You are on page 1of 22

MATTERS CONSIDERED IN PRE-TRIAL CONFERENCE

a) plea bargaining;
b) stipulation of facts;
c) marking for identification of evidence of
the parties;
d) waiver of objections to admissibility of evidence;
e) modification of the order of trial if the accused admits the charge but interposes a lawful defense;
f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.

Duty of the Branch Clerk of Court


During the preliminary conference, the Branch Clerk of Court shall
(a) assist the parties in reaching a settlement of the civil aspect of the case,
(b) mark the documents to be presented as exhibits and copies thereof attached to the records after
comparison,
(c) ascertain from the parties the undisputed facts and admissions on the genuineness and due
execution of documents marked as exhibits, and
(d) consider such other matters as may aid in the prompt disposition of the case

If a plea bargaining is agreed upon, the court shall


(a) issue an order to that effect;
(b) proceed to receive evidence on the civil aspect of the case; and
(c) render and promulgate judgment of conviction, including the civil liability or damages duly
established by the evidence

Effect of the pre-trial order


The pre-trial order shall
(a) bind the parties,
(b) limit the trial to matters not disposed of, and
(c) control the course of the action during the trial, unless modified by the court to prevent manifest
injustice

Stages in the judicial proceedings with JDR;


(a) from the filing of a complaint, to the conduct of CAM and JDR during the pre-trial stage; and
(b) pre-trial proper to trial and judgment.

Cases subject to mediation for JDR


(a) All civil cases, settlement of estates, and cases covered by the Rule on Summary Procedure, except
those which by law may not be compromised;
Criminal cases like violation of traffic rules and regulations and violation of municipal or city ordinances
although included in the list of cases under summary procedure should not be mediated because they
cannot be compromised and might be a source of corruption if mediation pushes through.
(b) Cases cognizable by the Lupong Tagapamayapa under the Katarungang Pambarangay Law;
(c) The civil aspect of B.P. Big. 22 cases;

1
(d) The civil aspect of quasi-offenses
Examples of quasi offenses:
(i) Cases covered are acts committed by reckless or simple imprudence or negligence resulting for
example in slight, less serious or serious physical injuries;
(ii) Imprudence resulting in damage to property;
and,
(iii) Reckless or simple imprudence with violation of the motor vehicle law.
(e) The civil aspect of estafa and libel
(f) The civil aspect of theft

Delays to be excluded from computing the period for commencement of the trial
1. Delay resulting from an examination of the physical and mental condition of the accused;
2. Delay resulting from proceedings with respect to other criminal charges against the accused;
3. Delay resulting from extraordinary remedies against interlocutory orders;
4. Delay resulting from pre-trial proceedings; provided that the delay does not exceed thirty (30)
days;
5. Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or
transfer from other courts;
6. Delay resulting from a finding of the existence of a prejudicial question; and
7. Delay reasonably attributable to any period, not to exceed thirty (30) days, during which any
proceeding concerning the accused is actually under advisement;
8. Delay resulting from the absence or unavailability of an essential witness; an essential witness is
considered absent when his whereabouts are unknown or his whereabouts cannot be determined
by due diligence. He shall be considered unavailable whenever his whereabouts are known but his
presence for trial cannot be obtained by due diligence;
9. Delay resulting from the mental incompetence or physical inability of the accused to stand trial;
10. Delay from the date the charge was dismissed to the date the time limitation would commence to
run as to the subsequent charge had there been no previous charge if the information is dismissed
upon motion of the prosecution and thereafter a charge is filed against the accused for the same
offense;
11. Delay which is reasonable when the accused is joined for trial with a co-accused over whom the
court has not acquired jurisdiction, or, as to whom the time for trial has not run and no motion for
separate trial has been granted;
12. Delay resulting from a continuance granted by any court motu propio, or on motion of either the
accused or his counsel, or the prosecution, if the court granted the
continuance on the basis of its findings set forth in the order that the ends of justice served by taking
such action outweigh the best interest of the public and the accused in a speedy trial

Factors to be considered for granting continuances or postponements


(a) Whether or not the failure to grant a continuance would likely make a continuation of such
proceeding impossible or result in a miscarriage of justice; or
(b) Whether or not the case taken as a whole is so novel, unusual and complex, due to the number of
accused or the nature of the prosecution, or that it is unreasonable to expect adequate preparation
within the periods of time established therein

2
Prohibited grounds for a continuance
(a) congestion of the court's calendar or due to lack of preparation; or
(b) failure to obtain available witnesses on the part of the prosecutor

How to secure appearance of a material witness (Bar 1994; 1999)


1. Either party may, upon motion, secure an order from the court for a material witness to post bail for
such sum as may be deemed proper, if the court is satisfied upon either (a) proof, or (b) oath that a
material witness will not testify when required

2. If the witness refuses to post bail, the court shall commit him to prison until he complies or is legally
discharged after his testimony has been taken

Discharge of accused to be state witness.


Motion to discharge should be made by the prosecution BEFORE resting its case.

