RIGHTS OF AN ACCUSED

Nunez vs Sandiganbayan on the process of Criminal Due Process.
Due process as limitation to police power is not entirely different
but a broader concept of due process. While criminal due process is
more specific as it applies now to:
1. Criminal Proceeding
2. On the procedural aspect of the proceeding
Whereas if we talk about due process as limitation to police power:
it talks about the substantive aspect as well of the law. But assuming
that there is compliance with the substantive aspect of the law, the
process by which the person can be deprived of life or liberty if not,
property by way of penalty of forfeiture, then there should be
compliance with the criminal due process – which according to the
court in Nunez vsSandiganbayancomteplatesof :informing the
accused of the nature of the accusations and the specific charge.
1. Nature and cause of the accusations. Cause- why was he
charged? What was the act considered as the basis of the
charge? If you are charged of Murder – that’s the nature.
Cause: because you killed X with the use of a bladed
weapon.
2. Given the opportunity to be heard
3. Judgment against you should only be based on the
evidence presented in court – you will have the right to
cross examine the witnesses against you
And then the required proof of conviction: proof of guilt beyond
reasonable doubt. This is done before judgment and the judgment is
to be handed over by the competent court. So that is essentially the
basic concept of due process.
There was an issue on equal protection because apparently, there
was a question of why those charge of estafa under the Anti-Graft
and Corruption practices Act for Public Officers. They have lesser
remedy for appeal, narrow remedy for appeal and only grave abuse
of discretion. But in the case of ordinary citizens, not government
officials, they still have remedy of appealing on matters of law and
facts to the Court of Appeals and later to the Supreme Court.
But then again, the court found a valid classification between
government officials using up public funds and private individuals
misappropriating private funds. That to me is also a valid
classification. In your exam of course, is the law valid if it
distinguishes man from woman. In most answers you said yes
provided the distinction must be substantial. Nalimtanbitawang
germane to the purpose of the law. Mao untana!
Now we have another right of the accused which is the Right to be
Presumed Innocent. The right to be presumed innocent until proven
guilty. Not only that, the proof of guilt must be proof of guilty
beyond reasonable doubt.
What do you mean by the accused is presumed innocent. What are
the implications of the statement that an accused is presumed
innocent until proven guilty?
So if youre saying that if youre not granted bail so that means guilt is
strong. So you mean presumption of innocent here is not applied?
 Presumption of innocence even if your offense is non-
bailable. And even if you are denied the application for
bail, presumption of innocence still applies.
Tura? (CR) Yap?? What are the implications of being presumed
innocent until proven guilty beyond reasonable doubt?
Demi: It implies sir that the prosecution has the burden of proof to
show that the guilt of the accused is to be proved beyond
reasonable doubt. Like the strength, the evidence should not focus
on the weakness of the defense but on the strength of the
prosecution, sir.
Sir: The judge should not rely on the weakness of the evidence of
the defense but on the strength of the evidence of the prosecution
in rendering a judgment. Or an accused is indeed presumed
innocent until proven guilty.
Sir: Now if you say the prosecution has the burden of proof what do
you mean by that?
D: That there should be moral certainty as to the evidence
presented by the prosecution
Sir: So when you say the prosecution has burden of proof, that the
prosecution must present evidence?
D: Yes sir.
S: but the prosecution will really present evidence!
D: and the defense sir also has to present evidence sir
S: you have the burden of proof doesn’t mean that you should
present evidence because you always have to present evidence
D: I think it means that the state sir has all the resources to be able
to produce evidence sir?
S: Are you familiar with what’s found in criminal procedure which is
DEMURER TO EVIDENCE? Don’t you know that the crim proceeding
may be terminated even when the accused has not yet presented
evidence? For indeed the burden to show guilt beyond reasonable
doubt is on the prosecution. So the accused may opt not to present
evidence at all.
Because when you say PRESUMPTION OF INNOCENCE, it means
 The accused is not bound or obliged to prove his
innocence. It is the burden of the prosecution to prove the
guilt. Sayonara no? but not so because when the evidence
of the prosecution is strong and convincing, you might as
well be compelled to give evidence just to paint and
establish the doubt.

What is an EQUIPOISE RULE in evidence?
D: that the evidence of both parties are evenly balanced. The
innocence should build the skills(?) in favor of the accused.
What is the important condition before the Equipoise rule may be
applied?
D: That there should be equal evidence of the prosecution and
defense.
S: if it is equal then the decision of the court should be in favor of
the accused cos he is presumed innocent.
So one implication of the right to be presumed innocent is the
burden of proof which is by the prosecution. And what will the
prosecution prove? Guilt that is beyond reasonable doubt.
What do we mean by Reasonable Doubt?
D: That there should be moral certainty?
Sir : What do we mean by moral certainty? Moral Certainty on the
part of the judge, that the accused committed the crime. Why are
we talking about moral certainty? Because we need to realize that it
is NOT absolute certainty that is required. Only god can do that.
Whats the reason for the requirement of reasonable doubt in
relation to presumption of innocence? Vizconde Massacre Case, can
you tell us the outcome and the reason why accused aquitted and
apply the case to the principle of presumption of innocence.
D: Accused got aquitted because the evidence was based on
hearsay..
You have to read this case because it shows that whenever there is
doubt on the basis of evidence on record. A lot of inconsistencies
had been observed by the court- ranging from improbability of
certain testimonies on the part of Alfaro. Why would Jessica Alfaro
who has just met a complete stranger in Webb and other company
who sent a message from Webb to Carmelaand for her to even
spread her own gas and there was a testimony that she was in fact
the first who entered into the house and then somebody shouted
“Sino yan?” she was also the first to hide when she knew all along
that that was the plan.
Tanawa ha geunsapaganalyzesa court. The moment the court sees
the evidence, not only physical, object. Also
testimony.Inconsistencies in testimonies is also important because
that may manifest or show that the testimony is fabricated. So the
reason of the pres of innocence- when there is reasonable doubt, it
should be resolved in favor of the accused.
And there was also a discussion on the nature of alibi. While alibi is a
weak defense, it doesn’t mean that everytime the accused invokes
as defense alibi that it is not worthy of appreciation in the face of
the positive identification of a witness. Because positive
identification, to be able to outweigh the defense of denial and
alibi, what are required?
The rule is alibi anddenial are weak defenses in criminal cases.
Unsaganinang alibi class? “ikaynangawatnoh?” diliuy, ngano man
mangawatkoananganaa man koi kwarta.” “ahh d
komodawatanaimong alibi.”
In law, ALIBI means: you could not have committed the crime
because you are in another place where it is physical ly impossible
for you to have committed the crime at a particular date and time.
e.g. I wasn’t in Jollibee at 5pm, I was in class at that time so I could
not have committed the crime.
For alibi to be appreciated, it is required that there is physical
impossibility for the commission of the crime. For one, you consider
the distance. Second you consider the time.
For the above example, is alibi appreciated? No, because while you
attended a class at 5 oclock, it wasn’t impossible to have gone to
Jollibee and commit the crime there and come back to class. That’s
possible. But to say for e.g. “I could not have committed the crime in
Jollibee on March 2 at 5pm because I was at Manila.” Not only the
distance, you consider the time.
A good alibi was presented by Webb because he was in US. Now on
the matter of the pieces of evidence presented, its not so much on
the weakness of the defense of alibi but on the strength of the
prosecution’s evidence.
Take note that ALIBI IS A WEAK DEFENSE. But only in the face of a
positive identification by an eye witness.If there was an eye witness
who said “I saw you killing Juan” and the defense of the accused is “I
wasn’t there.” Which evidedne is more heavy and acceptable to the
court? Positive identification or the denial by the accused? Under
the ROC, alibi is a weak defense because it can be easily fabricated.
Dali ra kayo ingnonwalakodidto. But it’s a lot difficult to say that you
were there. Negative evidence is easier to fabricate than positive
defense. You will learn that in law on evidence..dalira kayo e deny.
So why are we talking about this? In order to appreciate how the SC
analyzed the guilt of Webb and Co in this case. Ilang alibi di man
entirely inappropriate. However accdng to the Court, for positive
identification to outweigh alibi, there are 2 requisites for positive
identification: (For evidence to be credible or believable it must:)
1. Comes from a credible witness
2. Testimony of the witness is also credible
Jessica Alfaro asset of NBI, and there was a testimony that she in
fact volunteered to offer the testimony as the supposed witness. So
iyang credibility as a witness is questionable. Second, the testimony
of the witness must also be credible pero there were inconsistencies
and so the Court noticed in both standards the testimony of Jessica
Alfaro failed to convince the court that accused was guilty of the
crime beyond reasonable doubt.
The right to be heard by counsel, by himself and by counsel – is
that absolute? Is it possible for an accused to say I waive my right to
counsel, I can handle this case, I don’t need a lawyer? Are there any
conditions before the right of counsel to be waived?
This is in trial na, not custodial investigation. In trial we also have the
right to counsel. This is the right to be heard by himself AND
counsel. So may the right to counsel in criminal proceedings be
waived?
Maygpariha tang Uncle Marcos Ferdi dba? (hahaha) when he was
accused of committing murder of a certain ladongdasa??? He was in
fact taking the bar with preparation of less than 2 months under
house arrest kay pending man to iyang case. Although it wasn’t
entirely true nawa siyay counsel. Naa lai instances na siya lang ang
nag handle sa iyang case in the absence of counsel.
But the Right to Counsel, can it be waived?
K: it can be waived if you have the capacity to defend yourself
S: what do you mean by capacity to defend yourself? Lets have this
case of Tulin. He was represented by first someone who
misrepresented himself as lawyer.
K: I think if you have legal background
S: is it stated in the law that you should have legal background? Is it
the capacity to defend yourself or is it whether or not you are
capable of protecting your rights? Kay d man na defending yourself,
meaning you are capable of getting an acquittal? You will need a
lawyer there. But when you say being capable of being able to
protect your rights, not necessarily an acquittal- that’s a different
standard. You have to use the wording of the law. Because if you say
“capacity to defend yourself” that’s like saying “capacity to get an
acquittal.” But if it’s just capacity to make sure that your rights will
be amply protected then that’s different. Is it the rule also before
that you can waive provided that the court is convinced that you
know how to fully protect your rights? Or is it not on the past waiver
of the right to counsel in criminal proceeding was not allowed
because it was against public policy?
Are you aware of that, that in the past the right to counsel in a
criminal proceeding can’t be waived because it is against public
policy? If one's allowed waives the right to counsel he may not be
able to exercise and in so doing will right in fact be held or be
convicted, not because of the inherent strength of the evidence of
the prosecution but probably for the inability to quit in court for the
witnesses of the prosecution’s evidence. For indeed whether you
like it or not no matter how brilliant we are if we are not schooled in
law and evidence it may be hard for one to be able to defend
himself so it’s against public policy to wwaive the right to counsel.
Now it can be done, thatat you can waive your right provided that
you can convice the court and the court is also convinced that you
can amply protect your rights as an accused.
What is this, informed of the nature and cause of the accused? What
is the idea of this? Will you be sent a letter by the fiscal, of offense
and the charge? Can it be in fact being done?
What Happen in the case of people vsbayya, what is the rule now in
the allegation of the information? An accused be convicted of the
crime under, with aggravating circumstance when the aggravating
circumstance is not allege in the information, you know that rule? In
the past if the qualifying circumstance, for example, if not allege but
proven in trial it is appreciated a generic aggravating circumstance.
It was so confusing because of those principles, now it was made
simpler, black and white rule, if it is not allege in the information,
whether it is qualified or aggravating it is not appreciated even if it is
proven in the trial. What is the reason for that? The reason is that
the right of the accused to be informed of the nature and cause of
his accusation.
Problem: X had been charged of the crime of estafa, of postdating a
check, will he be convicted of BP22.
What was not allege in the case people vs bayya? although proven
during trial, because the penalty of Death for this incestuous crime
of rape is imposed under the death penalty at that time when the
victims below under 18 years of age but the minority was not found
in the information you can not be convicted of the crimes under the
law as a qualifying circumstance for the application of death penalty.
So, let’s talk about the right of the accused.
Start with the Right to bail, we already discussed that, there is one
important point there that the right of bail is not always available to
any accused, i think you might have read somewhere that the right
to bail is not available to the members the armed forces facing court
martial proceedings because of the nature of the, not only of the
offense but also the nature of their skill, ability and tendency and
capacity also the influence witnesses being powerful agents of the
state.

