor covered by the Rule on Summary Procedure The respondent or accused is not entitled to preliminary investigation in the following cases: • cases governed by the Rules on Summary Procedure. and the Secretary of Justice reversed the prosecutor’s finding of probable cause. 125 of the RPC. otherwise the court becomes a mere rubber stamp. Important: The rule is now that the investigating judge’s power to order the arrest of the accused is limited to instances in which there is a necessity for placing him in custody in order not to frustrate the ends of justice . the judge does not personally examine the complainant and the witnesses he may produce. 4. an inquest must be conducted by an inquest prosecutor who will determine whether his arrest without warrant is lawful. Invalid: A warrant issued by the judge solely on the basis of the report and recommendation of the investigating prosecutor. Execution of warrant 1. recall said order. but he must sign a waiver of the provisions of Art. The power belongs to the prosecutor. • While the trial court judge has the power to order the reinvestigation of the case by the prosecutor. Arrest includes submission to the custody of the person making the arrest. Thus. What the accused who believes that there is no probable cause to hold him for trial may do: • to file with the trial court a motion to dismiss on such ground or for the determination of probable cause. and if he finds probable cause on the basis thereof he issues the warrant for the arrest of the accused. what should the trial court do upon the prosecutor’s motion to dismiss? He must make his own assessment of the evidence and not just rely on the conclusion of the prosecutor. 8. the accused may file a motion to quash the arrest warrant or to recall the same on the ground of lack of probable cause. • Exception: when the accused has been lawfully arrested without warrant. 3. RULE 113 ARREST Definition of arrest Application of actual force.  In issuing this kind of warrant . The judge issues a warrant of arrest in 2 instances: • (1) Upon the filing of the information by the prosecutor. The inquest prosecutor may order the release of the arrested person if he finds no sufficient ground to hold him without prejudice to conducting further investigation. set the case for arraignment and trial. 6. 5. 2. issue a warrant of arrest. without gravely abusing his discretion. 1. In case a person is arrested without a warrant. physical restraint or formal declaration of arrest is not required. he cannot. 125 of the RPC.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) 1. It is not a pronouncement of guilt.

3. Section 8 Rule 15 provides that subject to the provisions of Section 1 Rule 9. In a citizen’s arrest . Purpose: • to honor the presumption of innocence until his guilt is proven beyond reasonable doubt • to enable him to prepare his defense without being subject to punishment prior to conviction. 4. The arresting officer may be held civilly liable for damages under Art. the same cannot be posted before custody over him has been acquired by the court. Section 26 of Rule 114 of the New Rules of Criminal Procedure provides that bail is not a bar to objection on illegal arrest. 2. a person in authority. to find out whether there exists probable cause.  In this kind of warrant . a report to the judge who issued the warrant. within 10 days from the expiration of the first 10-day period. 5(b) authorizes warrantless arrest “when an offense has in fact just been committed. who has. Embraced in custodial investigation:  invited for questioning  • re-enactment • • 6. the suspect is taken into custody. nor can it prevail over the constitutional right of the accused to be presumed innocent. Sec. civil or criminal. otherwise the warrant issued is null and void. • Rationale: it discourages and prevents resort to the pernicious practice whereby an accused could just send another in his stead to post his bail. the omnibus motion rule applies to motions to quash. and all objections not so included shall be deemed waived. when lawful 1. 5(b) refers to hot pursuit. Upon assumption of the obligation of bail. order. the confession of the accused is inadmissible. Presumption of regularity in the performance of duties: • Does not apply during in-custody investigation. Sec. without recognizing the jurisdiction of the court by his Not embraced in custodial investigation:  police line-up 9 . It is not necessary that there should be malice or bad faith. for dangerous weapons or anything which may be used as proof of the commission of an offense. He must subject the complainant and the witnesses to searching questions. 3.” The word “just” implies immediacy in point of time. • 2. The reason for this is there is yet no evidence on record upon which he may determine the existence of probable cause. These changes in the 1997 Rules of Civil Procedure are applicable to criminal cases as Section 3 Rule 1 thereof provides that “these rules shall govern the procedure to be observed in actions. Custodial investigation • Involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) • (2) Upon application of a peace officer. A warrant of arrest has no expiry date. Sec. • It is only after investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect. 5(a) refers to arrest in flagrante delicto while Sec. It remains valid until arrest is effected or the warrant is lifted. 3. When the threat or promise was made by. the sureties become in law the jailers of their principal. Jr. Delivery of the detained person to the proper judicial authorities means the filing of the complaint or information with the municipal trial court or with the inquest fiscal or prosecutor who shall then decide either to order the release of the detained person or to file the corresponding information in court.   ultraviolet ray examination normal audit examination by the COA of the accountability of a public officer 2. As bail is intended to obtain or secure one’s provisional liberty. 32 is that the wrong may be civil or criminal. The very nature of Art. On Civil Procedure: • Section 20 Rule 14 of the 1997 Rules of Civil Procedure provides in part that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. judgment or proceeding shall include all objections then available. lack of or irregular preliminary investigation. 4. RULE 114 BAIL Bail defined 1. 5. 2.” Moreover. the judge must personally examine the applicant and the witnesses he may produce. OR is supposed by the accused to have power or authority to fulfill the threat or promise. and special proceedings. This is an abandonment of the Cojuangco. 4 of Rule 113 requires the head of the office who applied for warrant to execute the same within 10 days from receipt thereof and for the arresting officer assigned to execute the same to submit. Method of arrest by officer without warrant 1. without need of a search warrant. Sandiganbayan ruling. • However. v. 32 of the Civil Code. Arrest without warrant. the person may be arrested and searched of his body and of his personal effects or belongings. a motion attacking a pleading. or in the presence of. and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate.

the accused may apply for bail or provisional liberty with the appellate court. Not entitled to bail: • An accused who has been convicted of an offense which carries a penalty of more than 20 years is not entitled to bail during the pendency of his appeal. After appeal is perfected. 6. the grant of bail before conviction by the trial court is a matter of discretion when evidence of guilt is strong. 3. if the decision of the TC convicting the accused changed the nature of the offense from non-bailable to bailable. reclusion perpetua or life imprisonment • after conviction by the RTC of a non-capital offense  prosecution is entitled to present evidence for its denial. Capital offense or an offense punishable by reclusion perpetua or life imprisonment. when discretionary 1. If the accused presents his notice of appeal. • 3. Meaning of “conviction” 10 . is not important. When bail is a matter of discretion: • before conviction. Capital offense defined The capital nature of an offense is determined by the penalty prescribed by law. appeal being perfected upon filing of a written notice of appeal and furnishing the adverse party copy thereof. 2. the trial court will order the accused to be taken into custody in the absence of a new bail bond on appeal duly approved by the court. • However if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable. and not by the penalty that may be imposed after trial and on the basis of the evidence adduced and the presence of aggravating or mitigating circumstance. Notice of hearing required: • Whether bail is a matter of right or of discretion . Conditions of the bail. as a matter of right. the trial court loses jurisdiction to grant bail and to approve bail bond. The surety’s liability covers all these 3 stages: • trial • promulgation • the execution of the sentence. exception 1. Summary of the evidence for the prosecution • The court’s order granting or refusing bail must contain a summary of the evidence for the prosecution. requirements 1. Even if there is no notice of appeal. Trial court may grant bail before appeal is perfected • Whether bail is a matter of right or discretion . 3. 7. When bail is a matter of right: • before or after conviction by the MTC • before conviction. Unless the court directs otherwise. Bail. as an exception to the general rule that an accused is entitled to bail except in a capital offense where the evidence of guilt is strong. It would be premature. The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of guilt is strong. the trial court may grant bail and approve the amount of the bail bond before the accused has perfected his appeal. the application for bail can only be filed with and resolved by the appellate court. Bail. 5. the bondsman must produce the accused on the 15th day from promulgation of sentence for service of sentence. the bail bond posted by an accused remains in force at all stages of the case until its final determination. 2. insofar as bail is concerned. in offenses punishable by death. for all offenses punishable by lower than reclusion perpetua  prosecution does not have the right to oppose or to present evidence for its denial. Bail in court-martial offenses:  The right to bail of an accused military personnel triable by courts-martial does not exist. If the accused does not appeal. reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail. 2. to file a petition for bail for someone whose freedom has yet to be curtailed. evidence for the prosecution which contains the judge’s evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense. not to say incongruous. • Why? because in both cases. • An accused who is convicted of a capital offense is no longer entitled to bail on appeal since his conviction imports that the evidence of guilt is strong. the application for bail can only be filed with and resolved by the appellate court. 4. Distinction between life imprisonment and reclusion perpetua. 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. Right to bail may be waived.  Rationale: The unique structure of the military justifies exempting military men from the constitutional coverage on the right to bail. • However. otherwise the order granting or denying bail may be invalidated because the summary of the 2.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) personal appearance therein and compliance with the requirements thereof. not bailable 1.