REQUISITES FOR DISCHARGE


1. absolute necessity for the testimony
2. no other direct evidence available for the prosecution
3. testimony can be substantially corroborated in its material points
4. accused not the most guilty
5. accused has never been convicted of an offense involving moral turpitude

Order of trial
The trial shall proceed in the following order:
1. The prosecution shall present its evidence first (a) to prove the charge, and (b) to prove the civil
liability in the proper case.
2. The accused will then present his evidence to prove his defense and the damages he sustained, if
any, arising from the issuance of a provisional remedy in the case;
3. The prosecution may present its rebuttal evidence unless the court the court allows it to present
additional evidence bearing on the main issue;
4. The accused may present sur-rebuttal evidence, unless the court allows him to present additional
evidence bearing on the main issue;
5. Upon submission of the evidence of the parties, the case shall be deemed submitted for decision
unless the court directs them to argue orally or to submit written memoranda

Trial in absentia requisites


(a) the accused has already been arraigned;
(b) the accused has been duly notified of the trial or hearings; and
(c) the absence of the accused or his failure to appear is unjustified

Instances when the presence of the accused is required


(a) at arraignment and plea, whether of innocence or of guilt;

3
(b) during trial, whenever necessary for identification purposes; and
(c) at the promulgation of sentence, unless it is for a light offense, in which case, the accused may
appear by counsel or representative. At such stages of the proceedings, his presence is required and
cannot be waived

Requisites of a judgment
(a) It must be written in the official language;
(b) It must be personally and directly prepared by the judge; and
(c) It must contain clearly and distinctly a (i) statement of the facts, and (ii) the law upon which it is
based

Contents of a judgment of conviction


(a) the legal qualification of the offense constituted by the acts committed by the accused;
(b) the aggravating and mitigating circumstances which attended the commission of the offense;
(c) the participation of the accused in the offense whether as (i) principal, (ii)accomplice, or (iii)
accessory after the fact;
(d) the penalty imposed upon the accused;
(e) the civil liability or damages caused by his wrongful act or omission to be recovered from the
accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate
civil action has been reserved or waived

Contents of judgment of acquittal


1. state whether or not the evidence of the prosecution
(i) absolutely failed to prove the guilt of the accused, or
(ii) merely failed to prove his guilt beyond reasonable doubt;
2. determine if the act or omission from which the civil liability might arise did not exist

Variance doctrine; variance between the allegation and proof


(a) the offense proved is different from the offense as charged in the complaint or information, and
(b) the offense charged is either necessarily included in the offense proved or necessarily includes the
offense proved

When judgment becomes final


(a) after the lapse of the period for appeal, or
(b) when the sentence has been partially or totally satisfied or served, or
(c) when the accused has waived in writing his right to appeal, or
(d) has applied for probation

Remedies before judgment of conviction becomes final


1. Modification of judgment
2. Reopening of proceedings
3. Motion for new trial
4. Motion for reconsideration
5. Appeal from judgement

4
Grounds for a new trial
(a) That errors ofiaw have been committed during the trial;
(b) That irregularities prejudicial to the substantial rights of the accused have been committed during
the trial; and
(c) That new and material evidence has been discovered

Requisites for newly discovered evidence


(a) The evidence must have been discovered after the trial;
(b) It could not have been previously discovered and produced at the trial even with the exercise of
reasonable diligence;
(c) It is a new and material evidence;
(d) If introduced and admitted, if would probably change the judgment

Grounds for reconsideration of the judgment


(a) Errors of law in the judgment which requires no further proceedings; and
(b) Errors of fact which also requires no further proceedings

The Constitution lays down the following principles on bail:


(a) All persons shall, before conviction, be bailable. This is the general rule which makes the right to bail
a constitutional right. Excepted from this general rule are those who are charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong. The person accused of such offense
however, shall be entitled to bail when evidence of guilt is not strong.
(b) The suspension of the privilege of the writ of habeas corpus does not impair the right to bail.
(c) Excessive bail is not to be required

Exception to the "no bail rule" in extradition proceedings


-bail may be applied for and granted as an exception, only upon a clear and convincing showing
(1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and
(2) that there exist special, humanitarian and compelling circumstances including, as a matter of
reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in
extradition cases therein.

Effects of failure to appear in the trial


1. The failure of the accused to appear at the trial without justification shall be deemed a waiver of his
right to be present and the trial may proceed in absentia (Sec. 2[c], Rule 114, Rules of Court).
2. The bondsman may arrest the accused for the purpose of surrendering the accused. The bondsman
may also cause the accused to be arrested by a police officer or any other person of suitable age and
discretion upon written authority endorsed on a certified copy of the undertaking

Forms of bail
(a) corporate surety,
(b) property bond,

5
(c) cash deposit, or
(d) recognizance

Release on recognizance may be ordered by the court in the following cases:


(a) When the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the
imposable penalty of which does not exceed six (6) months imprisonment and/or P2,000 fine,
(b) Where a person has been in custody for a period equal to or more than the minimum of the
imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying
circumstance, in which case, the court, in its discretion, may allow his release on his own recognizance,
or on a reduced bail, at the discretion of the court
(c) Where the accused has applied for probation, pending finality of the judgment but no bail was filed
or the accused is incapable of filing one (P.D. 968, Sec. 7); and
(d) In case of a youthful offender held for physical and mental examination, trial, or appeal, if he is
unable to furnish bail and under the circumstances envisaged in P.D. 603, as amended
(e) In summary procedure, when the accused has been arrested for failure to appear when required.
His release shall be either on bail or on recognizance by a responsible citizen acceptable to the court

Guidelines in fixing the amount of bail

(a) Financial ability of the accused to give bail;


(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on

No release or transfer of person in custody; exceptions


No person under detention by legal process shall be released or transferred except:
(a) Upon order of the court; or
(b) When he is admitted to bail

When bail is not required


1. Generally, bail is not required when the law or the Rules of Court so provide
2. When a person has been in custody for a period equal to or more than the possible maximum
imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice
to the continuation of the trial or the proceedings on appeal. Also, if the maximum penalty to which
the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive
imprisonment (Sec. 16, Rule 114, Rules of Court). In all these cases bail is not required prior to the
release of the person in custody.

6
3. In cases filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense punishable
by an imprisonment of less than four (4) years, two (2) months and one (1) day, and the judge is
satisfied that there is no necessity for placing the accused under custody, he may issue summons
instead of a warrant of arrest (Sec. 8[b], Rule 112, Rules of Court). Since no arrest is made, bail is not
required.
4. Under Sec. 1 of R.A. 6036, bail shall not be required if a person is charged with violation of a
municipal or city ordinance, a light felony and/or a criminal offense, the penalty of which is not higher
than six (6) months imprisonment and/ or a fine of two thousand (P2,000.00) pesos or both where it is
established that he is unable to post the required cash or bail bond

When bail is not allowed

1. A person charged with a capital offense, or an offense punishable by reclusion perpetua or life
imprisonment, shall be not admitted to bail when evidence of guilt is strong regardless of the stage of
the criminal prosecution
2. Bail shall not be allowed after a judgment of conviction has become final
3. Bail shall not be allowed after the accused has commenced to serve sentence

*The rule is that no bail shall be allowed after a judgment of conviction has become final. However, if
before finality of the judgment, the accused applies for probation, he may be allowed temporary liberty
under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his
release on recognizance to the custody of a responsible member of the community

When bail is a matter of right


(a) before conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in
Cities, or Municipal Circuit Trial Court;
(b) after conviction by the courts mentioned in letter "a;" and
(c) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua, or life imprisonment

When bail is a matter of discretion


-when the accused has been convicted in the Regional Trial Court of an offense not punishable by
death, reclusion perpetua or life imprisonment, the admission to bail becomes discretionary

When application for bail after conviction by the RTC shall be denied
1. If the penalty imposed is death, reclusion perpetua or life imprisonment, bail should be denied since
the conviction indicates strong evidence of guilt based on proof beyond reasonable doubt
2. Even if the penalty imposed by the trial court is not any of the above but merely imprisonment
exceeding six (6) years, the accused shall be denied bail, or his bail already allowed shall be cancelled, if
the prosecution shows the following or other similar circumstances:
(a) That the accused is a recidivist or a quasi-recidivist, a habitual delinquent or has committed the
crime aggravated by the circumstance of reiteration;
(b) That the accused has previously escaped from legal confinement, evaded sentence, or violated the
conditions of his bail without justification;

7
(c) That the accused committed the offense while under probation, parole or conditional pardon;
(d) That the circumstances of his case indicate the probability of flight if released on bail; or
(e) That there is undue risk that he may commit another crime during the pendency of the appeal

Duties of the trial judge in a petition for bail in offenses punishable by reclusion perpetua, life
imprisonment or death
(a) Notify the prosecutor of the hearing of the application for bail or require him to submit his
recommendation;
(b) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to
present evidence to show that the guilt of the accused is strong for the purpose of enabling the court
to exercise its sound discretion;
(c) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of
the prosecution;
(d) If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond.
Otherwise, petition should be denied

Forfeiture of bail
1. One of the conditions of the bail is for the accused to appear before the proper court whenever
required . When his presence is required, his bondsmen shall be notified to produce him before the
court on a given date and time
2. If he fails to appear in person as required by the court or by the Rules, his bail shall be declared
forfeited. The bondsmen shall be given thirty (30) days within which to produce their principal and to
show cause why no judgment should be rendered against them for the amount of the bail.

The bondsmen must, within the period:


(a) produce the body of their principal or give the reasons for his non-production; and
(b) explain why the accused did not appear before the court when first required to do so.

Failing in these two requirements, a judgment shall be rendered against the bondsmen, jointly and
severally, for the amount of the bail (Sec. 21, Rule 114, Rules of Court).
If the bondsmen move for the mitigation of their liability, the court is required not to reduce or
otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is
acquitted (Sec. 21, Rule 114, Rules of Court).