We go to the Right of due process of law,
 The law itself must be reasonable
 The accused is informed of the accusation, be given the
opportunity to be heard, and convicted on the basis
required quantum of evidence.
 Appeal when granted by law must be afforded to the
accused
As i mentioned earlier its specific specie the right to due process.
Due process in the limitation to police power is broader because it
involves substance and procedure. Due process of criminal
proceeding is of course more on the process is when the person is to
be convicted of the crime. Obviously when it is part of the larger
concept of due process, we require that the law under which v
person is convicted for purposes has likewise be reasonable that is in
fact the substantive due process aspect. But above all this is what
you should take note, the accused is informed with the accusations,
opportunity of the pieces of evidence and quantum of evidence
required.
This is well illustrated in the case of nunezvssandiganbayan, aside
from that talking about appeal, is appeal part of the right due
process? Meaning if you are denied to appeal is that a violation to
due process? Can you mention a provision on the constitution that
grants the right of the accused? Let’s say, a law was passed the
decision of the RTC in criminal cases involving the penalty of less
than one year of imprisonment shall no longer be appealable and
shall become final is that a violation of due process? Is a denial of
appeal, a remedy or is denial of due process? Anyone? Do you think
that law is a valid law and not the violation of due process? (
daraang answer oh, when appeal is granted by law must be afforded
by the accused conversely if the law itself provides that there is no
appeal then there is no violation of the right to due process it
becomes a violation of due process when, if the law allows appeal
but and he is not afforded then that is a violation of due process.
that is the general rule. however, when you look at what is the
minimum appellate jurisdiction of the SC? what is that? this is the
Power of the SC to review
Constitution art 8 sec 5 (2):
Section 5. The Supreme Court shall have the following powers:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari,
as the law or the Rules of Court may provide, final judgments and
orders of lower courts in:
a. All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
b. All cases in which the jurisdiction of any lower court is in
issue.
c. All criminal cases in which the penalty imposed is reclusion
perpetua or higher.

So minimum appellate jurisdiction of the court in relation to due
process in criminal cases, the court has a constitutional power to
review decisions of lower courts where the penalties imposed is of
reclusion perpetua or higher. why do we call that minimum
appellate jurisdiction of the court? because jurisdiction class as you
have learnt in consti one is determined by law, so congress decide
naa bay power ang court or wala. so court decide whether a
particular case is appealable to the SC. congress decide if cases of
BP22 can be elevated to the SC, then that is perfectly ok, because
jurisdiction is determined by law by congress. But congress cannot
deprive SC of the right to review if the imposable penalty is RP or
higher. Congress has no discretion here. meaning if the case here
involve is the penalty is RP or higher, and most cases this crimes are
imposable by RP or higher.
So is this appeal part of due process? generally it is not part of due
process because it is essentially statutory, that is the rule, only given
by law but if given by law it must be granted of course to the
accused. in any case those crimes punishable by RP or higher it is
always a right to go to SC. SC has the authority to review that
decision under the Constitution.
So, this is what the SC state in the Nunez
In criminal proceedings then, due process is satisfied if the accused is
"informed as to why he is proceeded against and what charge he has
to meet, with his conviction being made to rest on evidence that is
not tainted with falsity after full opportunity for him to rebut it and
the sentence being imposed in accordance with a valid law. It is
assumed, of course, that the court that rendered the decision is one
of competent jurisdiction." (Nunez v. Sandiganbayan)

Then we go to the Right to be presumed innocent, unsa may mga
implication? one implication is that the prosecution should prove
guilt beyond reasonable doubt, ok, in other word, the conviction of
the accused will not be based on the witnesses of the defense but
solely on the strength of the evidence of the prosecutor, meaning
the faith of the accused should solidly base on the evidence of the
prosecution. but in any case of course if the required proof is guilt
beyond reasonable doubt the converse of that is when there is
reasonable doubt the judgement should be acquittal in fact it is
mandatory when there is a judgement of reasonable doubt the
accuse maybe acquitted, in fact it is explained in the case of Webb.
That is one implication. The requirement that there has to be
(1)
moral certaintyis not absolute certainty required. When you study
evidence you will learn there the meaning of moral certainty on the
part of the judge, the judge is simply convinced that on the basis of
evidence presented that he is morally certain that the accused has
committed the crime.
that also explains why as a rule the accused must be represented by
counsel. the one you mentioned earlier, conviction must depend not
on the basis of the defense but on the strength of the prosecution.
precisely there is this is the thing called the demuller of evidence in
criminal proceeding. What is demuller of evidence? after the of
presentation of the prosecution pwedeka class mo go for the
dismissal of the case on the basis of insufficiency of evidence even
before the accused will present his own evidence, available to the
accused. in fact the accused can always invoke the right to remain
silent without saying anything at all by not presenting any evidence
and so the prosecution, or rather the success of the case entirely
depends on the prosecution.so in a decision of the judge for
example, let’s focus on the inconsistencies and the incredibility, the
lack of witness on the part of the defense, mao nay ang focus but
there is not much in the discussion of the strength of the
prosecution of evidence would warrant on the acquittal.
second we adopt
(2)
equipoise rule precisely because of the
presumption of innocence. assuming that there is equality in the
strength of the prosecution and evidence for the accused. The
equipoise rule mandates, and it is mandatory ha, the judge must
render a judgement of acquittal but of course it presupposes that
there is equality in the weight of the evidence.
Our declaration in justice Abad in the case of Webb after a rather
convincing analysis on the testimony of Jessica,
In our criminal justice system, what is important is, not whether the
court entertains doubt about the innocence of the accused since an
open mind is willing to explore all possibilities, but whether it
entertains a reasonable, lingering doubt as to his guilt. Or, it would
be a serious mistake to send an innocent man to jail whether such
kind of doubt hangs on to one’s inner being, like a piece of meat
lodge immovable between teeth. (Lejano v. People/People v. Webb,
2010)

