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uesday, June 15, 2010

Legal Procedures 13: Motions during trial of a criminal case

Notes: (1) Please surf to thecomplete list of available
PDFs on legal procedures in criminal and civil cases.

(2) How to file a demurrer to evidence

There are two ways of asking for the leave of court to file a demurer to evidence: oral or
written. After the public or private prosecutor has formally offered his evidence in court, the
defense lawyer can immediately ask the court for its express leave to file the demurrer. In
granting the leave, the court also states a time period within which the demurrer must be filed,
copy furnished to the prosecutor. The prosecutor asks for the same period of time within which
to file an opposition. The next hearing is scheduled giving allowance for the filing of the
demurrer, the opposition and the courts action on the matter (whether to grant or deny the

The defense counsel can also file a motion asking for the express leave of court to file the
demurrer. The demurrer itself is attached to the motion.

(3) When the fiscal is absent or has to leave the hearing

The fiscal or public prosecutor has the control and supervision of the prosecution. In his
absence, hearings must be reset even if the private complainant has his own lawyer. If the fiscal
has to leave the hearing for some reason, he must endorse or authorize the private prosecutor.

(4) Remedy when the doctor who signed the medico-legal certificate is no longer
available to testify

Doctors who work in government hospitals may be transferred to other institutions or may have
already left the country. If the government doctor who signed the medico-legal certificate is no
longer available to testify, the prosecutor can ask the court to issue a subpoena duces tecum
and ad testificandum for the hospitals records custodian. The records custodian will be directed
to bring to court a certified true copy of the medico-legal certificate and to testify on the
authenticity of such record.

A related issue: Can doctors in private hospitals issue a medical certificate? Yes they
can. However, if a patient tells a private doctor that the certificate is needed for the filing of a
criminal case, the doctor will usually refuse to issue a certificate. The doctor will tell the patient
to have himself or herself re-examined by a government doctor. The reason is that usually the
private doctor does not want to be bothered in going to court and testifying.

Motions during trial of a criminal case

1. Consolidation of cases (Rule 119, Sec.22); separate trials (Sec. 16)

2. Motion for postponement - due to the absence of a party or counsel because of illness, or a
conflict in schedules of the counsel de parte or the private prosecutor; absence of a material
witness, etc.

3. Motion to secure documents and attendance of witnesses - subpoena ad testificandum,
warrant of arrest, contempt, perpetuation of testimony, subpoena duces tecum, modes of
discovery, bail for witnesses.

4. Exclusion of other witnesses - to prevent other witnesses from hearing the testimony of the
witness currently being examined.

5. Exclusion of the public - the court may by itself exclude the public if the evidence to be
presented is offensive to decency or public morals.

6. Provisional remedies - may be availed of in the civil action deemed instituted with the
criminal action insofar as they are applicable, e.g. attachment of the property of the accused
(Rule 127, Section 1 and 2).

7. Demurrer to evidence - may be filed by the defense after the prosecution rests its case,
based on the insufficiency of evidence. If the motion is granted, the accused is in effect
acquitted. If the court denies the motion, the accused may present his evidence. When it is filed
without express leave of court, the accused waives the right to present evidence and submits
the case for judgment on the basis of the prosecutions evidence. (Rule 119, Sec. 23)

8. Dismissal of the case

(a) If the private complainant executes an affidavit of desistance, the fiscal files a motion to
dismiss the case. The judge grants it if the case cannot be prosecuted successfully without the
participation of the complainant.

(b) If the complainant has been absent several times despite due notice, the accused may move
for provisional dismissal based on failure to prosecute, or dismissal on the merits by invoking his
Constitutional right to a speedy trial.

(c) The accused can file a petition for mandamus to compel dismissal of the information, or a
petition for habeas corpus, in case postponements lead to his detention beyond a reasonable
period of time.

9. Motion to discharge the accused to become a State witness - the court may direct one or
more of the accused to be discharged with their consent, provided that
(a) there is absolute necessity for the testimony of the accused whose discharge is requested;

(b) there is no other direct evidence available for the proper prosecution of the offense, except
such testimony;

(c) the testimony can be substantially corroborated in its material points;

(d) said accused does not appear to be the most guilty; and

(e) said accused has not been convicted of any offense involving moral turpitude.
The discharge shall amount to an acquittal and shall be a bar to his future prosecution for the
same offense. (Rule 119, Section 17 and 18)

10. Two ways of becoming a State witness: (A) under Section 17 of Rule 11 9 or (B) under
Republic Act No. 6981 Witness Protection and Security Benefit Program (Yu vs.
Velasco, GR 142848, June 30, 2006)
The discharge of an accused under Republic Act No. 6981 as availed of by the prosecution in
favor of the private respondents, is distinct and separate from the discharge of an accused
under Section 17, Rule 119 of the Revised Rules on Criminal Procedure.