3. Judgment against the bondsmen cannot be entered unless such judgment is preceded by an order of
forfeiture and an opportunity given to the bondsmen to produce the accused or to adduce satisfactory
reason for their inability to do so. An order of forfeiture merely requires the bondsmen "to show cause
why judgment should not be rendered against them for the amount of the bond." The order is different
from the judgment on the bond which is issued if the accused was not produced within the 30-day
period

Cancellation of the bail; remedy


1. Cancellation by application of the bondsmen —
Bail may be cancelled by application of the bondsmen with due notice to the prosecutor (a) upon

8
surrender of the accused, or
(b) proof of his death.

2. Automatic cancellation —
The bail may also be deemed automatically cancelled upon
(a) acquittal of the accused,
(b) dismissal of the case, or
(c) execution of the judgment of conviction

3. Sec. 5 of Rule 114 allows the cancellation of bail where the penalty imposed by the trial court is
imprisonment exceeding six (6) years if any of the grounds in the said section is present as when the
circumstances indicate the probability
of flight. The same section authorizes the appellate court to motu proprio or on motion of any party
review the resolution of the Regional Trial Court after notice to the adverse party in either case.

*the appropriate remedy against the trial court's order canceling the bail is by filing with the Court of
Appeals a motion to review the said order in the same regular appeal proceedings which the appellant
himself initiated,

Duty of the court before arraignment


1. Before arraignment, the court shall
(a) inform the accused of his right to counsel;
(b) ask him if he desires to have one; and
(c) must assign a counsel de officio to defend him unless the accused
(i) is allowed to defend himself in person; or
(ii) has employed a counsel of his choice

Options of the accused before arraignment and plea


(a) Bill of particulars — The accused may, before arraignment, move for a bill of particulars to enable
him to properly plead and prepare for trial. The motion shall (a) specify the alleged defects of the
complaint or information, and shall (b) specify the details desired .
(b) Suspension of arraignment — Upon motion, the proper party may ask for the suspension of the
arraignment in the following cases:
(i) The accused appears to be suffering from an unsound mental condition which effectively renders
him unable to fully understand the charge against him and to plead intelligently thereto. In such case,
the court shall order his mental examination and, if necessary, his confinement for such purpose;
(ii) Aside from suspension of the arraignment, the trial court is mandated to order the confinement of
an accused who is mentally unsound at the time of the trial in one of the hospitals or asylums
established for persons thus afflicted
(iii) There exists a prejudicial question; and
(iv) There is a petition for review of the resolution of the prosecutor which is pending at either the
Department of Justice, or of the Office of the President. The period of suspension shall not exceed sixty
(60) days counted from the filing of the petition with the reviewing office

9
Jurisprudence is clear that with the arraignment of the accused, the DOJ Secretary can no longer
entertain the appeal or petition for review because petitioner had already waived or abandoned the
same
(c) Motion to quash —
(d) Challenge the validity of arrest or legality of the warrant issued or assail the regularity or question
the absence of a preliminary investigation of the charge

When arraignment is to be made


Under the Rules of Court, the arraignment shall be held within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused, unless a shorter period is provided by a special law
or a Supreme Court Circular

In computing the period, the following shall be excluded:


(a) the time of the pendency of a motion to quash;
(b) the time for the pendency of a bill of particulars; or
(c) other causes justifying suspension of the arraignment

Presence of the offended party


The private offended party shall be required to appear at the arraignment for the following purposes:
(a) plea bargaining,
(b) determination of civil liability, and
(c) other matters requiring his presence

When a plea of 'not guilty' shall be entered


Aside from an actual plea of not guilty, a plea of not guilty shall be entered for the accused if
(a) he refuses to plead;
(b) he makes a conditional plea
(c) when he pleads guilty but presents exculpatory evidence in which case the guilty plea shall be
withdrawn and a plea of not guilty shall be entered

Requisites for a plea of guilty to a lesser offense

(a) The lesser offense is necessarily included in the offense charged; and
(b) The plea must be with the consent of both the offended party and the prosecutor. The consent of
the offended party will not be required if said party, despite due notice, fails to appear during the
arraignment

Plea of guilty to a capital offense


When the accused pleads guilty to a capital offense, it is not proper for the court to immediately render
judgment on the basis of the guilty plea. Instead, the court is mandated to perform the following acts:
(a) To conduct a searching inquiry to ascertain
(i) the voluntariness of the plea, and
(ii) to ascertain whether or not the accused has full comprehension of the consequences of his plea;
(b) To require the prosecution to prove the following:

10
(i) the guilt of the accused, and
(ii) the precise degree of his culpability; and
(c) To ask the accused if he wishes to present evidence and allow the accused to present evidence in his
behalf when he so desires

Guidelines in making searching inquiry:


(a) Ascertain from the accused himself
(1) how he was brought into the custody of the law;
(2) whether he had the assistance of a competent counsel during the custodial and preliminary
investigations; and
(3) under what conditions he was detained and interrogated during the investigations.
(b) Ask the defense counsel a series of questions as to whether he had conferred with, and completely
explained to, the accused the meaning and consequences of a plea of guilty.
(c) Elicit information about the personality profile of the accused, such as his age, socio-economic
status, and educational background, which may serve as a trustworthy index of his capacity to give a
free and informed plea of guilty.
(d) Inform the accused the exact length of imprisonment or nature of the penalty under the law and
the certainty that he will serve such sentence.
(e) Inquire if the accused knows the crime with which he is charged and fully explain to him the
elements of the crime which is the basis of his indictment.
(f) All questions posed to the accused should be in a language known and understood by the latter.
(g) The trial judge must satisfy himself that the accused, in pleading guilty, is truly guilty.