The Idea is the judge should not have this feeling of doubt nga
medyo uncomfortable cya about a particular evidence. “murag dili
ko komportable sa testimony ni Jessica Alfaro”. Dba ingon pa gae
ang court nga its weird nga nag.una2x pa si Jessica Alfaro ug sud nya
siya pa kunuhay didto nag.una pag.lead nilang Webb and Company
and then she was the one to first supposedly escape when
somebody shouted “sino yan?”.Nya basta daghan kau mga
improbabilities. Nganu nga pagngon man ang sugan gani ingon man
kaha si Carmela nga abliha nniyaang kitchen? So they can come in
the third time they went back to the house of the Vizconde. Unya sa
dihang nag.yup2x na. Mintras nag.yup2x sila didto class after
kunuhay. Just to explain the anger of webb to carmela so that he will
be moved to commit the crime. Napugos kunu ug ingon si Jessica
nga Carmela went out for a while on the second time ni.adto cya sa
house nakit-an nga nag.drop-off cya ug male companion supposedly
mura kunu ug boyfriend ingon ana bah. And then when webb knew
about it he got jealous and then that explains why he planned to
gang rape carmela vizconde nya ingon man gae to sila nga kami sad
ambot pila to sila kabuok, “O,cge2x ato tabangan”. About probably
7 of them decided to gang rape. Pro pag abot kunu sa balay. Si
Alfaro,Si Webb and 2 others maoraangni.sud. Ang kadto d I n.ingon
nga sige apil ko ana gang rape, tuara sa gawas?! Ingon ang SC murag
there’s something wrong with this one.
-Mao it is very important if you want to succeed in law practice that
“you must have a good grasp of human experience”. Kay dinha
mana nimu ma.test ang reasonableness and credibility of a
testimony.
 PROSECUTION MUST PROVE GUILT BEYOND REASONABLE
DOUBT
COSEP VS PEOPLE : where the state fails to meet the quantum of
proof required to overcome the constitutional presumption the
accused is entitled to acquittal regardless of the weakness or even
the absence of his defense {awa ha? Even the absent nga pwede
man xa mo.remain silent, d na xamo.present ug evidence ipa.dismiss
niya on the ground insufficiency of evidence upon the filing of what
is known as DEMURRER TO EVIDENCE]
EQUIPOISE RULE – applies only where indeed there is a balance in
the weighing of evidence. Pro if clear ang evidence sa prosecution
then objection is proper.
Presumption of Innocence
 It is the duty of the prosecution to prove the guilt of the
accused, but are they not aware that there are instances
where presumption of innocence does not come into play?

Principles in Criminal law where presumption of innocence may not
apply, because there are far more logical link between the facts and
the assumed fact :
1. a person who is in possession of a falsified document and
takes advantage or uses the falsified document that he is
the author of the forgery there fore it is incumbent upon
the accused to prove now that he is not the author kay
presumed nman siya nga siya ang author.
2. Any person who is in possession of a stolen item is
presumed to be the thief or the one who committed the
crime of theft.
3. Malversation . Misappropriation for example. Kanang
cashier mo.report ug shortage upon demand, there is
failure to account. Dba there’s a presumption of
misappropriation.
Nganu allowed mana class? Mga presumptions in favor of the guilt
rather than the innocence of the accused.Because there is a logical
basis, the fact and the assumption logical ang ilahang connection.
For example : cashier naaka shortage you are unable to account or
explain the shortage. What does it mean? That you have
misappropriated the money otherwise it is easy for you to say [dba
nahimu cya nga misappropriation kay upon demand there is inability
to account and explain the shortage] nya nangutana cya “nganu
kuwangan mani ug 50,000?” Ambot. “ambot ka karon, ikaw rajud
nakahibalo ug nganu kuwang na ug 50,000.” Whereas, kana in-ability
to explain man the shortage ug innocent ka simple ra kaau na.
“nganu kuwang man ug 50,000?” –dri man gud to si mayor ganina
sir,nya ingon man siya iya daw tan.awon ang cash nya man huwam
man kunu cya iya lang daw uli-an daun- “pila man kunu iya
huwamon?” -50,000- so n.explain moh, korek? So inability to explain
shortage there is a presumption that you have misappropriated the
money bec. It is not difficult for an innocent person to explain those
instances. So nay logical thing bet. The facts established and the
facts assumed. So dli xa against sa constitutional right.

MEANING OF REASONABLE DOUBT
 REASONABLE DOUBT should necessarily pertain to the
facts constitutive of the crime charged. Discrepancies that
touch on significant facts are crucial on the guilt or
innocence of an accused. Conversely, inconsistencies and
discrepancies in details w/c are irrelevant to the
elements of the crime are not grounds for acquittal.
Ugmo.ingon gae ka ug reasonable doubt it
should be reasonable doubt on the evidence
constituting the elements of the crime. It may
be hard at this time for you to appreciate that
bec. You still have to study evidence but force
yourself to understand that that is the
requirement on reasonable doubt.




PEOPLE VS CALMA : 3 minor children iyag.biktima.
Supposedly 3 reasonable doubt nga iya g.establish [
accused],

After the alleged commission of the crime of incestuous
rape :
o Close pman kunu gihapon siya sa iya mga anak
o One year kapin nka .survive sad ni mga bata.a
nga wa mo.tug-an for more than a year
o D sad katuohan nga ang 15 year old kay
na.inlove sa iya father.
o High grades. Still performing very well in school.
Ug biktima pa ni a ug incestuous rape wala na
unta na n.perform sa skul ug maau nya dagko-a
ug grado oh.
 Are all of those instances ELEMENT OF CRIME? NO.
 Unsa my dapat e.discuss? BROKEN HYMEN.
o Unsa my number 1 reason : FORCE ENTRY OF A
HARD BLUNT OBJECT.
 Number 1 suspect of a hard blunt
object is --------------. That one.
 Could it be that the hard blunt object
be a finger?
 Could it be the finger of the girl?
-tuod man na establish na there could be another pro wa manay
labot sa elements of the crime nganu man d I ugmo.ingon ang dr.
nga falling hard on a hard object also. So kadto iyaha long years nga
ni complain ang children, suppose good relationship, good grades.
Even the commission of the crime itself infact will create doubt dli
namo. Ingon nga mura mag .impossible mahitabo na and therefore
there is reasonable doubt and therefore there should be acquittal. D
na maoy pasabot class. Bec. Infact human mind will not be able to
anticipate, imagine all the pervert crimes that a man may commit.
So ayaw’g ingon nga impossible g.ingon ana pag.comita ng crime, d
ko mo.too and therefore, innocent. So kanang reasonable doubt
class reasonable doubt on the pieces of evidence not reasonable
doubt nga it is highly improbable that the crime was committed bec.
Of this and bec.Of that. You have to look at the evidence.
Testimonial evidence in the first place of the children ka klaro adto.
Rulings of the court ,nganu credible mana nga testimony? There are
rulings of the SC that say that its not easy for a person of tender age
to come out of the open and accuse her father of a crime no less
than rape against her. Mao btaw na sa rape cases nga testimony of
the rape victim is the only testimony that is presented by the
prosecution it was not corroborated by other evidence. Ok ka lang?
Most rape crimes are committed in the solitude or in solitary. Kay d
na committed by the company of other people. Specially the crime
of rape. Nya mangau kaug corroborative testimony. It’s not by the
number it’s in the credibility of the testimony, the credibility of the
witness of course and the credibility of the testimony itself. D na
saun class magpa.news kaya tinga rape victim ka. Toohan nlng jud na
nimu.
Sweetheart theory: He could have not raped the victim because they
were sweethearts. D mana mo.follow. He could have not committed
rape because the victim is a prostitute. Just to create doubt bah but
those doubts do not have any bearing on the physical evidence.
Unsa mana ang physical evidence? Laceration for example is it not
proof for force entry? And therefore, without consent and
therefore, there is rape.
Mo.ingon ka are you telling the court dr. that there is clear
penetration? YES. Is it possible in medical science to establish that
the penetration here actually is done by the accused in this case?
Probably under our new science.DNA. YES. We can look at the
semen and make DNA comparison or test. Nya establish na daun na
nimu. Sunod na theory, Police n.request ba ug medical examination
and the getting of semen for DNA testing? Wala,so it creates doubt.
Ana ka sa evidence. That is the meaning of reasonable doubt.
 THERE MUST BE MORAL CERTAINTY (NOT ABSOLUTE
CERTAINTY)
 CONVICTION MUST DEPEND NOT ON THE WEAKNESS OF
THE DEFENSE BUT ON THE STRENGTH OF THE
PROSECUTION