Forfeiture of bail Corporate surety The term of the bail bond is not dependent upon faithful payment of the bond premium. 1997). if he is unable to furnish bail and under circumstances envisaged in PD No. Jovellanos (280 SCRA 579.” 2. should make a finding that the evidence against the accused is strong. trial. or appeal. After conviction by the trial court. 2. if convicted. which has not become final. the accused fails to appear in person as so required.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) • The word “conviction” in Section 13. Duty of judge to conduct hearing: • Where the prosecution agrees with the accused’s application for bail or foregoes the introduction of evidence. Regarding minors charged with a capital offense: • If the person charged with a capital offense. and • current certificate of authority issued by the Insurance Commissioner with a financial statement showing the maximum underwriting capacity of the surety company. It is mandatory for the judge to conduct a hearing and ask searching and clarificatory questions for the purpose of determining the existence of strong evidence against the accused. instead of a surety bond. under the circumstances provided in RA No. 66 dated September 19. In Espiritu v. which would entitle him. and the order. The reason for this is that one who faces a probable death sentence has a particularly strong temptation to flee. 603 as amended. such as murder. or a criminal offense. • • • Bail. the court must nonetheless set the application for hearing. • affidavit of justification. two requisites must be satisfied: • production or surrender of the person of the accused within 30 days from notice of the order of the court to produce the body of the accused or giving reasons for its non-production • satisfactory explanations for the non-appearance of the accused when first required by the trial court to appear. after such hearing. as the accused still has the right to appeal. Article III of the 1987 Constitution refers to conviction by the trial court. The release of the accused may be on his own recognizance. in which case the court. 1996. It may be to a responsible person. To justify exemption from liability on a bail bond or reduction thereof. a light. in its discretion. may allow his release on his own recognizance where the accused has applied for probation. Justification of sureties 1. Burden of proof in bail application 1. despite due notice to the bondsmen to produce him before the court on a given date. “Evidence of guilt” in the Constitution and the Rules refers to a finding of innocence or culpability. where filed A judge presiding in one branch has no power to grant bail to an accused who is being tried in another branch presided by another judge who is not absent or unavailable. • 3. to a penalty next lower than that prescribed by law. 6036 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. and can only be released when the conviction is reversed by the appellate court. the following requisites must be complied with: • photographs of the accused. Deposit of cash as bail The trial judge has no authority to strictly require that only cash bond. the Court held that the release on recognizance of any person under detention may be ordered only by a court and only in the following cases: • when the offense charged is for violation of an ordinance. the imposable penalty of which does not exceed 6 months imprisonment and/or P2000 fine. which means that he has become his own jailer. the accused convicted of a capital offense is no longer entitled to bail. • authority of the agent. he is entitled to bail regardless of whether the evidence of guilt is strong. This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death. • clearance from the Supreme Court. When bail bond forfeited: Before accepting a surety or bail bond. and his act of releasing him on bail constitutes ignorance of law which subjects him to disciplinary sanction. be deposited for the provisional release of the accused. 11 . • certificate of compliance with Circular No. 2. regardless of the modifying circumstances. admittedly a minor.  Compliance with the first requisite without meeting the second requisite will not justify nonforfeiture of a bail bond or reduction of liability. Persons charged with offenses falling under the Rule on Summary Procedure may be released either “on bail or on recognizance of a responsible citizen acceptable to the court. Recognizance 1. • only in instances where the presence of the accused is specifically required by the court or the Rules of Court and. pending resolution of the case but no bail was filed or the accused is incapable of filing one in case of a youthful offender held for physical and mental examination.

by the grant of use-and-derivative-use immunity. but it was later discovered that his counsel was not really a lawyer. the penalty and the offense being within the purview of the Probation Law. • • Bail is not a bar to objections on illegal arrest. lack of or irregular preliminary investigation Important: An application for admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore. and the inference of one fact from proof of another shall not be so unreasonable as to be purely arbitrary. which must be shown clearly and convincingly where the law or the Constitution so provides. The accused cannot leave the country without the permission of the bondsmen and the court. as what is left is for him to serve the sentence. RULE 116 ARRAIGNMENT AND PLEA 12 . Where an accused was represented in the RTC by a person who claimed to be a lawyer and was thereafter convicted. Is the constitutional presumption of innocence violated by the presumption of guilt established by law arising from certain facts proved and by shifting to the accused the burden of proof to show his innocence? No. The sanctions of arrest and contempt in respect to disobedience to subpoena are not applicable to a witness who resides more than 100 kilometers from the residence to the place where he is to testify. Public trial should not be confused with trial by publicity which is proscribed. Regarding hold-departure orders: • Supreme Court Circular No. Requests by a party for the issuance of subpoenas do not require notice to other parties to the action. and the accused afforded the opportunity to be heard by counsel. 3. The state having the right to declare what acts are criminal. exception General Rule: no bail shall be allowed after the judgment has become final. one of which is 6. By its grant. The bondsmen who put the bail bond for the accused become the jailers and they or the police officer to whom authority is endorsed may arrest the accused for the purpose of surrendering him to the court. provided that he raises them before entering his plea. Neither does he have authority to cancel one which he issued. 39-97 dated June 19. • Exception: when he has applied for probation before commencing to serve sentence. 9. No bail after final judgment. 4. The right against self-incrimination is a protection only against testimonial compulsion. 11. or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him. during trial. then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction of the accused. it may still be recalled. Hence. following the maxim. where he has been denied the right to counsel during the hearing. MTC judges have no authority to issue hold-departure orders . 2. RULE 115 RIGHTS OF ACCUSED Rights of the accused at the trial 1. Exception to the exception: the accused shall not be allowed to be released on bail after he has commenced to serve his sentence. a witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution. and not during custodial or preliminary investigation. or if he is a detention prisoner no permission of the court in which his case is pending was obtained. 5. the waiver must be with the assistance of counsel. within certain defined limitations. 1997 limits the authority to issue hold departure orders to the RTCs in criminal cases within their exclusive jurisdiction. 8. Requisites for valid waiver of right: • existence of right • • • knowledge of existence thereof intention to relinquish such right. the constitutional presumption of innocence should tilt the scales in favor of the accused and he must be acquitted. to be valid. Consequently. 2. 10. Equipoise rule: • If the inculpatory facts and circumstances are capable of two or more explanations. Transactional and Use immunity distinguished: • Transactional immunity is broader in the scope of its application. he is entitled to have his conviction set aside and a new trial undertaken. consistent with the innocence of the accused and the other with his guilt. 7. The constitutional presumption of innocence will not apply as long as there is some rational connection between the fact proved and the ultimate fact presumed. a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. has a right to specify what act or acts shall constitute a crime. as well as what proof shall constitute prima facie evidence of guilt.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) Arrest of accused out on bail 1. where the evidence of the parties in a criminal case are evenly balanced. express mention implies the exclusion. The accused’s right to meet the witnesses face to face is limited to proceedings before the trial court. If the judgment of conviction had become final and executory. The court shall observe the matter as early as practicable but not later than the start of the trial of the case. In contrast.