Grounds not waived


-although the rule is that those grounds not asserted in MTQ are waived, the following objections are
not waived:
1. Facts charged do not constitute an offense
2. The court trying the case has no jurisdiction over the offense charged
3. Criminal action or liability has been extinguished
4. Double jeopardy

Form and contents of the motion to quash


The rule does not permit an oral motion to quash. The motion shall be in writing. The motion must
then comply with the following requisites:
(a) The motion shall be in writing;
(b) The motion shall be signed by the accused or his counsel;
(c) The motion shall distinctly specify the factual and legal grounds of the motion

Grounds for Motion to Quash


(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the subject matter;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;

11
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses is
prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification;
(i) That the accused has been previously convicted or acquitted of the offense charged, or the case
against him was dismissed or otherwise terminated without his express consent

Order sustaining a motion to quash is not a bar to another prosecution; exceptions


When a motion to quash is sustained, the court may order that another complaint or information be
filed unless the ground relied upon is either
(a) extinction of the criminal liability, or
(b) on the ground of double jeopardy

Double jeopardy requisites


(1) valid indictment;
(2) before a competent court of jurisdiction
(3) Arraignment of the accused;
(4) valid plea entered by him
(5) acquittal or conviction of the accused or the dismissal or termination of the case against him
without his express consent

Complaint or information is sufficient if it states:


1. he name of the accused;
2. the designation of the offense given by statute;
3. the acts or omissions complained of as constituting the offense;
4. the name of the offended party;
5. the approximate date of the commission of the offense; and
6. the place where the offense was committed.

First case had been validly terminated in any of the following ways:
(a) conviction,
(b) acquittal, or
(c) dismissal or termination without the express consent of the accused

Double jeopardy will apply even if the dismissal is made with the express consent of the accused, or
upon his own motion, only if it is predicated on either of two grounds:
1. insufficiency of the evidence
2. denial of the right to a speedy trial.

*In both cases, the dismissal will have the effect of an acquittal.

The finality-of-acquittal doctrine has several avowed purposes.


1. prevents the State from using its criminal processes as an instrument of harassment to wear out the

12
accused by a multitude of cases with accumulated trials.
2. precludes the State, following an acquittal, from successively retrying the defendant in the hope of
securing a conviction.
3. prevents the State, following conviction, from retrying the defendant again in the hope of securing a
greater penalty

When double jeopardy shall not apply despite a prior conviction


(a) the graver offense developed due to supervening facts arising from the same act or omission
constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a plea was
entered in the former complaint or information;
(c) the plea of guilty to a lesser offense was made without the consent of the prosecutor and of the
offended party

Provisional dismissal requisites

Sec. 8 of Rule 117 has two parts divided into two paragraphs, thus:

First paragraph: "A case shall not be provisionally dismissed except with the express consent of the
accused and with notice to the offended party."

Second paragraph: "The provisional dismissal of offenses punishable by imprisonment not exceeding six
(6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the
order without the case having been revived. With respect to offenses punishable by imprisonment of
more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance
of the order without the case having been revived."

For a case to be provisionally dismissed, that is, for the case to be considered as having been
provisionally dismissed, the following requisites mentioned in the first paragraph should concur:
(a) There must be express consent of the accused;
(b) There must be notice to the offended party.

Time bar rule; when provisional dismissal becomes permanent


1. the case is not revived within one (1) year after the issuance of the order of provisional dismissal
with respect to offenses punishable by imprisonment not exceeding six (6) years or a fine of any
amount or both; or
2. the case is not revived within two (2) years after the issuance of the order of provisional dismissal
with respect to offenses punishable by imprisonment of more than six (6) years

If the withdrawal is sought when the case is already on appeal and the record has already been
forwarded, the Regional Trial Court may allow the appellant to withdraw his appeal provided
(a) amotion to withdraw is filed,
(b)motion is filed before the Regional Trial Court, renders judgment on the appeal.

13
When preliminary attachment is available
- Preliminary attachment is available in a criminal case when the civil action is properly instituted in the
criminal action as provided in Rule 111 of the Rules of Court and in the following cases:
(a) When the accused is about to abscond from the Philippines;
(b) When the criminal action is based on a claim for money or property embezzled or fraudulently
misapplied or converted to the use of the accused who is a public officer, officer of a corporation,
attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person
in a fiduciary capacity, or for a willful violation of duty;
(c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and
(d) When the accused resides outside the Philippines

Rights of the accused at the trial.