 THE RIGHT TO BE HEARD
 RIGHT TO PRESENT EVIDENCE AND BE PRESENT DURING
TRIAL
 WITH THE ASSISTANCE OF COUNSEL
- In the past it was not allowed as it is
considered to be against public policy.
- Now, it can be done provided that the court
is convince that the accuse can protect his
rights aptly but the court must be satisfied.
 MUST BE GIVEN THE OPPORTUNITY TO ENGAGE THE
SERVICES OF COUNSEL
Situation:
Judge : Mr. accused, Do you have a counsel of your own?
Accused: no judge.
J: do you wish to get a counsel of your own?
A: yes judge.
J: will you not accuse a counsel de officio assigned to you?
[ counsel de officio – counsel appointed by court]
Decision must come from the accused. Because indeed if he insists
that he should be represented by a counsel of his choice the court
must wait and give the accused the opportunity to hire that counsel
of his choice. HOWEVER, naa lge mga maldito na akusado class bah,
ahh..mao d I ni basta absent ang counsel ma.postpone.
A: your honor I am not ready to proceed because my counsel is
absent. [ SOP sa judge kay trained mna cla]
J: So you’re telling the court that you really wish to hire a counsel of
your choice?
A: yes your honor.
J: you will not accept a counsel de officio for purposes lng of the
direct examination of the first witness of the prosecution.
A: no your honor I’d rather ask my own lawyer to come and appear.
-Duty of the judge: cancel and postpone, give him the opportunity to
engage the services of a counsel. D postponed na, nya dagan ug pila
buwan, 3-4 months.
J: Oh? Naa nka counsel of your own choice?
A: naa na unta to judge pro ana man cya nga d pa xa ready today kay
wa pa cya ka study sa case kay gahapon pa nku g.hire.
-postponed nsad. Hatagan jud ug every opportunity bah.kay lisod
pud kaau ug imu e.violate. Hatagan jud nimu ug every opportunity
kay ug prosecution ka class aron ig.ma.convicted na wan a jud cyay
reklamo. Kay ting ani strikto kaau ka nya on appeal ma.kit.an na
didto sa higher court nga wa cya mahatagi ug opportunity to engage
the services of a cancel. D,pildi na nuon ka.
-So ni.dagan na ug one year.
A: Now your honor I have a counsel.
J: ok,very good. Now we are ready to listen to the first witness of the
prosecution.
Fiscal: Your honor, we are here to manifest that our supposed first
witness died last month.
-g.huwat ra d I nga mamatay. Himatyon, lung cancer.
Hire another counsel npud kay n.withdraw ang lawyer or whatever
reason.
Postponed npud. Kay hire another counsel.
-Strategy nga wala sa libro. So that if that right is abused by the
accused and there is evidence that that is used to delay the
proceeding that will not prevent the judge to insist that a counsel de
officio be assigned provided that the judge will make assure that the
counsel de officio assigned is a competent one.
J: Mr. dela Cruz this is the fourth time that we have cancelled the
hearing bec. You said you will bring with you a counsel of your own
choice but after four times after four settings you still fail to hire the
services of a counsel. I think enough is enough. Atty. --- you are
hereby appointed.
Is there something wrong with that? NO. Bec. It was already
established that that accused was already given the opportunity to
engage the services of a counsel. So ayaw pag too nga d ka proceed
at the behest of the accused ra..D sad cguro.
March 5
Trial in absentia is it allowed?
Meaning in all proceedings the accused must be present?
So for as long a he has already made the plea and he is absent for a
particular hearing then the case or the hearing would proceed even
in his absence anyway the arraignment is already done.
Is not that he must be present The question is may he be absent?
Remember this is the right to be present so were taking about
whether or not a hearing conducted by the court in the absence of
the accused will violate the right to hearing.
Janice: the right to hearing is that (dle maklaro)
CJ: I believe that the 3requisites of trial in absentia: 1. Accused must
be duly notified of the hearing 2. There must be an arraignment 3.
The absence is unjustifiable. it means that there is an exception to
the general rule
But there may be an instance where the accused cannot insist on
being present in the hearing because if the condition under which
trial in absencia may be conducted then that is not a violation of his
right to be present.
on the other hand may he be compelled to be present also? Because
it seems that the right to be present then If the accused wants not
to be present then he is waiving his right. A right may or may not be
exercised, but can he be compelled to appear even though
supposedly to be present is a right and therefore can be waived may
he be compelled nevertheless.
Yes. Purposes of positive identification. He may be compelled to be
present so that he cannot make an excused, that he was not there. If
he doesn’t appear then no positive identification can be done.
Although in practice may be abused by the accused and if the
accused has posted bail, the chances are of course he must have
submitted photographs/pictures when he jumps bail and does not
attend anymore it shouldn’t prejudice the prosecution. So if he
jumps bail the prosecution can continue by simply asking the
witness to identify the accused through the pictures in the record, so
while it maybe mandatory it should not prejudice the prosecution.
What else? Are there any other instances where the accused may be
compelled to be present?
Emboy: when he unqualifiedly (dle klaro, pro sure ko naa ni sa
bernas, last paragraph under this topic.haha) im asking other
instances
What about arraignment. Do you think arraignment can be done
through a representative, or through tele conferene or facetime or…
wala no. personal plea cannot be given to a substitute or a
representative. What else?
What about promulgation of judgment? Yes sir it should be present
….. that is a rule but it shouldn’t prejudice the accused because if the
accused is absent on the day of the scheduled promulgation while
he may be compelled but if he continues to refuse to appear then
judgment can still be done in open court even in the absent of the
accused provided of course is that his absence is unjustifiable and
the consequence of course is that the accused may no longer avail of
appellate remedies. You must have read that in ecleo.
Some cases though may not make dispense with the appearance of
the accused in promulgation especially those offenses that are
punishable by light felonies. So light offenses for example, a
judgment maybe waived promulgation can be done even in the
absence of the accused, no need to determine whether the accused
is justified in his absence that’s inconsequential, if that is for light
offense it may right away be promulgated and be recorded by
entering the decision in the records of the clerk of court.
Have you read the case of? Lacson vs Executive secretary (daghan na
winner apil nku)
Lets go straight to the relevant issue here. It’s about the sufficiency
of the information so as to comply with the requirements that the
accused must have been informed of the nature and the cause of his
accusation. It was observed by the supreme court that the
information was defective because it did not sufficiently state the
factual allegation required in the rules of court. So how was the
information stated and what made it defective in that case?
Winner again
Dapanas to the rescue. 2
nd
and 3
rd
paragraph of this case.
Lacson and company because they were charged before the
sandiganbayan. What was the jurisdiction of the sandiganbayan
there? The jurisdiction of the sandiganbayan,so it was important for
the information to state that they were public officers and that the
acts that constituted the crime were related to there function as
public officers. Now the place in the discharge of there official
duties. What did the SC say about it? Was it sufficient. the court said
it was in fact it was a conclusion of law rather than a conclusion of
facts.
There must be a link of the discharge of functions by mentioning
service of warrant, effective arrest, conducting a raid, buy-bust
operation. There must be a process rather than simply stating that in
the discharge of their function they have committed a crime. That is
conclusion of law, because it has not been stated why it was in the
discharge of their functions. It becomes in the discharge of their
functions by factual allegations that there are specific allegations to
the discharge of their function. Unsa may function sa police?
Affecting an arrest serving a warrant buy bust operation etc etc.
mao na ang pag specify sa facts rather than mere conclusion of the
law.
Now miss curan. How is the right to meet the witness face to face
accomplished?
Anna: to confront and cross exam, by cross examination of the
witness. What is your understanding of cross examination? That the
witness is presented during the trial and then he or she will be
questioned by the lawyer. So all questions by the lawyer is cross
examination? Is it not there is such a a thing as direct examination
and cross examination?
What do you mean by the right of the accused to cross examine?
What about affidavits? When are they admissible in court? Do you
know what affidavits are? When are they admissible in court? There
is a condition before an affidavit may be admitted. It is not that we
submit an affidavit in court. Do you think that an affidavit maybe