Change of plea • After the prosecution has rested its case . “regardless of whether or not it is necessarily included in the crime charged. Rule 116 section 1(e) provides for a shorter time within which an accused who is under preventive detention should be arraigned. Definition: Arraignment is the stage where the issues are joined in criminal action and without which the proceedings cannot advance further or. • Certain laws and SC Circulars provide for a shorter time within which the accused should be arraigned:  RA 4908 – in criminal cases where the complainant is about to depart from the Philippines with no definite date of return. 5. 3. 2. The judge cannot on its own grant the change of plea. reception of evidence. even if the latter is not included in the offense charged. the trial court may allow the accused to plead guilty to a lower offense with solely the conformity of the trial prosecutor. his case should be raffled within 3 days from the filing of the information or complaint against him. The arraignment shall be held within 30 days from the date the court acquires jurisdiction over the person of the accused.. the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former information. necessarily included in the offense charged . An improvident plea means a plea without proper information as to all the circumstances affecting it. a free and intelligent plea . discretionary 1. Conviction in a capital offense cannot rest alone on a plea of guilty. Mitigating circumstances: • The trial court may allow an accused to plead guilty and at the same time allow him to prove other mitigating circumstances. No trial in absentia can be validly held without first arraigning the accused. how made 1. unless a shorter period is provided by special law or by SC Circular. violations of the Intellectual Property Rights Law – these cases must be tried continuously until terminated within 60 days from commencement of the trial and to be decided within 30 days from the submission of the case Plea of guilty to capital offense. a change of plea to a lesser offense may be granted by the judge. and deleted the phrase. It leaves the court with no alternative but to impose the penalty prescribed by law. 2. or is cognizable by a court of lesser jurisdiction than the trial court.e. heinous crimes. if what the accused would prove is an exempting circumstance. This is so even if the accused formally manifests that he waives presentation of evidence by the prosecution. which would amount to a withdrawal of his plea of Plea of guilty to a lesser offense 1. 3.” which is permissive and implies that the court may still allow an accused to plead guilty to a lesser offense.” • It should be noted. or the Speedy Trial Act. 2.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) Arraignment and plea. When an accused is detained. with the approval of the prosecutor and the offended party and only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged. However. 4. based upon a mistaken assumption or misleading information or advice. In case the offended party fails to appear despite due notice. It has been held that if the plea of guilty to a lesser offense is made without the consent of the prosecutor and the offended party. Such plea removes the necessity of presenting further evidence and for all intents and purposes the case is deemed tried on its merits and submitted for decision. What a plea of guilty includes: • The plea of guilty covers both the crime as well as its attendant circumstances alleged in the complaint or information. i. however. Consent of offended party required: • The consent of the offended party to allowing the accused to plead guilty to a lesser offense is necessary. if held. It is mandatory for the trial court to require the prosecution to present its evidence and. and the judge to whom his case is raffled shall have him arraigned within 10 days from receipt by the judge of the records of the case. that the amendment did not say that an accused may be allowed to plead to a lesser offense only if the same is necessarily included in the offense charged. The new rule provides that the accused may be allowed by the trial court to plead guilty to a lesser offense which is 13 . Plea of guilty to non-capital offense. RA 7610 (Child Abuse Act) – the trial shall be commenced within 3 days from arraignment Dangerous Drugs Law SC AO 104-96. and he cannot be arraigned without his personal appearance in court. the accused should be arraigned without delay and his trial should commence within 3 days from the arraignment and that no postponement of the initial hearing should be granted except on the ground of illness on the part of the accused or other grounds beyond the control of the court. to allow him to submit his evidence. if the accused so desires. Presence of offended party required • The presence of the offended party is now required at the arraignment and also to discuss the matter of accused’s civil liability. provides that the accused shall be arraigned within 30 days from the time a court acquires jurisdiction over his person. Accused under preventive detention • While RA 8493. reception of evidence 1. will otherwise be void. The pre-trial conference shall be held within 10 days after the arraignment. qualifying and/or aggravating the crime. The provision employs the word “may.    2.

• If the motion is granted. General Rule: A MTQ may be filed by the accused at any time before the accused enters his plea. it is not a final disposition of the case. Time for counsel de officio to prepare Express demand: • Counsel for the accused must expressly demand the right to be given reasonable time to consult with the accused. It is not the office of the bill of particulars to: • Supply material allegation necessary to the validity of a pleading • Change a cause of action or defense stated in the pleading. the trial court may not allow him to take the witness stand. 3. The right to file a MTQ belongs only to the accused. • • 3. Only when so demanded does denial thereof constitute reversible error and a ground for new trial. 3. Such inquiry into outside facts may also be allowed even when the ground invoked is that the allegation in the information does not constitute the offense charged. although both have one result. If the accused is permitted to present evidence after his plea of guilty to a non-capital offense and such shows that the accused is not guilty of the crime charged. There is nothing in the rules which authorizes the court or judge to motu propio initiate a MTQ by issuing an order requiring why the information may not be quashed on the ground stated in said order.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) not guilty. • A nolle prosequi is initiated by the prosecutor while a quashal of information is upon motion to quash filed by the accused. RULE 117 MOTION TO QUASH Time to move to quash 1. or that the doctrine of double jeopardy precludes the filing of the information. Thereafter. Rule 12 of Civil Procedure on bill of particulars is applicable in criminal proceedings. Additional evidence independent of the plea may be considered to convince the judge that it was intelligently made. with the approval of the court in the exercise of its judicial discretion. This means that a MTQ may still be filed after arraignment on the ground that the facts alleged in the information charge no offense. 2. 3. which adopts the omnibus motion rule. the accused must be acquitted. enumerated in Sec. Suspension of arraignment Tests to determine insanity: • the test of cognition (which is used in this jurisdiction) or the complete deprivation of intelligence in committing the criminal act • the test of volition or that there be a total deprivation of freedom of the will. The filing of a motion for bill of particulars suspends the period to file a responsive pleading. 9. • Bill of particulars 1. • Exception: under the circumstances mentioned in Sec. • If the motion is denied. the moving party has the remaining period or at least 5 days to file his answer from service of the bill of particulars. The withdrawal must at least have a rational basis. Withdrawal of improvident plea of guilty 1. It is not an acquittal. The motion should be set for hearing and the prosecution heard thereon. 2. he has the same period to file his responsive pleading from receipt of the order denying the motion. no MTQ can be entertained by the court. A nolle prosequi is a dismissal of the criminal case by the government before the accused is placed on trial and before he is called to plead. or to state a cause of action or defense other than the one stated. Effect: • change of the accused’s plea from guilty to that of not guilty is the setting aside of the judgment of conviction and the re-opening of the case for new trial. that the offense or penalty has prescribed. 2. It partakes of the nature of a nonuser or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution. for there is no rule which provides that simply because the accused pleaded guilty to the charge that his conviction automatically follows. and it does not bar a subsequent prosecution for the same offense. 3. The accused should state that he has a meritorious defense to the charge. which is the dismissal of the case. 14 . Rule 117. Form and contents “Factual and legal grounds” must be stated • This provision requiring that the “factual and legal grounds” be stated in the motion allows that facts outside the information itself may be introduced to prove any of the grounds of a MTQ. Quashal and nolle prosequi distinguished: • The quashal of complaint or information is different from a nolle prosequi. Set forth the pleader’s theory of his cause of action or a rule of evidence on which he intends to rely Furnish evidentiary information whether such information consists of evidence which the pleader proposes to introduce or of facts which constitute a defense or offset for the other party or which will enable the opposite party to establish an affirmative defense not yet pleaded. When it may be done: • at any time before the judgment of conviction becomes final.

the information concerning said felony cannot be filed on the next working day. Regarding prescriptive periods: Amendment of complaint or information • Where an accused has been found to have committed a lesser offense includible within the offense charged . • The period of a continuing crime’s prescription is counted from the latest or last act constituting the series of acts continuing the single crime. 1926. 2. as hypothetically admitted. he cannot be convicted of the lesser offense if it has already prescribed. • last day in the period of prescription of a felony falls on a Sunday or legal holiday. 10. capricious and whimsical exercise of discretion by a trial judge or where an appeal will not promptly relieve the aggrieved party from the injurious effect of the disputed order. This is without distinction as to whether the cases are covered by the Rule on Summary Procedure. the remedy being to file a motion for bill of particulars. where there is a patent. the notice of hearing should be addressed to adverse counsel or the prosecutor. and proof of service of the motion upon the adverse party or prosecutor at least 3 days prior to such hearing. or double jeopardy. prescription of offense or liability. A good tactical move may require that the accused should first plead to the information and thereafter file a motion to quash either before or after the prosecution has presented its • 15 . 3326 which took effect on December 4. In the very nature of things. as in the quashal of an information for incomplete preliminary investigation. and municipal ordinances is governed by Act No. as a substitute for the remedy of a lost appeal. 4. • 9. Regarding pardon: • Unless grounded on the person’s innocence . unlike a denial thereof. For this reason. the prescriptive period begins to run only from the discovery thereof. Contentious motions: • Contentious motions in criminal cases must comply with the requirements that they be set for hearing at a specified date with prior notice to the adverse party or the prosecutor at least 3 days before the hearing. But since pardon does not necessarily result in automatic reinstatement because the offender has to apply for reappointment. otherwise the information filed by him would be invalid and can be quashed on such ground. he is not entitled to back wages. the act can still be done the following day does not apply to the computation of the period of prescription of a crime. This is mandatory. with or without warrant. a pardon by the President cannot bring back lost reputation for honesty. The rule that if the last day falls on a Sunday or a holiday. integrity and fair dealing. Desierto. nor can a dismissal of the information on such ground put the accused twice in jeopardy. The prosecutor who signed the information must have territorial jurisdiction to conduct the preliminary investigation of the offense. the trial court should limit its inquiry to: • the averments in the information. The prescriptive period of offenses penalized by special laws and ordinances is interrupted only by the filing of complaint or information in court . otherwise on the date of its discovery. The amendment of the information to allege the element(s) not stated in the information is a material amendment. along with other grounds as otherwise such other grounds will be deemed waived if not included in the MTQ.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) Grounds 1. that is. Where ground for MTQ is illegal arrest: • If the accused believes that the arrest. 3. The period of prescription of violation of special laws or offenses not penalized by the Revised Penal Code but by special laws. The period of prescription does not run when the offender is absent from the Philippines. but the same can be done because the accused has not been arraigned. he should move to quash the information on such ground. • • facts admitted by the prosecution. 2. Doctrine of Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. is appealable. In a MTQ based on the ground that the facts alleged in the information do not constitute the offense charged. lack of jurisdiction over the offense. 11. this rule does not preclude the aggrieved party from filing a special civil action of certiorari. in which the rule is that if the 1. 6. An information does not charge an offense if one or more of its essential elements have not been alleged therein. the applicable statute requires that if the violation of the special law is not known at the time. and indubitable facts. is not generally a ground for a motion to quash. Remedy of aggrieved party • While an order granting a motion to quash. except no offense charged. To hold otherwise would be to sanction the circumvention of the law on prescription by the simple expedient of accusing the defendant of the graver offense. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. discovery of the unlawful nature of the constitutive act or acts. the prescriptive period shall commence to run on the day it was committed. • 8. is illegal. 7. The fact that the allegations in the complaint or information are vague or broad. 317 SCRA 272 (1999): • If the commission of the crime is known. acts made criminal by special laws are frequently not immoral or obviously immoral in themselves. as the offense has by then already prescribed. in connection with which there should be evidence. as the proper remedy.