It provides that in all criminal prosecutions, the accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b) To be informed of the nature and cause of accusation against him.
(c) To be present and defend in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment.
(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by
direct examination.
(e) To be exempt from being compelled to be a witness against himself.
(f) To confront and cross-examine the witnesses against him at the trial.
(g) To have compulsory process issued to secure the attendance of witnesses and production of other
evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed by law.

Right to be informed of the nature and cause of accusation


- In order to inform the accused of the nature and cause of accusation against him, it is necessary for
the complaint or information to contain :
(a) To state the name and surname of the accused or any appellation or nickname by which he has
been or is known and if his name cannot be ascertained, to describe him under a fictitious name
(b) To state the name and surname of the offended party or any appellation or nickname by which such
person has been or is known and if there is no other way of identifying him, to describe him under a
fictitious name ; if the offended party is a juridical person, it is sufficient to state its name, or any name
or designation by which it is known or by which it may be identified
(c) the acts or omissions constituting the offense to enable the accused to know the offense he is being
charged with ;
(d) the qualifying and aggravating circumstances attending the acts imputed to the accused
(e) To sufficiently allege that the crime was committed or its essential ingredients occurred at some
place within the jurisdiction of the court
(f) To allege the date of the commission of the acts or omissions constituting the offense, which date
may be one as near as possible to the actual date of the commission of the offense, except when the

14
precise date is a material ingredient of the offense
(g) In offenses against property, if the name of the offended party is unknown, the property must be
described with such particularity to properly identify the offense charged

Guidelines to determine violation of the right to speedy disposition of cases;


(1) the length of the delay;
(2) the reasons for such delay;
(3) the assertion or failure to assert such right by the accused; and
(4) the prejudice caused by the delay

Approaches to speedy trial


(a) The "fixed-time period" which holds the view that the Constitution requires a criminal defendant to
be offered a trial within a specified time period.
(b) The "demand-waiver rule" which provides that a defendant waives any consideration of his right to
speedy trial for any period prior to which he has not demanded trial. Under this rigid approach, a prior
demand is a necessary condition to the consideration of the speedy trial right

Interests of defendants which the speedy trial right was designed to protect
(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defense will be impaired.

Forms of government grant immunity


(a) Transactional immunity also known as "blanket" or "total" immunity completely protects the
witness from future prosecution for crimes related to his or her testimony;
(b) "Use and derivative use" immunity prevents the prosecution only from using the witness's own
testimony or any evidence derived from the testimony against the witness.

Application for a search warrant; where to file


1. As a rule, an application for a search warrant shall be filed before any court within whose territorial
jurisdiction a crime was committed
2. There are exceptions to the above general rule. These are:
(a) The application may be made before any court within the judicial region where the crime was
committed if the place of the commission of the crime is known
(b) The application may also be filed before any court within the judicial region where the warrant shall
be enforced
Note: In both exceptions, filing in such courts requires compelling reasons stated in the application.
(c) The application shall be made only in the court where the criminal action is pending, if the criminal
action has already been filed

Property subject of a search warrant


(a) Personal property subject of the offense;
(b) Personal property stolen or embezzled and other proceeds, or fruits of the offense; or

15
(c) Personal property used or intended to be used as a means of committing an offense

Requisites for issuing Search warrant.


1. must be issued upon probable cause;
2. probable cause must be determined by the issuing judge personally;
3. the determination by the judge must be made only after an examination under oath or affirmation of
the complainant and the witnesses he may produce
4. the warrant issued must particularly describe the place to be searched and the persons or things to
be seized

How the examination shall be conducted by the judge


(a) The examination must be personally conducted by the judge;
(b) The examination must be in the form of searching questions and answers;
(c) The complainant and the witnesses shall be examined on those facts personally known to them;
(d) The statements must be in writing and under oath; and
(e) The sworn statements of the complainant and the witnesses, together with the affidavits submitted,
shall be attached to the record

Rule if the officer is refused admittance;


The officer may break open any outer or inner door or window of a house or any part of a house or
anything therein provided the following requisites are complied with:
(a) The officer gives notice of his purpose and authority;
(b) He is refused admittance to the place of directed search despite the notice; and
(c) The purpose of breaking is to execute the warrant or to liberate himself or any person lawfully
aiding him when unlawfully detained therein

Duties of the officer after the search and seizure; delivery and inventory
(a) The officer must forthwith deliver the property seized to the judge who issued the warrant;
(b) The officer must, together with the delivery of the property also deliver a true inventory of the
property seized. Such inventory must be duly verified under oath
(c) Note: A violation of the above rules shall constitute contempt of court

Duty of the judge; return and other proceedings


(a) The judge who issued the warrant shall ascertain if the return has been made. He shall do so ten
(10) days after issuance of the search warrant.
(b) If no return has been made, the judge shall summon the person to whom the warrant was issued
and require him to explain why no return was made.
(c) If the return has been made, the judge shall ascertain whether Sec. 11 of Rule 126 (giving of a
receipt for the property seized) was complied with and shall require that the property seized be
delivered to him. The judge shall also see to it that delivery of the property seized and true inventory
has been complied with.