submitted as long as it is notarized and voluntary? Ok nana? Is it
admissible?
Banoc
The affidavit submitted to the court what are the conditions under
which it maybe admitted miss curan said basta lang voluntarily
excuted under oath properly executed by affiant then it maybe
admitted right away?
Banoc: no when the evidence is offered and it is not objected to by
the defense it maybe admitted.
Ok that’s a good premise. Assume that it is objected. Then is it
objectionable.
What should be the proper objection? What is the proper ground for
objection? Assume that it is relevant, material. The affidavit
What is the proper ground?
Fernandez: yes sir the affidavit won’t be admissible if there was no
cross examination. Because according to cruz it iis mere heresay
(there is not factual basis of the statement, not personal knowledge)
There is a saying that an affidavit is just a mere scrap of paper until
and unless the affiant himself appears in court and subjects himself
to cross examination by the other counsel. Without that cross
examination the affidavit is a mere scrap of paper because it can be
considered as heresay.
What about medical certificate issued by doctors? When are they
admissible in court?
Cross examination need not be conducted. What is important is the
opportunity of the accused through his counsel to cross examine the
witness.
The accused also has the right compulsory processes. How is this
accomplished? The right to compulsory processes?
Dba the accused has the right to compulsory processes? What do
you mean by compulsory processes.
It is one of the rights of the accused.
Who will take the attendance of tomorrows activity?
Miss bawasanta what do you mean by attendance of the witness?
How should a witness be compelled to attend? Isn’t it true the
issuance of subpoena that the witness maybe compelled to attend.
And it is compulsory because failure to heed maybe held in
contempt of the court?
What is a subpoena ad testificandum? a writ commanding a person
to appear in court to testify as a witness
What is a sub poena duces? a writ commanding a person to produce
in court certain designated documents or evidence
What is a subpoena duces tecum? In order to comply with the right
to speedy trial, because one of the rights of the accused is involve 3
rights here compounded. It’s the (1)right to speedy trial, (2)right to
impartial trial and (3)right to public trial. Together, they are called
the right to speedy, impartial, and public trial.
Let’s talk about the right to speedy trial. Is postponement not
allowed because of the right to speedy trial? How will you put teeth
to right with the right to speedy trial? Not all delays are prohibited in
the trial. What are prohibited are those unreasonable, unjustifiable,
vexatious, and oppressive delays. Who determines that? The judge
of course.
In criminal cases, we have this what we call marathon trial.
Situation: You have just killed the sister of the president. You will be
all over the news as the accused for the crime of the century. You
have been the subject of all the talk. Almost every day, your face
appears on the newspaper. Your lawyer, got pissed off and said
enough is enough, you should put an end to this trial by publicity.
How do you think should your lawyer argue that the coverage of
your trial be prohibited? Publicity will tend to affect the judgment of
the judge. For as long as the publicity has the tendency to influence
the mind of the judge, then the judge must probably inhibit itself?
Or you should might just stop the publicity? But don’t you think it
should be a violation to the freedom of the press if the court decides
to prohibit newspapers in including you in the news account
everyday? Or don’t you think you should distinguish between
newspaper, broadcast, or live coverage of the trial? Which one
should be allowed and which one should not be? Live coverage,
broadcast, news account? What was the decision of the court in
Estrada vs. Desierto on the petition saying that the ombudsman
should stop investigating because the accused has been subjected to
trial by publicity? In other words, do you think it is a violation of the
right to have an impartial trial? It said that trial by publicity is not a
ground to say that the judge is or can be impartial. That is on the
matter on impartiality.
Let’s talk about public trial. Should a live coverage of a trial be
prohibited? The problem in the Estrada case is that the prosecution,
including the press, wanted the live coverage of the Estrada trial.
Instead of the accused pleading that it should be covered live, ang
prosecution may gusto live. So the issue here is, if the accused says,
it shouldn’t be covered live, what possibly be the justification for
this? Ani nalang, should a criminal trial be covered by media?
Second, pwede ba live or pwede di? Because in Estrada, apparently,
gi cover, pero dili live. The right to public trial is a right of the
accused. It should be the accused who should invoke it in the first
place. With this being said, can the prosecution now request that it
should be covered live? In the Estrada vs Desierto, live coverage was
not allowed. Only covered, recorded, but not broadcasted live. But
in the Ampatuan case, it was live coverage? How was is
distinguished by the SC? The court observed that there was an
impossibility of having all of the accused, 197 of them, fit in the
court room. Not only that, i.apil pa nimo ilang family. Mao nang
kaingun ang SC na we will allow it subject to some conditions. On
the Oct 23, 2012 resolution of the SC to the matter of coverage of
the Ampatuan Case. Pero outside sa court room, para ang families
makakita, naay designated court rooms outside. Meaning other
courts where live coverage may be allowed. Only in the case of
Ampatuan. But for the case of Estrada, Aquino, and even Laranaga,
the right to Public Trial is the right of the accused and it is the
accused himself who must insist, not the prosecution, not the
media. But to balance freedom of the press, they were not
prohibited. They can cover, but not live. Record lang, which may be
broadcasted later because that might also affect the so called Sub
Judice rule.
Can you refuse the taking of your blood for DNA testing to prove
that you have committed the crime? You can, but what can be the
valid ground? That is against your right to self-incrimination.
Because the moment your blood sample matches the specimen
found in the crime, certainly, you will be held liable. Is that the ruling
in the court in the case of Pp vs Yatar? (Father’s side question: how
about the affidavit of a dead person, can it be accepted? I’m just
curious. DBL:In evidence, you will learn that there can be many uses
of documents. As to the substance on what the affiant has said on
the affidavit, the content, it may no longer be admitted as evidence
in order to prove the truthfulness of the narration of facts in the
affidavit. But, it may be a proof that at one point, that dead person
has executed an affidavit done. Kakuha mo class? Proven nga naay
affidavit pero d na maprove if tinuod ba ang sulod sa affidavit. The
judge may consider it, but he may be questioned if ever because in
such case, he will be admitting evidence which is hearsay)
Right to be Heard, you have already studied this. Right to present
evidence and be present in the trial. Last time we ended to the
matter to the right to have counsel. We also talked about the duty
of the judge to afford the accused every opportunity to hire his own
counsel. This right may be waived, I’ll show you the exact wordings
of the Rules of Court later on a valid waiver to right to counsel. But
first, what is trial in absensia? Of course, it is the trial conducted in
the absence of the accused. It is allowed provided the conditions
mentioned earlier are complied with. First, dapat nanay
arraignment. Kung wa pa arraignment, dapat i.compel nimo ang
accused to be present to be arraigned. That is why we said that
arraignment would require the presence of the accused. And that’s
one of the instances where the presence of the accused can be
compelled. Second, the accused must have been duly notified of the
hearing. Of course, to afford him of the opportunity to be present.
Third, kay absent man cya, dapat ang reason nya kay unjustifiable.
So trial in absensia may be conducted. Why is it important to comply
with the conditions? Because as a rule, there should be the presence
of the accused in every proceedings but that is a right where the
accused can waive.
And then, for purposes of requiring the attendance of the accused,
you should take note of the instances under which this can be done.
First, arraignment, as mentioned earlier. Second, for positive
identification. So that means for example, the accused has not
posted bail and therefore there’s no proof of identity in the record
of the case, then you can ask the court to issue a warrant of arrest,
properly termed as bench warrant, so that the accused will be
compelled to appear for purposes of identification. But for many
cases, the accused may have already posted bail and with this
posting of bail, he should have already pictures, kanang mugshots.
So instead of asking the witness to personally identify the person of
the accused, which you may have seen in the movies. Positive
identification is an element of the evidence for the prosecution that
the person identified is really the accused. Third is promulgation, as I
have said earlier.