In writing b. Important!: A trial court may not order a provisional dismissal of the case without the express consent of the accused and prior notice to the offended party. as in the issuance of bouncing check for estafa under the RPC and violation of BP 22. nor can it dismiss it provisionally without the express consent of the prosecutor. while the latter is malum in se. etc. where the accused has been sentenced to suffer a wrong penalty by the trial court. What is a pre-trial order? It is an order issued by the court reciting the actions taken. • the trial court has no jurisdiction over the offense charged. where one case is administrative in nature and the other criminal. on its own. • where 2 informations are filed charging the same accused with 2 different elements. 2000) 3.. even after he has entered his plea. Waiver of objections to admissibility of evidence e. Pre-trial Conference criminal cases. may still move to quash the information on the ground that it does not charge an offense. Neither does it apply in preliminary investigations. it has been held that conviction for the crime of illegal recruitment under the Labor Code does not preclude punishment for the offense of estafa under the RPC. and • double jeopardy has attached. Failure to move to quash or to allege any ground therefor The accused may still file a motion to dismiss the information based on the following grounds even if he has already pleaded not guilty: • the information charges no offense. 4. the prosecution may not be permitted to correct the information because the accused has already pleaded and to allow such amendment may place the accused twice in jeopardy. if it is predicated on insufficiency of the prosecution evidence or denial of the right to a speedy trial. Other matters which will promote a fair and expeditious trial What are the requisites of pre-trial agreements and admissions (stipulation of facts)? a. 5. If the counsel for the accused or the prosecutor does not appear at the pre-trial and does not offer an acceptable excuse. 9 of Rule 117. • In such pre-trial. where after trial of a charge of serious physical injuries. The purpose of requiring the accused to sign the stipulation of facts is to further safeguard his rights against improvident or unauthorized agreement or admission which his counsel may have entered into without his knowledge. (People vs. the following are considered: a. provisionally dismiss the case. 2. Signed by the accused and counsel • The agreements covering matters referred to in section 1 of this Rule (plea bargaining. shall become permanent 1 year after issuance of the order without the case having been revived. the facts stipulated and the evidence marked 16 . Former conviction or acquittal.. • …when the complaint or information is dismissed by a court of competent jurisdiction after the prosecution has presented its evidence even if the dismissal is in the mistaken ground of lack of jurisdiction.  Thus. he may be penalized by the court. cannot. Pursuant to Sec. The trial court. • the penalty or the offense has been extinguished. Modification of order of trial if accused admits the charge but interposes lawful defense f. the dismissal has the effect of acquittal.  Reason: the former is malum prohibitum. 2. or upon his own motion. With respect to offenses punishable by imprisonment of more than 6 years. double jeopardy 1.) need to be approved by the court. Uy. RULE 118 PRE-TRIAL 1. the dismissal was null and void because the trial court should have rendered judgment based on the charge alleged in the information and the evidence adduced during the trial.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) evidence. If the case is dismissed on such ground. Identification of evidence d. Important!: The provisional dismissal of offenses punishable by imprisonment not exceeding 6 years or a fine of any amount. as it believed that what was proved was frustrated murder. • • • Provisional dismissal 1. Double jeopardy will apply. is mandatory in 2. it did not place the accused twice in jeopardy for the continuation of the proceedings for serious physical injuries. which also constitutes an offense under the Revised Penal Code. Stipulation of facts c. Double jeopardy will not apply… • … in case of a conviction of a crime under a special law. the municipal trial court dismissed the case to give way to the filing of a complaint for frustrated murder. their provisional dismissal shall become permanent 2 years after issuance of the order without the case having been revived. Since the dismissal was null and void. • …even if the dismissal is made with the express consent of the accused. or both. an accused. the petition for certiorari filed by the prosecutor to correct the penalty which should be lower than that imposed does not place the accused twice in jeopardy because it would shorten the penalty and is favorable to the accused. In both instances. Plea bargaining b.

What are the effects of trial in absentia? The accused waives the right to present evidence and cross-examine the witnesses against him. 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. otherwise. Such order binds the parties and limits the trial to those matters not disposed of. Delay resulting from extraordinary remedies against interlocutory orders iv. The case. The trial shall commence within 30 days from receipt of pre-trial order. 2.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) during the pre-trial conference. Landicho. he shall have 15 days to prepare for trial which includes pretrial. Exception: If the 30-day period becomes impractical due to unavailability of the witnesses and other factors. however. except where he unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial. there’s denial of due process) a. is novel. His failure to appear is unjustified a. 4. Delay resulting from other proceedings concerning the accused including but not limited to: i. The purpose of trial in absentia is to speed up the disposition of criminal cases. Delay resulting from the existence of a prejudicial question vii. (People vs. 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. and be barred from questioning the same later. Requisites of Trial in Absentia (if not present. however. Whether the failure to grant continuance would make a continuation of the proceeding impossible or result in a miscarriage of justice. 6. Time Limit Following an Order for New Trial • General Rule: After an order for new trial is issued. unusual and complex. Agbulos. 3. 2. Delay resulting from continuance granted by the court motu propio 2. or it is unreasonable to expect adequate preparation within the periods of time established therein. RULE 119 TRIAL 1. Delay resulting from pre-trial proceedings provided not exceeding 30 days v. Delay resulting from other criminal proceedings against accused iii. Trial in Absentia 1. 1993) 3. Delay resulting from mental incompetence or physical inability of the accused to stand trial d. The trial shall be continuous (day to day as far as practicable) and the entire trial period shall not exceed 180 days except as otherwise authorized by the Supreme Court. From the day when the accused pleads not guilty upon arraignment. He may. Delay resulting from physical or mental examination ii. he will be deemed to have waived. Exclusions in the Computation of Time 1. as a whole. Delay attributable to any period not exceeding 30 days and the accused is under advisement b. Delay resulting from orders of inhibition or proceedings for change of venue vi. 1996) The accused’s waiver does not mean. it may be extended by the court but in no case should it • 17 . the trial commences within 30 days from notice of the order. The trial judge does not lose jurisdiction to try the case after the 180-day limit. The trial may be postponed for a reasonable period of time and for good cause as may be granted by the court. What if the accused believes that the pre-trial order contains mistakes or matters which were not taken up during the pre-trial? He must move to correct the mistake or modify the pre-trial order. The accused has been arraigned b. (People vs. be penalized with disciplinary sanctions for failure to observe the prescribed limit without proper authorization by the Supreme Court. If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense. Reasonable period of delay when accused is joined for trial with co-accused f. e. He has been notified of the trial c. The following periods shall not be included in the computation of time of trial: Factors for Granting Continuance 1. Delay resulting from absence unavailability of an essential witness or c.