Exceptions to the search warrant requirement

16
1. Warrantless search incidental to a lawful ar
rest;
2. Seizure of evidence in "plain view."
3. Search of a moving vehicle
4. Consented warrantless search;
5. Customs search;
6. Stop and frisk or Terry searches
7. Exigent and emergency circumstances
8. Search of vessels and aircraft; [and]
9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building
regulations.

The elements of the plain view exception are:


a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present
in the pursuit of their official duties;
b) the evidence was inadvertently discovered by the police who have the right to be where they are;
c) the evidence must be immediately apparent; and
d) "plain view" justified mere seizure of evidence without further search;

Parameters of a search incident to a lawful arrest; immediate possession and control rule
- allowable scope of a search incident to a lawful arrest. The provision limits the search to the
following:
(a) For dangerous weapons;
(b) For anything which may have been used in the commission of an offense; or
(c) For anything which constitute proof in the commission of an offense.

Plain view doctrine


-under the plain view doctrine, objects falling in the "plain view" of an officer who has a right to be in
the position to have that view are subject to seizure and may be presented as evidence
Requisites:
(a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in
a position from which he can view a particular area;
(b) the discovery of the evidence in plain view is inadvertent; and
(c) it is immediately apparent to the officer that the item he observes may be evidence of a crime,
contraband or otherwise subject to seizure.

In case of consented searches or waiver of the constitutional guarantee against obstrusive searches,
it is fundamental that to constitute a waiver, it must first appear that:
(1) the right exists;
(2) the person involved had knowledge, either actual or constructive, of the existence of such right; and
(3) the said person had an actual intention to relinquish the right

17
When a warrantless arrest is lawful
a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense (in flagrante exception);
b) When an offense has just been committed, and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it (hot pursuit
exception); and
c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or is temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another (escapee exception)

Other grounds for lawful warrantless arrest

1. when a person previously lawfully arrested escapes or is rescued. Under the Rules, any person may
immediately pursue or retake him without a warrant at any time and in any place within the Philippines
2. an accused released on bail may be re-arrested without a warrant if he attempts to depart from the
Philippines without permission of the court where the case is pending

The basis of the in flagrante delicto exception; requisites

(a) the person to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and
(b) such overt act is done in the presence or within the view of the arresting officer

The hot pursuit exception

necessitates two stringent requirements before a warrantless arrest can be effected:


(1) an offense has just been committed; and
(2) the person making the arrest has personal knowledge of facts indicating that the person to be
arrested has committed it

*Under this exception a warrantless arrest made, one year after the offense was allegedly committed is
an illegal arrest.

Rights of a person arrested


(a) The right to be assisted by counsel at all times
(b) The right to remain silent
(c) The right to be informed of the above rights
(d) The right to be visited by the immediate members of his family, by his counsel, or by any non-
governmental organization, national or international

Persons not subject to arrest


1. Sec. 11, Article VI of the 1987 Constitution provides:

18
"A senator or member of the House of representatives shall, in all offenses punishable by not more
than six years imprisonment, be privileged from arrest while the congress is in session * * *."
The privilege of a senator or a congressman will not apply when the offense is (1) punishable by
imprisonment of more than six (6) years even if Congress is in session . Also, if the offense is not
punishable by imprisonment of not more than six (6) years, the privilege does not also apply if
Congress is not in session.
2. Under generally accepted principles of international law, sovereigns and other chiefs of state,
ambassadors, ministers plenipotentiary, ministers resident, and charge d'affaires are immune from the
criminal jurisdiction of the country of their assignment and are therefore immune from arrest
3. R.A. 75 prohibits the arrest of duly accredited ambassadors, public ministers of a foreign country,
their duly registered domestics, subject to the principle of reciprocity

Procedure for cases not requiring a preliminary investigation


Where a preliminary investigation is not required because the penalty prescribed by law for the offense
involved an imprisonment of less than four (4) years, two (2) months and one (1) day, there are two
ways of initiating a criminal action.

(a) First, by filing the complaint directly with the prosecutor; or


(b) Second, by filing the complaint or information with the Municipal Court

When preliminary investigation is not required even if the offense requires a preliminary
investigation
1. If a person is arrested lawfully without a warrant involving an offense which requires a preliminary
investigation, i.e., the penalty is at least four (4) years, two (2) months and one (1) day, an information
or complaint may be filed against him without need for a preliminary investigation . Inquest
proceedings are proper only when the accused has been lawfully arrested without a warrant .
Thus, if a person is arrested by a police officer in flagrante delicto while robbing the victim through
violence or intimidation, the arrest is a lawful one and a preliminary investigation is not required even if
the penalty for robbery is more than four (4) years, two (2) months, and one (1) day. Under Article
294(5) of the Revised Penal Code, the minimum penalty for robbery is prision correctional in its
maximum period which is six (6) years under Article 27 of the same code. The offense is one which
involves a penalty higher than four (4) years, two (2) months, and one (1) day and the arrested person
would normally be entitled to a preliminary investigation. In this case however, a preliminary
investigation does not apply because he was validly arrested.