Can the right to be heard be waived? Yes, I think someone
mentioned here the standard in waiving this right. That he can
properly protect his rights without the assistance of the counsel.
Ayaw nang he can properly defend kay lisud na, protect his rights
lang. It’s for the court to determine that.
Then we go to the right to be informed of the nature and cause of
accusation. We have learned that this is accomplished during the
arraignment. You know that in the arraignment, basahon ang
information, indictment, and the accused is asked to state is plea,
whether guilty or not guilty. I will to you the requirements of the
sufficiency of information, this is the rule: “It is the description, and
not the title of the offense that controls”. Pananglitan d.i class, ang
title sa offense niya is..dba there are various ways that the crime of
estafa is commited? Naay abuse of confidence or thru deceit. What
if the title of the case says “People of the Phil vs. Juan Dela Cruz for
Estafa under Art 315 of the RPC, par 2, kanang deceit, for example”.
Unya ang body sa information, ang iyang allegation didto kay
mupoint to Estafa thru Abuse of Confidence, rather than Deceit.
May the accused claim that his right to be informed of the nature of
the accusation had been violated? Because what if you are really
convicted to Estafa thru abuse of confidence where the title of the
case stated Estafa thru deceit. Kabaw nakas tubag, it is the
description of the body that governs, not the offense. So i.disregard
rana sir? Yes, it may be disregarded. In fact, during the trial, it may
be amended. Because it is the body that governs, not the title.
Conviction cannot be made on crime not charged. But may an
accused be convicted of a lesser offense as that of the crime charged
against him? Where did you learn that? What is important is all the
elements of the lesser offense are all subsumed, covered in the
greater offense. So if the charge for example is Serious Physical
Injuries but the evidence will show that it is only Slight Physical
Injury, then there is no violation of the nature and cause of
accusation right. What’s the rule now on aggravating and qualifying
circumstance? In the past, if the information fails to allege the
qualifying circumstance, but was proven in the trial, it may only be
appreciated as generic aggravating circumstance. That’s the rule
before. Karon giklaro na. If not alleged in the complaint, cannot be
appreciated dayon even if proven during the trial. Again, it is part of
the right of the accused to be informed of the nature and cause of
the accusation.
This is the mandate of Rule 116 of ROC on the Sufficiency of the
complaint of the information: “A complaint or information is
sufficient if it states the name of the accused, the designation of the
offense by the statute, the acts or omissions complained of
constituting the offense, the name of the offended party, the
proximate time of the commission of the offense(mao nang usually,
“on or about” jud na ang inyong makitan), place where the offense
was commited(dili kinahanglan specific, importante lang na masud
sa jurisdiction sa court na gi.file.an).
For the cause of action, you go to Sec.9 Rule 110 of ROC in relation
to the case of Lacson vs. Exec Sec. (read nlng section 9). Rule of
thumb, the recital must be of facts, and not of law. It should not be a
conclusion of law. Kung muingon ka na “the crime was committed in
the discharge of their functions”, d mana conclusion of fact,
conclusion of law mana. How will you know that it was done in the
discharge of their functions? You must state there what
circumstances that constituted the commission of the act in relation
of the discharge of their function. Actual recital of facts of the
complaint in the information.
6.) RIGHT TO MEET WITNESS FACE TO FACE
- This does not mean though that the accused himself
should meet the witness face to face. It can be done of course by or
in fact in most cases, and it should be through the counsel.
How is this accomplished?
You have your RIGHT TO CROSS-EXAMINATION.
Unsa man na ang cross examination?
The prosecution will present the witness. So he is the
witness for the prosecution. The prosecutor will conduct
examination to prove his evidence in chief. That is DIRECT
EXAMINATION.
So di ra mangutana ka… xxx nag present ka sa evidence in
chief. Witness of the prosecution.Ang Defense after sa direct
examination will conduct the CROSS-EXAMINATION.
The purpose of which is to test the truthfulness, veracity,
credibility of the testimony and the materiality and competence of
course of the testimony of the prosecution. Mao na gitawag na
CROSS kay ang lain na lawyer ang mung examine. That is cross-
examination that compiles with the right of the accused to meet the
witness face to face.
That is why an affidavit for example, not testified in court
shouldn’t be admitted in evidence. Ngano man?Unsaon man nko
pag cross-examine na iya ra man papel ang gisubmit sa court. How
could I cross-examine the paper? Di ba? He should be instead IN THE
WITNESS STAND.
xxx
Question: is cross-examination only limited to the direct
examination?
Rule: Cross examination should be limited to the direct
examination.
Exception: If the purpose is to discredit or question the
credibility of the witness, then any question related to his
credibility will pass.
Example: Mr.Gapanas, witness in the rose pharmacy.
Atty: Mr. Witness, could you honestly say in the court that
on one point you have never been convicted in a crime?
Prosecutor: Irrelevant. Not covered by the direct.
Judge: Is there a purpose for your question?
Atty: Credibility, your honor.
Judge: Why? Is there evidence that he committed a crime,
that he was convicted with a crime?
Atty: Yes, your honor.
Judge: Would this test the credibility?
Atty: Yes, your honor. Again Mr.Gapanas, would you tell
this court whether or not you have been convicted of a
crime?
G: Yes. Yes.
Atty: And is it not that you have been convicted of falsely
testifying in court in 1999?
G: Yes.
Atty: And is it not also correct that you have been
convicted of the crime of forgery?
G: Yes sir.
Forgery, falsely testifying, naa pay estafa… What is the
purpose?
You know class; the CREDIBILITY OF EVIDENCE SHOULD COME
FROM:
a. A credible witness
b. The testimony itself must be credible (believable)
So ikaw na witness dapat credible ka, believable ka. At the
same time ang imo gisulti must be credible. As if naa na an
gduha, you are a credible.
Credible ka because you are a priest, pastor or the pope; dali
katuohan of course because of your status in the society. That
does not necessarily follow that your being credible and ang
imo sad testimony is also credible. is also separate.
Example:
Atty: so you are saying that the accused killed the
victim being using his own fist?
W: Yes sir.
Atty: How did he do that?
W: It was so quick sir but I just saw the accused making a
motion like this and like this (boxing) and the victim fell
and he died instantly.
(Pag-examine medico-legal) iya jaw nabalhin sa pikas.
Medico-legal: Probably resulted from a heavy object.
Ang witness kay credible hah, kay M.A. o doctor cya og
theology, pero ang sa iya testimony kay ang nakapatay kay
komo. Dili sad katuohan because of the physical evidence. The
truth diay aning kasuha kay gitagakan diay cya og bato
pagkahuman og sumbag. See, the testimony must also be
credible, other that the witness himself must is credible.
Anyway, the same is true kanang mga medical certificate or any
certificate for that matter or that anyone who issues an affidavit,
who certifies a document bahala na kung kinsa na sila basta pag
ingon na document whether certification or affidavit is submitted in
court, siya mismo must appear para ma cross-examine. There many
cases that was acquitted because of that.
Direct examination
Rule (under the Rules of court): one witness, one day rule. Direct
examine ang witness karun dapat on the same day ang pikas counsel
kay mung cross examine napa ra wala nay delay. Pero because of
the clogged dockets of our court pag take effect anang rule (6-7
years ago) grabe kayo ka strict sa mga judges. So nig ingon na do you
have a witness next meeting? Yes. Ask name if we may know who is
the witness para maka ask name ngano siya mung testigo. Maka
check name if “expert” (not the true expert) witness siya like Jessica
Alfaro, professional witness. Sige lang balik balik until they believe
their lies. After naa kay mahuman name tig alas 12 ala una sa hapun
kay 20-30 cases man naa pa dyud 10 witnesses. Direct examination
na mahuman og 30 mins to 1hour. Naa pa dyud mga abogado na
“tiguwang na hinay”.
So unsa na nahitabo karun class? Ang direct examination karun, man
ang cross-examination sunod nana hearing. Man dili naman mung
tungha ang witness na gi direct. So, dili siya ma cross.
What will happen to the DIRECT TESTIMONY THAT WAS NOT
SUBJECT TO CROSSED?
It depends on the reason why wala siya katungha. If it is
unjustifiable refusal, to attend despite of notice and hearing, the
direct testimony will not be admitted as a testimonial evidence.
TESTIMONY NOT SUBJECTED TO CROSS EXAMINATION ARE
EXCLUDED.
Sayang, of course saying.Because of the Right of the
accused to meet the witness face to face.
Sir, IF NOT COMPLETED ANG CROSS-EXAMINATION. Depended sad.
Witness died pero naka start na iya cross-examination?
Valid to the extent of the cross-examination.
Mao bitaw tong naka bati sa atong systema. Delay delaydelay... after
direct examination, threat to witness… xxx
Right to be present during trail is modified in Trial in absentia rule.
PP vs. Givera:
Oral testimony may be taken into account only when it is
complete, that is the witness has been wholly cross-
examined by the adverse party or the right to cross-
examine is lost wholly or in part thru the fault of such
adverse party. But when cross-examination is not and
cannot be done or completed due to causes attributable
to the party offering the witness, the uncompleted
testimony is thereby rendered incompetent.
7. Right to COMPULSORY PROCESSES
- The right to request THAT WITNESSES BE SUBPOENAED
AND EVIDENCE BE PRODUCED IN COURT.
Why? To enable the accused to be able to present evidence with
fairness, because you know, the playing field is not balanced. To
level the playing field. The accused is going out with no less than the
state and its resources (prosecutor – People of the Philippines, NBI,
CIDG, etc.) It’s easy for the prosecution (state) to collect the
evidence. Ikaw accusado, unsa ra man imo? “with God as my
witness” raka kotub. xxx so to be able to do that is to give the accuse
the right to compulsory process.
Pwede siya mung request sa judge that a subpoena be issued
compelling the witness to appear in court.
Theoretically, nana siya na right pero in litigation as a matter of
practice, we don’t do that a lot. We don’t compel witnesses. Ngano
man? A compelled witness, you don’t expect to cooperate with you.
You don’t expect him to give favorable testimony.
In some parts of Europe, di ka pwede makigstorya sa imo own
witness. Saatopwedena.xxx
There is that right(compulsory processes) but it is not always availed
of because you don’t expect favorable testimonies for the accused.
In any case, naa man sad caso na na mag involve og documents.
Kana pwede.
SUBPOENA AD TESTIFICANDUM – to testify
SUBPOENA DUCES TECUM – to testify and to bring the documents.
You know for a fact na kana na document kay naasa office sa
government. Dili naman na nmo kinahanglan I rehearse kay only to
bring the document naman.
8.) RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL
Delaying is not incompatible to the right to speedy trial, provided
that the delay is with reason. What is important is that delay is not
unreasonable.
PP vsGines. Basis of the delay: eye operation.
Nelson Imperial case. Natural ma dugay dyud ang sa case kay sige og
absent ang prosecutor kay sige man sad sila og file og certiorari,
kinahanglan pa iresolve. So basta lang ang delay is not attributable
to the state but due to the causes beyond the control. Ok rana ang
delay.
Remember, why is the right to speedy trial is important? Because in
violation of the right to speedy trial, a case may be dismissed
because of reason of that. And don’t you know that a dismissal of
the case by a violation of that right will allow DOUBLE JEOPARDY to
set in. Meaning the case cannot be re-filed, cannot be reinstated
anymore. The other ground for a dismissal where double jeopardy
may set in is where a case is dismissed as a result to a demurrer to
evidence filed by the accused.
Demurrer to evidence – the accused will file that motion on the
basis that there is not enough evidence for his conviction. Human na
present of evidence ang prosecution. DOUBLE JEOPARDY.
Right to privacy and alleged prejudicial publicity. We’ll start from
here on Saturday and proceed to the next rights, especially DOUBLE
JEOPARDY. You have to take note of that.
RIGHT AGAINST DOUBLE JEOPARDY
“No person shall be tried twice for the same offense.”
Because it says double jeopardy, the only way it can be invoked is
when you have a first jeopardy and a second jeopardy. Naa nay
technical reason. The first jeopardy must have already attached
before you begin talking about the second jeopardy. So you have to
talk about first jeopardy before you talk about second jeopardy. This
means that once there is a first jeopardy, and there is a 2
nd
jeopardy,
the second case must be dismissed for violation against the right
against double jeopardy.
If you know someone who has faced a criminal offense, the
experience is horrifying. Di lalim. Imagine, its his liberty that is at
stake, labi na dunay death penalty. Not to mention the humiliation
that one brings to his person, family, friends and community as a
result of the criminal prosecution. And after the termination of one,
you vex him again? Round 2? It’s inhuman class, for a state not to
provide a rule of double jeopardy. A similar rule in civil case is Res
Ajudicata/ Res Judicata. At least in civil cases, noble man gihapon
ang intention diha- there should be an end to litigation. That’s the
only way we secure property rights of individuals. How do you
secure rights of properties kung every now and then it is under
litigation? A litigation that will never end.
If the purpose of res judicata is to put an end to litigation, far more
important is the purpose of double jeopardy. This is not just to
protect property, but LIFE itself. So that is the idea of double
jeopardy.