if any. 3. Willfully fails to proceed without justification. knowing it to be frivolous and without merit. if any. Public Attorney or the Prosecutor • Acts which will evoke the sanctions: 1. 2. 4. the public attorney has a duty to obtain the presence of the prisoner for trial or cause 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. in the proper case. Furthermore. If the accused is imprisoned. and within 30 days from the receipt of the pre-trial order. the custodian should public attorney of such 3. Arraignment must be set within 30 days from the date the court acquires jurisdiction over the person of the accused. • • The accused presents evidence to prove his defense and damages. • Pervasive and prejudicial publicity may deprive an accused of his right to a fair 18 . 3. Private Defense Counsel – fine not exceeding P20. Section 1g). the public attorney should then seek to obtain the presence of the prisoner for trial. 2. Sanctions Imposed on Private Counsel. 000 + criminal sanctions. If he is not brought to trial within the period specified. 4. but the prosecution may call witnesses other than as listed even when the latter heard the testimonies of other witnesses. If the trial. the trial must be commenced. the case is deemed submitted for decision. 2. The accused should be brought to trial within 30 days from the date the court acquires jurisdiction over the person of the accused (Rule 116. Upon notification. the court must set the case for pre-trial. The order of trial is intended to safeguard the right of the accused to be presumed innocent until the contrary is proved. Order of Trial 1. at the discretion of the judge . Order of Trial • Prosecution presents evidence to prove the charge and. Knowingly allowing the case to be set on trial without disclosing that a necessary witness would be unavailable. The accused has the right to demand from the prosecution the list of prosecution witnesses. Public Attorney or Prosecutor – fine not exceeding P5. he may quash the information on the ground of denial of his right to speedy trial. the civil liability. This means that it must be allowed to completely present its evidence. 2. in furtherance of justice. The custodian will the latter’s right prisoner demands then inform the demand. 000 + criminal sanctions. Due Process • The prosecution is entitled to due process. may present rebuttal and sur-rebuttal evidence unless the court. then the defense. if any. if the accused admits the act or omission charged in the complaint or information but interposes a lawful defense. Failure to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under Section 9. The prosecution. 3. Counsel de officio. Speedy Trial 1. The order of the trial may be modified.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) exceed 180 days from notice of said order for new trial. the prosecution has the discretion to choose the order of its witnesses. Rule 120.” to trial • 2. permits them to present additional evidence. Knowingly makes a false statement in order to obtain continuance. Public Attorney’s Duties Where Accused is Imprisoned 1. Defense Counsel or Prosecutor – denial of the right to practice before the court trying the case for a period not exceeding 30 days + criminal sanctions. then inform the prisoner of to demand trial. and within the same period. • The Sanctions: 1. Files a motion solely for delay. • The sanctions are designed to speed up the trial and disposition of the cases and to encourage the lawyers to go to court ready for trial and not “ready to postpone. Upon admission of the evidence by the parties. 5. if any.

however. Make available in a simple. viii. Who should make the examination? The examination should be taken before a judge or a member of the Bar in good standing so designated by the judge. time and place. Such examination should be in the presence of the accused or in his absence after reasonable notice to attend the examination has been served on him. 3. convenient and inexpensive way. it may order the witness to post bail in such sum as may be deemed proper. Greater assistance to the parties in ascertaining the truth and checking and preventing perjury ii. or • Has to leave the Philippines with no definite date of return. there must be allegation and proof that the judge has been unduly influenced. in open court. facts which otherwise • If the court is satisfied upon proof or oath that a material witness will not testify when required. the court shall imprison him until he complies or is legally discharged after his testimony has been taken. Expedite litigation vi. Examination of child witnesses is tackled under the Rule on Examination of a Child Witness which took effect on December 15. The said order should be served on the prosecutor at least 3 days before the scheduled examination. However. • 2. To warrant such a finding. Expedite and facilitate both preparation and trial • The court shall issue an order directing that the witness for the accused be examined at a specific date. Simplify issues and narrow the 6. If the witness refuses to post bail. fraudulent claims and defenses iii. Application for Examination of Witness for Accused Before Trial • The accused may have witnesses conditionally examined in his behalf. but must also appear impartial. The witness for the prosecution may be conditionally examined by the court where the case is pending if said witness is: • Too sick to appear at the trial. Examination of Witness for the Prosecution 1. or under a general law or court rule on the subject. Undue Interference • There is undue interference by the judge if he propounds questions to the witnesses which will have the effect of or will tend to build or bolster the case for one of the parties. 2000. The motion shall state:  Name and residence of the witness  Substance of his testimony  The witness is sick and cannot attend trial or he resides more than 100 km from the place of trial and has no means to attend the same The motion should be supported by affidavit of the accused and such other evidence as the court may require. this does not mean that the judge must remain passive during the proceedings. but in pursuance of a commission to take testimony issued by a court. and reduced to writing and duly authenticated. Purpose: The purpose of taking depositions are to: i. It’s the judge’s prerogative and duty to ask clarificatory questions to ferret out the truth.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) trial. • • • Bail to Secure the Appearance of Material Witness Examination of Defense Witnesses Deposition • Definition: Deposition is the testimony of a witness taken upon oral questions or written interrogatories. could not be proved except with greater difficulty iv. and intended to be used in preparation and upon the trial of a civil or criminal prosecution. Provide an effective means of detecting and exposing false. It may also be made before an inferior court designated in the order of a superior court. Prevent delay vii. • Judges must not only be impartial. Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements v. Joint Trial 19 .

3. When two or more defendants are jointly charged with any offense. cannot be considered on appeal. the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor. Accused does not appear to be the most guilty • Means that he does not appear to have the highest degree of culpability in terms of participation in the commission of the offense and not necessarily in the severity of the penalty imposed. Where there is. or for crimes necessarily included in or necessarily including those offense. only the accused presenting evidence has to be present. Use-And-Derivative-Use-Immunity – witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution. especially where it is sought after the presentation of the evidence of the prosecution. 2. g. The application for discharge is filed by the prosecution before it rests its case c. Accused has not been convicted of any offense involving moral turpitude. the said accused shall not be discharged if there appears to be good cause to detain him. If there appears to be good cause to detain the accused. In such separate trial. • Where an accused has been discharged to be utilized as state witness and he thus testified. Mistake in Charging the Proper Offense 1. Any question against the order of the court to discharge an accused to be used as state witness must be raised in the trial court . 5. b. it Exclusion of the Public • The public may be excluded from the courtroom when evidence to be produced is offensive to decency or public morals. The discharge of an accused to be a state witness amounts to an acquittal and is a bar to future prosecution for the same offense. unless the court in its discretion upon motion of the prosecution or any of the defendants orders a separate trial. When. 3. without need for the trial court to issue an order to that effect. joint trial is automatic. the court shall commit the accused and dismiss the original case upon the filing of the proper information. at any time before judgment . Appointment of Acting Prosecutor • When a prosecutor. There is no other direct evidence available for the proper prosecution of the offense e. a showing of grave abuse of discretion. the order of the trial court may be challenged in a petition for certiorari and prohibition. State Witness 1. it becomes manifest 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. Two or more persons are jointly charged with the commission of an offense b. Where the conditions are fulfilled. And the evidence to be adduced by each accused should not be considered as evidence against the other accused. however. • The fact that there was conspiracy does not preclude one from being discharged as a state witness. Requisites to be a state witness: a.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) 1. 2. 4. his assistant or deputy is disqualified to act. Consolidation of Trials of Related Offenses 20 . the fact that the discharge was erroneous as the conditions for discharge were not complied with did not thereby nullify his being precluded from reinclusion in the information or from being charged anew for the same offense or for an attempt or frustration thereof. 2. Absolute necessity for the testimony of the accused d. The defense should be afforded opportunity to oppose the motion to discharge an accused to be a state witness. they shall be tried jointly. Testimony of the accused can be substantially corroborated in its material points f. Transactional immunity – witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. and not merely the fact that in law the same or equal penalty is imposable on all of them. The grant of separate trial rests in the sound discretion of the court and is not a matter of right to the accused. Two types of witness immunity a. What the court takes into account is the gravity or nature of acts committed by the accused to be discharged compared to those of his co-accused.

and the aggravating or mitigating circumstances attending the commission. it can be rescinded without prejudicing the rights of the accused. The judge can rely on the transcript of stenographic notes taken during the trial. whether true or not. An order denying the motion for leave of court to file a demurer shall not be reviewable by appeal or by certiorari before judgment . If there are two or more accused and only one of them presents a demurrer to evidence. It is a judicial act which settles the issues. 1 of the Constitution requires that the decisions of the court shall contain the facts and the law on which they are based. and is regarded as the sentence of the law pronounced by the court on the action or question before it. 2. accused waives right to present evidence 3. clear congested dockets. simplify the work of the trial court. The rationale is that the losing party is entitled to know why he lost. 5. Requisites: a. While consolidation of cases and joint trial of related offenses and the rendition of a consolidated decision are allowed.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) 1. judge may. without leave of court. The judge who penned the decision need not be the one who heard the case. Definition: Demurrer to evidence is an objection by one of the parties in an action. 2. Contents of Judgment 1. and save unnecessary cost or expense. 2. Legal qualification of the offense constituted by the acts committed by the accused. The purpose of consolidation is to avoid multiplicity of suits. The penalty imposed upon the accused 4. Accused files demurrer with or without leave of court c. Signed by him d. to make out a case or sustain the issue. Article VIII. 2. 3. he can still present evidence Without leave – if the motion is denied. whether as principal. Charges for offenses founded on the same facts or forming part of a series of offenses or similar character may be tried jointly at the court’s discretion. in short. It has no legal force and effect. Definition: 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. • 3. Written in official language b. the court cannot convict an accused of a complex crime constitutive of the various crimes alleged in the consolidated cases. motu proprio or upon motion. As such. 21 . If the demurrer is denied: • With leave of court. guard against oppression or abuse. to the effect that the evidence which his adversary produced is insufficient in point of law. Participation of the accused in the commission of the offense. he loses the right to present evidence and the case will be deemed submitted for decision Reopening of Case • At any time before finality of judgment of conviction. and determines the proceeding. prevent delay. the case may be dismissed in any of the following manner: a. After the prosecution shall have rested its case. Demurrer to Evidence 1. Section 14. so he may appeal to a higher court. the attainment of justice with the least expense and vexation to the parties litigant. the trial court may defer resolution thereof until the decision is rendered on the other accused. fixes the rights and liabilities of the parties. Contains clearly and distinctly a statement of the facts and the law upon which it is based • A verbal order does not meet the requisites. Court on its own initiative can dismiss the case after giving prosecution opportunity to be heard b. RULE 120 JUDGMENT Judgment 1. with hearing in either case reopen to avoid miscarriage of justice. With or Without Leave of Court • • With leave – if the motion is denied. accomplice or accessory 3. par. if any. accused can present his evidence • Without leave of court. Personally and directly prepared by the judge c. This is because demurrer is merely interlocutory.