2. If he has been arrested in a place where an inquest prosecutor is available, an inquest will be
conducted instead of a preliminary investigation. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed directly with the proper court by the offended party or a peace
officer on the basis of the affidavit of the offended party or arresting officer or person

Who may conduct preliminary investigation and determine existence of probable cause
(a) Provincial or City Prosecutors and their assistants;
(b) National and Regional State Prosecutors; and

19
(c) Other officers as maybe authorized by law

When warrant of arrest is not necessary

(a) When a complaint or information has already been filed pursuant to a lawful warrantless arrest or if
the accused is already under detention and was lawfully arrested without a warrant and a complaint or
information has been filed ; also when a warrant has already been issued by the MTC judge & accused
already detained
(b) When the accused is charged for an offense punishable only by fine; or
(c) When the case is subject to the Rules on Summary Procedure.

Civil action is deemed instituted along with the criminal action unless the offended party:
(a) waives the civil action,
(b) reserves the right to institute it separately, or
(c) institutes the civil action prior to the criminal action, is not applicable

instances when no actual damage results from an offense


1. Espionage
2. violation of neutrality,
3. flight to an enemy country
4. crime against popular representation

In case of acquittal, the accused may still be adjudged civilly liable.


The extinction of the penal action does not carry with it the extinction of the civil action where
(a) the acquittal is based on reasonable doubt as only preponderance of evidence is required;
(b) the court declares that the liability of the accused is only civil; and
(c) the civil liability of the accused does not arise from or is not based upon the crime of which the
accused was acquitted. The civil liability is not extinguished by acquittal where such acquittal is based
on lack of proof beyond reasonable doubt, since only preponderance of evidence is required in civil
cases

2 kinds of acquittal

1. Acquittal on ground that accused is not the author of the act or omission complained of - no civil liab
2. Acquittal based on reasonable doubt on guilt of accused
- not exempt from civil liab because such liab may be proved by mere preponderance of evidence

Subsidiary liability of employer


(1) they are indeed the employers of the convicted employees;
(2) they are engaged in some kind of industry;
(3) the crime was committed by the employees in the discharge of their duties; and
(4) the execution against the latter has not been satisfied due to insolvency.

20
Elements of a prejudicial question
(a) the previously instituted civil action involves an issue similar or intimately related to the issue raised
in the subsequent criminal action, and
(b) the resolution of such issue determines whether or not the criminal action may proceed.

How criminal actions are instituted


1. The institution of a criminal action generally depends upon whether or not the offense is one which
requires a preliminary investigation
Where a preliminary investigation is required, a criminal action is instituted by filing the complaint with
the proper officer for the purpose of conducting the requisite preliminary investigation
2. Where a preliminary investigation is not required, a criminal action is instituted in either of two
ways:
(a) by filing the complaint or information directly with the Municipal Trial Court or Municipal Circuit
Trial Court; or
(b) by filing the complaint with the office of the prosecutor

public prosecutor, in the exercise of his functions, has the power and discretion to:
(a) determine whether a prima facie case exists,
(b) decide which of the conflicting testimonies should be believed free from the interference or control
of the offended party, and
(c) subject only to the right against self-incrimination, determine which witnesses to present in court

Prosecution of a criminal action in the Municipal Trial Court or Municipal Circuit Trial Court
A criminal action in a Municipal Trial Court or in a Municipal Circuit Trial Court shall also be prosecuted
under the direction and control of the prosecutor

However, when the prosecutor assigned is not available, the action may be prosecuted by
(a) the offended party,
(b) any peace officer,
(c) or public officer charged with the enforcement of the law violated

When a private prosecutor may prosecute a case even in the absence of the public prosecutor
A private prosecutor may prosecute the criminal action up to the end of the trial even in the absence of
the public prosecutor if he is authorized to do so in writing. This written authorization shall be given by
either the Chief of the Prosecution Office or the Regional State Prosecutor. The written authorization in
order to be given effect must however, be approved by the court

The written authorization to the private prosecutor shall be given because of either of the following
reasons:
(a) the public prosecutor has a heavy work load or,
(b) there is a lack of public prosecutors

When leave of court is required even if the amendment is made before plea
(a) the amendment downgrades the nature of the offense charged, or

21
(b) the amendment excludes any accused from the complaint or information

Rule as to amendment made after the plea of the accused

-If the amendment is made after the plea of the accused and during the trial, any formal amendment
may only be made under two conditions, namely:
(a) leave of court must be secured; and
(b) the amendment does not cause prejudice to the rights of the accused

Designation of the offense


1. The complaint or information shall state the designation of the offense given by the statute
2. aver the acts or omissions constituting the offense
3. and specify its qualifying and aggravating circumstances

22