The discharge of an accused to be a state witness under Republic Act No. 6981 is only one of
the modes for a participant in the commission of a crime to be a state witness. Rule 119,
Section 17, of the Revised Rules on Criminal Procedure, is another mode of discharge. The
immunity provided under Republic Act No. 6981 is granted by the DOJ while the other is
granted by the court.

Rule 119, Section 17, of the Revised Rules on Criminal Procedure, contemplates a situation
where the information has been filed and the accused had been arraigned and the case is
undergoing trial. The discharge of an accused under this rule may be ordered upon motion of
the prosecution before resting its case, that is, at any stage of the proceedings, from the filing of
the information to the time the defense starts to offer any evidence.

On the other hand, in the discharge of an accused under Republic Act No. 6981, only
compliance with the requirement of Section 14, Rule 110 of the Revised Rules of Criminal
Procedure11 is required but not the requirement of Rule 119, Section 17.

More to the point is the recent case of Soberano v. People where this Court held:

An amendment of the information made before plea which excludes some or one of the accused
must be made only upon motion by the prosecutor, with notice to the offended party and with
leave of court in compliance with Section 14, Rule 110. Section 14, Rule 110 does not qualify
the grounds for the exclusion of the accused. Thus, said provision applies in equal force when
the exclusion is sought on the usual ground of lack of probable cause, or when it is for utilization
of the accused as state witness, as in this case, or on some other ground.

At this level, the procedural requirements of Section 17, Rule 119 on the need for the
prosecution to present evidence and the sworn statement of each state witness at a hearing in
support of the discharge do not yet come into play. This is because, as correctly pointed out by
the Court of Appeals, the determination of who should be criminally charged in court is
essentially an executive function, not a judicial one.
11. Supreme Court ruling on state witnesses: Rimberto T. Salvanera vs. People of the
Philippines, G.R. No. 143093, May 21, 2007
According to petitioner, the testimony of an accused sought to be discharged to become a state
witness must be substantially corroborated, not by a co-accused likewise sought to be
discharged, but by other prosecution witnesses who are not the accused in the same criminal
case. Petitioner justifies this theory on the general principles of justice and sound logic. He
contends that it is a notorious fact in human nature that a culprit, confessing a crime, is likely to
put the blame on others, if by doing so, he will be freed from any criminal responsibility. Thus, in
the instant case, petitioner supposes that both Abutin and Tampelix will naturally seize the
opportunity to be absolved of any liability by putting the blame on one of their co-accused.
Petitioner argues that prosecution witnesses Parane and Salazar, who are not accused, do not
have personal knowledge of the circumstances surrounding the alleged conspiracy. Thus, they
could not testify to corroborate the statement of Abutin and Tampelix that petitioner is the
mastermind or the principal by induction.

We agree with the Court of Appeals in dismissing this reasoning as specious. To require the two
witnesses Parane and Salazar to corroborate the testimony of Abutin and Tampelix on the exact
same points is to render nugatory the other requisite that there must be no other direct
evidence available for the proper prosecution of the offense committed, except the testimony of
the state witness. The corroborative evidence required by the Rules does not have to consist of
the very same evidence as will be testified on by the proposed state witnesses. We have ruled
that a conspiracy is more readily proved by the acts of a fellow criminal than by any other
method. If it is shown that the statements of the conspirator are corroborated by other evidence,
then we have convincing proof of veracity. Even if the confirmatory testimony only applies to
some particulars, we can properly infer that the witness has told the truth in other respects. It is
enough that the testimony of a co-conspirator is corroborated by some other witness or
evidence. In the case at bar, we are satisfied from a reading of the records that the testimonies
of Abutin and Tampelix are corroborated on important points by each others testimonies and
the circumstances disclosed through the testimonies of the other prosecution witnesses, and to
such extent that their trustworthiness becomes manifest.

As part of the conspiracy, Abutin and Tampelix can testify on the criminal plan of the
conspirators. Where a crime is contrived in secret, the discharge of one of the conspirators is
essential because only they have knowledge of the crime. The other prosecution witnesses are
not eyewitnesses to the crime, as, in fact, there is none. No one except the conspirators knew
and witnessed the murder. The testimonies of the accused and proposed state witnesses Abutin
and Tampelix can directly link petitioner to the commission of the crime.