General Rule: Promulgation should be made in the presence of the accused and the judge of the court who rendered the decision. Acquittal vs. or a dismissal of the case after the prosecution has rested its case and upon motion of the accused on the ground that the evidence produced fails to show beyond doubt that the accused is guilty. the court shall order his arrest and he shall lose the remedies available in the Rules against the judgment. Definition: Promulgation of judgment in criminal cases is the reading of the judgment or sentence in the presence of the accused and the judge of the court who rendered it. or the evidence does not show that the offense was committed within the territorial jurisdiction of the court. he is deemed to have waived the defect. However. He may be found guilty for as many offenses as alleged in the complaint or information as may have been duly proved. if the accused does not object to the duplicity before he enters his plea. An offense charged is necessarily included in the offense proved. the accused may be validly convicted of such offense proved. 6. Civil liability or damages caused by the wrongful act to be recovered from the accused by the offended party. 22 . 3. or b. Acquittal and Dismissal 1. Acquittal of an accused based on reasonable ground does not bar the offended party from filing a separate civil action based on a quasidelict. accused has applied for probation. 7. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former constitute the latter. 2. General Rule: If the prosecution proves an offense included in the offense charged in the information. that is. 4. It is the filing of the decision or judgment with the clerk of court which gives it validity and binding effect. 4. or c. Promulgation of Judgment 1. or d. 3. the court may hold an accused civilly liable even when it acquits him. Variance Between Allegation and Proof 1. If judgment is one of conviction and the accused is absent without justifiable cause. 2. 3. 3. 2. A judgment promulgated at a time when the judge who rendered and signed it had ceased to hold office is null and void. unless the enforcement of the civil liability by a separate civil action has been reserved or waived. when the essential ingredients of the former constitute or form part of those constituting the latter. Dismissal • Acquittal is always based on the merits while in dismissal. Where the dismissal is based on the denial of the right to a speedy trial 4. in which case the accused may appear through counsel or representative 5. A judgment of conviction may be modified or set aside before it becomes final or before appeal is perfected. Exception: When the Death Penalty is imposed by the trial court. When the judge is absent or outside the province or city. the accused is acquitted because the evidence does not show that his guilt is beyond reasonable doubt.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) 4. after the lapse of the period for perfecting an appeal. General Rule: A judgment becomes final: a. Modification of Judgment 1. Acquittal is a finding of not guilty based on the merits. there is termination not on the merits and no finding of guilt is made either because the court is not a court of competent jurisdiction. In fact. if there is any. Here the dismissal is based on a demurrer to evidence b. Exception to the Mandatory Presence of the Accused: a. or the complaint or information is not valid or sufficient in form and in substance. the judgment may be promulgated by the clerk of court. Where the conviction is for a light offense. Exception: The general rule does not apply where facts supervened after the filing of the information which changes the nature of the offense. the SC automatically reviews the decision. Judgment for Two or More Offenses • A complaint or information must charge only one offense. when the accused has waived in writing his right to appeal. Dismissal may amount to a acquittal: a. 2. when the sentence has been partially or totally satisfied or served.

When the new trial is granted on the ground of errors of law or irregularities committed during trial. all proceedings and evidence affected thereby shall be set aside and taken anew. Errors of law or irregularities prejudicial to the substantial rights of the accused a. 2. Probation is a mere privilege and is revocable before final discharge of the probationer by the court.Affidavit of desistance/recantation. CA states that if the negligence or mistake of counsel is so gross as to deprive the client of his right to due process of law. evidence is material and would probably change the judgment if admitted The following are not considered as newly discovered evidence: . 2. errors/irregularities are prejudicial to the substantial rights of the accused The following are not considered as irregularities: . Supported by affidavits of witnesses (if based on the ground of newly discovered evidence) d. The case of People vs. evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence c. Double Jeopardy • The grant of a New Trial is not appealable since it is not a final judgment. a petition for certiorari and prohibition may be filed. RULE 121 NEW TRIAL OR RECONSIDERATION Filing of New Trial or Reconsideration 1. RULE 122 APPEAL Who may appeal Any party may appeal. 4. Erroneous Applies • Acquittal.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) Probation 1. the case of Navarra vs. Relief 23 . the latter shall be taken and considered together with the evidence already in the record. 3. Hernando states that erroneous acquittal of the accused remains as the final verdict. Errors of fact in the judgment Form of Motion and Notice to Prosecutor • The motion must: a. Merely forgotten evidence. How to Appeal  To the RTC 1. will not defeat a plea of antrefois acquit. Grant of a New Trial is not Appealable. errors of law or irregularities committed during trial b. 2. evidence discovered after trial b. The case shall be tried de novo and a new judgment be rendered accordingly. The period to file an application for probation is after the accused shall have been convicted by the trial court and within the period for perfecting an appeal. Original judgment shall be set aside. New and material evidence has been discovered a. Grounds for Reconsideration 1. Filed by the accused. file a Notice of Appeal with the court which rendered the judgment 2. Be in writing b. To challenge such grant. State the grounds on which it is based c. Be given to the prosecutor 2. Grounds for New Trial 1. Errors or irregularities. serve a copy of the notice upon the adverse party Although the Rules of Court enumerates only the above two as the grounds for new trial. The court may allow introduction of additional evidence. Errors of law in the judgment 2.Loss of records (remedy is reconstitution of missing evidence) Loss of stenographic notes (remedy is reconstruction of the testimony of the witness) Effects of Granting a New Trial or Reconsideration 1. the accused may be entitled to a new trial. unless accused will be placed in double jeopardy. Proposed testimonies of witnesses. Before final judgment of conviction or during appeal. When the new trial is granted on the ground of newly discovered evidence. which do not render the proceedings a nullity.

ZPG REMEDIAL LAW (CRIMINAL PROCEDURE)   To the CA When RTC jurisdiction: exercised original  The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment. b. The Court of Appeals shall give precedence in the disposition of appeals of accused who are under detention. when RTC exercised appellate jurisdiction: c. follow Rule 42 on Petition for Review d.case decided based on affidavits submitted by the parties  2. Serve a copy of the notice upon the adverse party When RTC exercised appellate jurisdiction: Follow Rule 42 on Petition for Review  Sandiganbayan 1. except if the judgment is favorable and applicable to the latter. Upon perfection of the appeal. where RTC imposes death penalty a. This period shall be suspended from the time a motion for new trial or reconsideration is filed until notice of overruling the motion has been served upon the accused at which time the balance of the period begins to run. where RTC imposes reclusion perpetua or life imprisonment a. Effect of appeal by any of several accused  An appeal taken by one or more of several accused shall not affect those who did not appeal. Judgment of the lower courts shall be reversed or modified only when the Court of Appeals is of the opinion that error was committed which injuriously affected the substantial rights of the appellant after it examined the record and evidence adduced by the parties. file an ordinary appeal b. for questions of facts and law c. Withdrawal of appeal • The courts may allow the appellant to withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court. file a Notice of Appeal with the RTC a. 1. RULE 123 PROCEDURE IN THE MUNICIPAL TRIAL COURTS 1.criminal case where the penalty prescribed does not exceed 6 months imprisonment or a fine of P1. follow Rule 45 on Petition for Review on Certiorari When appeal to be taken • Appeal is taken within 15 days from promulgation of the judgment. • General Rule The procedure in the Regional Trial Court shall be applicable to the procedure in Metropolitan Trial Courts. automatic review of SC as provided by sec. Serve a copy of the Notice upon the adverse party 2. • 24 . follow Rule 42 on Petition for Review SC 1. File a Notice of Appeal with the RTC 3.complaint or information filed directly in court without need of a prior preliminary investigation or preliminary examination C) . for questions of law (all other appeals) e. for CA decisions a. serve a copy of the notice upon the adverse party b. 10 of Rule 122 3. • • RULE 124 PROCEDURE IN THE COURT OF APPEALS Court of Appeals • • The Court of Appeals has no jurisdiction without judgment of conviction. the execution of the judgment appealed from shall be stayed as to the appealing party. It shall hear and decide the appeal at the earliest practicable time with due regard to the rights of the parties. and Municipal Circuit Trial Court. Exceptions Particular provision is made applicable only to such courts In cases governed by the Rule on Summary Procedure A) . file a Notice of Appeal with the RTC. when RTC exercised original jurisdiction: 2. Municipal Trial Courts. in which case the judgment shall be final.000 or both B) .