How do you evaluate if there is 1
st
jeopardy? There are elements:
1. there must be a valid complaint. Naa pajui cases class na dritso sa
court, you don’t have to go to the fiscal especially in municipalities –
dritso sa court.
2. Filed before a competent court.
3. There must be a valid plea – mao na nay arraignment. So walay
double jeopardy kung wa pai arraignment. If you are really for truth
and genuine admin of justice, never fear to speed up a criminal
proceeding because when this case will be dismissed, naa na ang 1
st

jeopardy. And if they file a case, double jeopardy na.
4. Aquittal/ conviction/ dismissal of complaint without express
consent of the accused.

Naa gani nang 4 then naa na ang 1
st
jeopardy.

So kanang situations like this one: file ka og information didtos
fiscals office. Why do you file a information before the fiscal’s
office? Why not in court dritso? Because it’s the fiscal who actually
files a criminal action in court. What will happen in a fiscal’s office?
Conduct og preliminary investigation. For cases 4years 2 months and
1 day and above, matter of right ang preliminary investigation. Kung
4 years 2 months and below, preliminary investigation becomes
optional on the part of the fiscal. What are the possible scenarios
there? (1) the case gets dismissed (2) the case prospers and the
fiscal prepares the info and files it in court.

What if the case gets dismissed, may another complaint be filed by
the complainant before the fiscals office? The same crime, act or
offense. Will that amount to double jeopardy? Of course it is
impossible for double jeopardy to attach cos wa pa gani na abot sa
court, naa pa gani sa fiscals office. Valid complaint or information
filed in competent court. Aside from that, naa paman gani
requirement of valid plea. As I have said, you take note of all of this
to know if the 1
st
jeopardy has already attached. It can be filed as
many times as you want cos wa pamai double jeopardy.

Validity of complaint – specific allegations, name of the complainant
etc.. and prepared by the fiscal para valid
Competent court- a court which has jurisdiction of a case which
means that if this case had been decided even if naabot sa point na
ge acquit but made by a court that has no jurisdiction of a case kay d
na pwede (in criminal cases, venue is jurisdictional. So the court
where the crime has been committed will only have jurisdiction over
the case)
Valid and standing plea – a plea that has not been withdrawn. May
an accused refuse to enter a plea. Yes, it will not invalidate the
arraignment cos under ROC if an accused refuses to enter a plea, a
plea of not guilty will be entered into the record. So refusal to enter
a plea is a plea of not guilty – sometimes but youll learn that later.
Acquittal – remember this is immediately executor. There’s no way
a decision of acquittal will ever be reversed. the only way it can be
done is when you allege grave abuse of discretion amounting to lack
or excess of jurisdiction. But that is highly exceptional. It happened
only one time in Lagman case. The judgment of acquittal can never
be appealed. But what can be appealed is the civil aspect of the
case. It is not violation of double jeopardy of you appeal the civil
aspect of the case.

Now what probably is confusing class is dismissal of the complaint
without the express consent of the accused. Naa d.ay sir dismissal
other than acquittal? YES. There are a lot of possible reasons when
the court will be compelled to dismiss a case. BUT whether or not
the first jeopardy will attached will depend on the express consent
of the accused.

FIRST JEOPARDY
ELEMENTS:
1. Valid complaint or information
2. Filed before a competent court
3. Valid plea
4. Termination of case
- Acquittal
- conviction
- dismissal of complaint without express consent of
the accused
EXCEPT ON TWO INSTANCES:
- dismissal based on violation of the right to speedy
trial
- insufficiency of evidence
There are two instances by the way as an exception. Unsaon mana
sir, unsa may example of dismissal without the express consent of
the accused? Pwede man. Mo ingon ang prosecutor, “Your honor we
will be looking for the private complainant.” Mo.ingon dayon ang
court, “So what are we going to do in this case? We will wait for the
private complainant? “ The court cannot wait, in fact time time waits
for no one. Dba. “I hereby order you whether or not you will present
a witness next hearing. Kung walay witness this case is dismissed.” A
dismissal can either be the merits or not on the merits. In this
case,this is not a dismissal on the merits and this is where you need
to know whether the dismissal is with the express consent of the
accused or without the express consent of the accused. Pananlitan
motunga na ang private complainant and now willing to testify,
ingon dayon sa Fiscal, “Fiscal Ok nako, naayo nako, nasakit ra ko”.
May a case be refile for example? This is a dismissal without the
express consent of the accused. Correct? So first jeopardy wala ni
attach. That is why very important, law practitioners if you want to
settle with the accused, mo.ingon ang akusado bayran lang ni nako
ug 100php pero installment. So pila mani katuig?100 thousand,
taga.i lang ko ug 5 yrs. Sige na lang luoy man. In the meantime while
waiting for the full payment within a period of 5 yrs, unsa may
buhaton nimo sa case? the case will have to be dismissed. Usually it
is called probational dismissal. As a matter of practice the court will
asked the accused to make an express consent. Ngano man? It is for
the benefit of the private complainant, kay kung di siya mo honor sa
iyang commitment to fully pay ma.reinstate ang case. wa may
double jeopardy. Why? Because it is done with his express consent,
meaning there is no double jeopardy because the first double
jeopardy will not attach if the dismissal is with the express consent
of the accused.



BUT there are two instances where although it is with the express
consent of the accused there could still be double jeopardy:
1. if the dismissal is based on violation of the right to speedy trial;
jurisprudence has it that if this is the reason for the dismissal of the
case it shall be considered dismissal of the merits and it has
therefore the effect of an acquittal which is therefore immediate
executory.