Upon the death of an accused pending appeal from his conviction. involving claims for damages arising from provisional remedies. 2. a certified true copy of the judgment shall be attached to the original record which shall be remanded to the clerk of court from which the appeal was taken.Appealed judgment becomes final. Should the Court of Appeals impose the penalty of death. Calayca states that the appellate court may reverse the trial court’s decision on the basis of grounds other than those that the parties raised as errors. When the accused appeals a judgment of conviction. receive evidence and perform any and all acts necessary to resolve factual issues raised in cases: • appellant. or dismiss the case. the criminal action is extinguished. or modify the judgment. where the court grants a new trial based only on the ground of newly discovered evidence. Appellant fails to file his brief within the time prescribed. and the civil aspect instituted therewith for recovery of civil liability ex delicto is ipso facto extinguished. or c. A motion for reconsideration shall be made within 15 days after notice of the decision or final order of the Court of Appeals. b. reclusion perpetua. party may just file a separate civil case against the estate of the accused who died. The appellant may move for a new trial any time after the appeal from the lower court has been perfected and before the judgment of the Court of Appeals convicting him becomes final. the Presiding Justice shall direct the raffle committee of the Court to designate two additional Justices in the division hearing the case and the concurrence of a majority of such division shall be necessary for the pronouncement pf a judgment or final order. He may be appointed upon the request of an Power of the Court of Appeals • The Court of Appeals may reverse. but every circumstance in favor of the accused should be considered. with notice to the appellant • Grounds a. The accused is without counsel de parte on appeal. a. It shall have the power to try cases and conduct hearings. increase or reduce the penalty imposed. or life imprisonment after discussing the evidence and law involved. It is discretionary on its part whether or not to set a case for oral argument. Appointment of Counsel de Officio A counsel de officio is a court appointed lawyer to the accused. 1. affirm. the case is certified and immediately elevated to the Supreme Court for review.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) • Although not often done in the judicial system. b. jumps bail. Appellant escapes from prison or confinement. He is appointed if it appears from the record of the case that: a. 10 days from receipt of the notice to file brief and the latter establishes his right to have one. upon motion of the appellee or motu propio b. he waives the constitutional safeguard against double jeopardy. The accused signed the notice of appeal himself. The other When the entry of judgment of the Court of Appeals is issued. The accused is confined in prison. In the event that there is no unanimous vote. or c. • Judgment of the Court Trial/Reconsideration • of Appeals/New Accused Appellant • An accused-appellant may change his theory on appeal. • • • • RULE 125 PROCEDURE IN THE SUPREME COURT 25 . remand the case for new trial or re-trial. • Effect . except when he is represented by a counsel de oficio. or flees to a foreign country during pendency of the appeal. Quorum and Voting of the Court of Appeals • • Three Justices constitute a quorum for the sessions of a division Unanimous vote of the 3 Justices of a division shall be necessary to pronounce a judgment or a final resolution. falling within its original jurisdiction b. the case of People vs. thus the case opens the whole action for review on any questioning including those not raised by the parties. Dismissal of Appeal for Abandonment or Failure to Prosecute • Requirement a.

-bond is cancelled and accused shall be placed in confinement pending resolution of his appeal • • • When. A case is reheard when the court en banc is equally divided in opinion or necessary majority cannot be had. the whole case is for review • It becomes the duty errors found in the from • is appealed to the then thrown open of the SC to correct judgment appealed SC may correct errors whether they are made the subject of assignments or error or not REHEARING OF CRIMINAL CASE IN THE SUPREME COURT 1. to the court of origin. the ff. Bondsman shall inform this court of fact of surrender. A case may reach the SC for final adjudication in the following manner: • Automatic review  In all cases where death penalty is imposed by the trial court  Records shall be forwarded to the SC for automatic review and judgment Ordinary appeal  Where penalty imposed is life imprisonment  Applicable also where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed  In both cases. unless otherwise provided by the Constitution or law 2. • If division of opinion or lack of required votes refers to the propriety of imposing 6. If rehearing en banc no decision is reached. his bond shall be forfeited and an order of arrest shall be issued by this court. 2. judgment of conviction of lower court shall be reversed and accused is acquitted. and after trial is convicted by the trial court of the offense charges or 26 . and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or info – same rule set forth in the preceding paragraph shall be applied. in criminal cases pending appeal before the SC. RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the PNP as the accused shall remain under confinement pending resolution of his appeal. Effect of appeal on the bail of the accused: • When accused is charged with offense which under the existing law at the time of its commission and time of application for bail is punishable by a PENALTY LOWER THAN RECLUSION PERPETUA and is out on bail. Questions of law and fact come within the jurisdiction of the CA 5. case is directly appealable to the SC by filing a notice of appeal Petition for review on certiorari  General Rule: judgments of RTCs may be appealed to the SC only by petition for review on certiorari in accordance with Rule 45 of the Rules of Court  Exception: Criminal cases where penalty imposed is life imprisonment or reclusion perpetua • of a lesser offenses than that charged in the complaint or information. When accused is charged with CAPITAL OFFENSE of an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged. If accused – appellant is not surrendered within the aforesaid period of ten (10) days. A direct appeal to the SC on questions of in criminal cases in which penalty imposed is not death or life imprisonment precludes the review of the facts 4. ii. Procedure in the SC in appealed cases is the same as in the CA. he is allowed to remain free on his original bail pending the resolution of appeal – unless the proper court directs otherwise When accused is charged with CAPITAL OFFENSE or which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail. 8 Rule 124 of Rules of Court as he shall be deemed to have jumped his bail 3. Court shall order the bondsman to surrender the accused within 10 days from notice. rules are laid down: i. When a criminal case SC. Then the court shall cancel the bond.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) 1. accused is still on provisional liberty. iii. • Appeal taken by the accused shall also be dismissed under Sec.

had committed. and Bring it before the court 6. 9. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify under it. Kinds of personal property to be seized: • Subject of the offense. buildings or other premises. The fact that a thing is a corpus delicti of a crime does not justify the seizure without a warrant 8. 5. in a general manner • • 3. the more reasonable the conclusion of establishment of probable cause 7. it is VOID • • • The proceedings upon search warrants must be absolutely legal It will always be construed strictly without going the full length of requiring technical accuracy. • • • Signed by judge in the name of the People of the Philippines. or of his person. and the time of making the affidavit – The nearer the time at which the observation of the offense is alleged to have been made. It is INTERLOCUTORY in character – it leaves something more to be done. 4. Section 2 Article III of the 1987 Constitution is the constitutional basis of the rule on search and seizure Requisites for the issuance of a valid search warrant a. the determination of the guilt of the accused A good and practical rule of thumb to measure the nearness of time given in the affidavit as to the date of the alleged offense. being gambling devices B. It s not necessary that there be arrest or prosecution before seizure could be affected D. Property seized is not required to be owned by the person against whom the search warrant is directed C. that are in themselves sufficient to induce a cautious man to believe that the person against whom the search warrant is applied. and • The means used or intended to be used for committing an offense • Search warrants have been allowed to search for the ff:  Stolen goods  Those supposed to have been smuggled into the country in violation of the revenue laws  Implements of gaming and counterfeiting  Lottery tickets  Prohibited liquors kept for sale contrary to law  Obscene books and papers kept for sale or circulation  Powder and other explosive and dangerous materials so kept as to endanger public safety  Slot machines. •    2. or is about to commit. Elements of a search warrant • An order in writing. it is not for the maintenance of any private right. PERSONAL PROPERTY TO BE SEIZED A. • Proceeds or fruits of the offense. with a view of some evidence of guilt to be used in the prosecution of a criminal action for some offense with which he is charged Ordinarily implies a request by an officer of the law Seizure it is the physical taking of a thing into custody Contemplates a forcible disposition of the owner RULE 126 SEARCH AND SEIZURE 1. a crime • General warrant: • A process which authorizes the search and seizure of things. Probable cause • It is such facts and circumstances antecedent to the issuance of the warrant. Search distinguished from seizure • Search 27 . and bring the person in whose custody they are found. Commanding a peace officer to search for personal property. Nature of a search warrant • It is in the nature of criminal processes and may be invoked only in furtherance of public prosecutions • • Have no relation to civil processes or trials It is not available to individuals in the course of civil proceedings. This does not specify or describe particularity the things searched and seized This kind of warrant is objectionable – therefore VOID with constitutionally Object of a search warrant – to obtain the goods. the penalty next lower in degree shall be imposed  it is an examination of a man’s house.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) the death penalty. either to be recognized as a witness or to be subject to such further proceedings as the ends of justice may require A search warrant must conform strictly to the requirements of the constitutional and statutory provisions under which it is issued • Otherwise.