Let me repeat that. If the dismissal is with the express consent of the
accused there is no double jeopardy. In two instances however,
even though it is upon the expressed consent of the accused there is
still double jeopardy: 1) is the dismissal is based on violation of the
right to speedy trial. For one it is usually in fact initiated by the
accused. Siya man ang usually mo.move, “I move your honor that
the dismissal of the case for the violation of the ground that there is
a violation of the right to a speedy trial. For five times already the
prosecution has failed to present a single witness”. Dba. Dismissed.
Kinsay nagmove? Accused! It is with his express consent. Is there
double jeopardy? As a rule unta kay with his express consent naay
double jeopardy but here it is an exception because although it is
with his express consent there is no double jeopardy. 2) when it is
dismissed in the basis of insufficiency of the evidence. There is an
issue in the book of Bernas regarding in the second instance. Kabaw
ka in actual practice a case will be dismissed to a ground of
insufficiency of evidence if the accused files a demurrer to evidence.
Unsa manang demurrer to evidence? Motion na from the accused
upon na sa iyang express consent. Dba. Mao man gyud unta na,
“upon the express consent”, ana-on tan a pagdiscuss. But then again
even if it is with his express consent, dismissal of the case by reason
of insufficiency of evidence even if with his express consent of the
accused, it is dismissal on the merits. Ngano man Insufficiency of
evidence? Are you familiar with demurrer? As I have said after the
presentation of evidence by the prosecution.
Prosecution: “Your Honor, we are formally offering our
exhibits..etcetc.” “You honor we move for the admission of the
exhibits to form part of the evidence for the prosecution”.
Judge: “Alright the evidence marks as exhibits A-Z are hereby
admitted as evidence for the prosecution.” Prosecution: “With the
admission of the evidence for the prosecution, you Honor we rest
our case.”
Pag.ingon gani ug “we rest our case”, that means it is the term of
the defense to present and evidence. BUT the defense or the
accused has the option of not presenting evidence at all. Remember!
The burden is with the prosecution. That evidence within 15 days
after resting ang prosecution, mo.move siya ug dismissal of the case
on ground of insufficiency of evidence. Pwede decidan ang kaso on
the basis of evidence of the prosecution without regard any
evidence submitted by the accused. If granted ang motion,
maghearing of course oral argument whether or not indeed
evidence is insufficient. The dismissal is with the express consent
upon the motion of the accused yet it is the dismissal on the merits
and therefore there should still be double jeopardy.
WHAT IS A DEMURRER TO EVIDENCE?
prosecution rests on the ground of insufficiency of the evidence of
the prosecution
Court takes place of a demurrer, which pleading raised questions of
law as to sufficiency of the pleading apparent on the face thereof
squarely before the court a question as to the sufficiency of the
facts alleged therein to constitute a cause of action

This is the first kind of double jeopardy because if you look at the
constitution provision on double jeopardy it is either that the person
or the accused is prosecuted under statute in the first jeopardy and
also against another statute. Statute no. 2 but it does not mean that
it is a different statute to the other, ang buot pasabot ko lang class
na ang first jeopardy is the bases of the statute and the other one is
on the bases of a different statute. The test of a second jeopardy:

SECOND JEOPARDY
1. Sameness of the offense (means similarity in the
evidence required in conviction)
2. 1
st
offense is attempt or frustration of the second
offense
3. 1
st
offense is necessarily included the second
offense
Ex. Homicide then acquitted then sue for parricide



1. Sameness of the offense
Focus on the word offense because the word offense has a different
meaning. You have been acquitted of murder, under the RPC
manang murder under Art. 248 then a second jeopardy on the basis
of still murder is the same offense. Ngano man? Punished in the
same RPC. Ang problema an iron class kay if the first jeopardy is
estafa punished under sec. 315 RPC, unsay usual scenario anang
estafa? Issue ug cheque walay pundo or closed account. Usually
estafa is committed when there is deceit and the other one is when
there is grave abuse of confidence. In the case of postdated cheque
in estafa is required that the postdating or the issuance of the
cheque moves the victim to part with goods or money. Mao bitaw
na the usual term used as element kay deceit lage ang element
dapat “kaliwaan”. Issue ko nimo ug cheque, mao pay pagdeliver
nimo sa items and that if not had delivered the items to me that I
have issued the postdated cheque. Correct? In terms of bouce
cheque ni siya by reason of insufficiency of account or closed
account then there is estafa committed. What if wala na-establish in
the estafa casethe element of kaliwaan ining exchange of the good
then the cheque was issued? It is established d.ay class that the
cheque is issued as a payment of a pre-existing debt. Nareceive na
niya ang goods gahapon, Makita sa delivery receipt uya on the
folloing day usa siya ni.issue sa cheque supposedly as payment. Wa
manay estafa class because it is a payment lf a pre-existing debt,
walay deceit ana involve. But there is a violation of BP 22. If you are
for example charged of violation of BP 22, RPC statute, BP 22 is also
a statute. That test the sameness of an offense. The same ba ang
offense? NO. because 1 is punish in the RPC and the other is punish
in a different statute. Kanang sameness of the offense means there
is similarity in the evidence required for conviction. Naa ba d.ay
sameness? Na ang BP 22 wa mana ngrequire ug deceit and kaliwaan.
The gravamen of an offense of violation in BP 22 is a mere issuance
of a bouncing cheque, that’s all, with consideration of course. This is
shown by the fact that it is punished by a different statute. Walay
double jeopardy kung different statute.



2. 1
st
offense is attempt or frustration of the second offense
When you say offense belonging to one statute and most of the
offense is in the RPC. The concern in here class is the 1
st
offense is
either the attempt or frustration of the second or vice versa.
Meaning there are different stages in the commission of a crime,
ang kiha kay frustrated murder, acquitted siya sa frustrated murder.
Gikiha ug usab after sa acquittal g.usab niya,unsa man na kaso?
Attempted murder na. unsay different ana? Kay ang usa frustrated
and the other one is attempted. APIL. Whether it is the attempt or
the frustration of the other. That is still covered by this 2
nd
jeopardy.

3. 1
st
offense is necessarily included the second offense
Offense gihapon belonging to the same revised penal code. Unsa
mana?kiha nimo ug parricide, acquitted. Wala na establish sa
prosecution gi acquit. Kiha napud ug usab, nikiha ug homicide. Unsa
man d.ay ng homicide? What is the important element of homicide?
Killing. Dba. Is homicide necessarily included in parricide? Of course.
Dili kinahanglan na exactly the same because of the different
instances.


2
nd
kind of double jeopardy is:
Sec. 21, Art. III
No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another
prosecution for the same act.

Ang test here diri sa 2
nd
kind is when the 1
st
jeopardy is either a
statute and the 2
nd
is ordinance or vice versa pwede. Basta ang
pairing class kay kini 1
st
kind you have statute to statute and the 2
nd

kind is statute to ordinance. In the first kind the test is sameness of
the offense. What is the similarity required if it is the statute and
ordinance? Sameness in act. Naa nay double jeopardy. I have been
connected in a City Council for 6 yrs for BOPK. I serve there as a
consultant of the laws and governance for 6 yrs. Nya nay nakit.an
nako na, kini gud mga konsehal nato ilang determination of a
successful councilor is padaghanay ug ordinance. Nya ang almost
every act endeavored covered mana by statute. Kabaw ka unsa ilang
himuon? i.cut ang paste mana nila ang statute himuon nila ug
ordinance. There as a time 2-3 yrs nga n.abot sa akong table an
ordinance dealing with a dangerous drug. Ang penalty maximum
imposed to a city ordinance is 5000php ang prisonment kay 6 mos or
1 yr. ang penalty can never be higher. Karon kung akoy abogado sa
akusado apprehended with drugs, you know what I’l be doing?
Estoryahon nako ang fiscal, “ ayaw ko chargei ug Dangerous Drug
Act ha. Chargei ko ug ordinance.” Dali.on gyud. Bayad man. Pag.abot
didto sa korte tanan convicted. Karon filan ka ug violation of the
Dangerous Drug Act ang penalty kay reclusion perpetua. Nawa na.

Ganiha walay double jeopardy kaw walay sameness of the offense,
kay nganong walay sameness of an offense kay 1 is punished by a
statute and the other is punished by a another statute. It becomes
the same offense if punish ang 2 crimes punished by the same
statute and the same offense we are talking about the RPC here.
Dinhi kay sameness of act man, convicted naman sa ordinance by
possession of drugs, di nako maconvicted under the Dangerous
Drugs Act even if different law to siya. Unlike diri na walay double
jeopardy, didto naa na and they hated me for that because for
several times daghan kaayong mga councilors na ngsige lang. bisan
kanang mga Bldg. Code himo sad sila, unya mapugos ka ug lower sa
penalty. Tan.awn nimo ang Bldg. Code dagko kaau ang penalty unya
ari nimo ibutang sa Ordinance gamay ra ang penalty. Kanang mga
ordinance about discrimination of gender unsa pa na diha. Unya pila
may penalty na ma.impose? because very few knows that if it is the
ordinance or a statute sameness of the act test. Remember! Ang act
may be punished by a several statute kung puro na sila statute way
problema. No double jeopardy kay different man pro kung
ordinance ug statute the same act barred. Take note of the doctrine
of a Supervening Event! Not a violation of double jeopardy.
Pananlitan file ka ug kaso frustrated murder, file ka ug kaso,
gidunggab nimo with the use of kitchen knife namatay pagkataod2
during the pendency of the case or another na terminated ang case.
nahimo na nuon ug consummated ang frustrated murder because of
a supervening event. Pwede ba 1
st
gikiha nimo ug serious physical
injury unya gikiha nimo ug murder? So the doctrine of supervening
event will not barred the filing of another case as a result of a
commission of the crime.