such shall be done in the presence of a lawful occupant or any member of his family. he is protected. Which must be determined personally by the judge himself. It may be said that the person to be searched is particularly described in the search warrant when his name is stated in the search warrant. he may break open any outer or inner door or window of a house or any part of a house or anything to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. Probable cause presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts or committed specific omissions violating a given provision of our criminal laws (Stonehill v. room or other premises. he is designated by words sufficient to enable the officer to identify him without difficulty • • b. in writing and under oath. Demand is necessary prior to a breaking in of the doors. In searching a house. this would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims. he is not protected by the warrant and he only assumes to act without process • If the officer acts within the command of his warrant. The probable cause must be in connection with one specific offense. The judge must. The warrant issued must particularly describe the place to be searched and the persons or things to be seized.  Existence depends of a large degree upon the finding or of the opinion of the judge conducting the examination. c. there is neither a trial nor a part of the trial • • Examination must be under oath and may not be in public Examination of witnesses to determine probable cause:  Judge must examine witnesses personally  Examination must be under oath. • • • • d. • This is to outlaw general warrants 11. The description must be so particular that the officer charged with the execution of the warrant will be left with no discretion respecting the property to be taken. Obeying strictly the command of his warrant. • The sworn statements together with the affidavits submitted by witnesses must be attached to the record. only where some person is found in charge of the building to be searched. he is protected even if the complaint is proven to have been unfounded. but there is no general formula or fixed rule for the determination of the existence of probable cause. • A judge may reverse his finding of probable cause. residing in the same locality 28 . and his justification does not depend upon his discovering that for which he is to make the search If officer is refused admittance to the place of directed search after giving notice of his purpose and authority. so as to exclude all others. nor mere suspicion or belief 10. personally examine in the form of searching questions and answers. and  Examination must be reduced to writing in the form of searching questions and answers The test in determining whether the allegations in an application for a search warrant are based on personal knowledge – should not be based on mere hearsay. and • This requirement is sufficient if the officer to whom the warrant is directed is enabled to locate the same definitely and with certainty. the complainant and any witness he may produce. and not by the applicant or any other person. Immigration Commissioner has authority to determine probable cause ONLY for the purpose of issuing a warrant of arrest. • • This does not require the true legal description to be given in a required form The constitution requires that it be a description which particularly points to a definitely ascertainable place.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) • Probable cause for a search is defined as such facts and circumstances which would 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. he may break open outer or inner doors . but if he exceeds the command. • e. Vivo) f. Diokno) Probable cause is determined in the light of the conditions obtaining in given situations. before issuing the warrant. provided that the rectification is based on sound and valid grounds • • This requirement does not extend to deportation proceedings (Morano vs. caprice or passion of peace officers. on facts personally known to them. • Application for a search warrant is heard exparte. or if name is unknown. If the officer follows the command of the warrant. or in the presence of at least 2 witnesses of sufficient age and discretion. • Otherwise.

including the ff:  The purpose of the search   Presence or absence of probable cause Manner in which the search and seizure was made Place or thing searched Character of the articles procured. and should carefully replace anything he finds necessary to remove. contemporaneously with the arrest. It could thus only be invoked against the State. in order to find and seize the things connected with the crime as its fruits or as the means by which it was committed Search made without a warrant cannot be justified as an incident of arrest unless the arrest itself was lawful Search must be made at the place of the arrest and contemporaneous with the arrest. • 19. • • • • 17. Other cases where warrantless searches and seizures are valid • Search of moving vehicles 29 . A warrant is valid for ten days from its date. warrant may be served anytime of the day or night. all under oath 16.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) • The searching officer should also be considerate of the premises searched. The legality of a seizure can be contested only by the party whose rights have been impaired thereby • The objection to an unlawful search and seizure is purely personal and cannot be availed by third parties The remedy for questioning the validity of a search warrant can only be sought in the court that issued it. not the sala of another judge of concurrent jurisdiction – this is done through a motion to quash warrant of arrest Objections to the legality of the search warrant and to the admissibility of the evidence obtained are deemed waived when no objection to the legality of the search warrant was raised during the trial.   • • • Checkpoints are valid (Valmonte case) Warrantless search of aircrafts as well as fishing vessels breaching our fishery laws Consented search without a warrant Seizure of evidence in plain view Enforcement of custom laws  Exception: in a dwelling house  Vessel can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought before such warrant could be secured When search is based on probable cause under extraordinary circumstances 12. The general rule prohibits search in the night because sometimes robberies happen. Unreasonable search and seizure is such where it is not authorized by statute. After such time. 15. The right is limited to the time and place of the arrest • •   Searches and seizure inside presumptively unreasonable Constitutional prohibition against unlawful searches and seizure applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant or any member of the family or at least 2 witnesses of sufficient age and discretion residing in the same locality. a search is not incidental to the arrest unless the search is made at the place of arrest. In other words. Warrant must be direct and served in the day time • Exception: if affidavit asserts that the property is on the person or in the place ordered to be searched – here. he should mar the premises as little as possible. under the pretense of searches • • 13. or where the conditions prescribed by the stature have not been met • What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question Such is determinable from a consideration of the circumstances involved. a home are • • 14. it is VOID • A search warrant cannot be used everyday for 10 days. with the true inventory. Searches incident to lawful arrest • • This is the most important exception to the necessity for a search warrant This right includes in both instances that of searching the person who is arrested. otherwise it is not an incident to the arrest. Officer must also deliver the property seized to the judge who issued the warrant. and for a different purpose each day – warrant used to seize one thing cannot be used as authority to make another search This rule is NOT APPLICABLE when the search for a property mentioned in the warrant was not completed on the day when the warrant was issued and had to be continued the next day 18.

Attachment Appointment of receiver Fixing amounts of bonds    Attachment is a remedy afforded to the offended party to have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused •  This remedy is available in the following cases: When action for recovery is on a cause of action arising from law. papers and effects. Public prosecutor has the authority to apply for preliminary attachment as may be necessary to protect the interest of the offended party • 4. or quasi-delict and accused is about to abscond from the Philippines. wherein persons accused of violation criminal laws are engaged in conversation constitutes a violation of the Constitutional provision on the right of the people to secure in their persons. that illegally seized documents. contract. delict. tapping of phone wires of the premises of an accused.  RULE 127 PROVISIONAL REMEDIES IN CRIMINAL CASES 1. When action is against a party guilty of fraud in contracting the debt upon which action is brought. agent. papers and things are admissible in evidence. Although civil action is suspended until final judgment in the criminal case. or an attorney. or by any person in a fiduciary capacity. Through RA No. broker. or clerk. removed or disposed of his property or is about to do so. with intent to defraud his creditors. it is in order to preserve or dispose of the subject matter. or for a willful violation of duty. Some similar acts are taping or recording conversations of people. The Moncado Ruling. Provisional remedy is one provided for present need or for the occasion that is one adopted to meet a particular exigency. quasicontract. factor. When action is against a party who removed or disposed of his property or is about to do so.ZPG REMEDIAL LAW (CRIMINAL PROCEDURE) 20. and When the Philippines accused resides outside the 21. • This may be filed at the commencement of a criminal action or at any time before entry of judgment as security for the satisfaction of any judgment that may be recovered in the aforementioned cases. in the course of his employment as such. When the accused has concealed. 4200 was approved on 19 June 1965 It also penalizes other acts similar to wire-tapping . The following are the provisional remedies under the Rules of Court: • • • • • 3. • • RA No. Attachment (Rule 57) Injunction (Rule 58)   2. • The Non-exclusionary rule is contrary to the letter and spirit of the prohibition against unreasonable searches and seizures 5. or any officer of a corporation. 4200 or the Anti-Tapping Law. is already ABANDONED • The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. to secure the judgment or preserve the status quo If provisional remedies are applied to after judgment. • Preliminary writs and auxiliary writs referred to are those such as the ff:  Preliminary injunction 30 . the court is not deprived of its authority to issue preliminary and auxiliary writs which do not go into the merits of the case. Purpose of provisional remedies • Provisional remedies are applied pending litigation. or in the performance of incurred obligation. by others who are not authorized by the former to record or tape. 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.   Receivership (Rule 59) Delivery of personal property or Replevin(Rule 60) and Support Pendente Lite (Rule 61) 6.

Sign up to vote on this title
UsefulNot useful