Pre-trial, Trial, Judgment

Q: What is the purpose of pre-trial?

A: Pre-trial is a very important proceeding and stage in trial because it:
1. Set up order of trial
2. Stipulation of facts
3. Marking of evidence
4. Agreement or conceiling the statements of the witnesses
5. Waive or presentation of witnesses
6. Amicable settle to the civil aspect of the case
Q: Which comes first Pretrial or arraignment?
A: Arraignment first then pre trial

Q: When do you conduct plea bargaining? In arraignment or pre trial?

A: Intially, you can conduct plea bargaining in arraignment because that is you plead whether
guilty or not or plead for a lesser offense. But at the same time plea bargaining is not
disallowed after arraignment that’s why even in pre-trial, plea bargaining is allowed in order to
expedient the proceeding.
Plea bargain is not limited to arraignment. It can be conducted during pre-trial, trial, after
presentation of evidence before promulgation of judgment.

Q: Why is pre-trial important?

A: You mark the evidence to be presented during trial. That’s the purpose of pre-trial in order
to conduct an orderly proceedings during trial.

Q: Can there be amicable settlement during pre-trial over the criminal aspect of the case?
A: No, you can only amicable settle the civil aspect of the case but the criminal aspect cannot
be amicably settled during pre-trial.
Why? Because under Rules of Evidence, attempts to amicably settle a criminal case is an
evidence used against the accused. An offer of compromise by the accused may be received in
evidence as an implied admission of guilt. That’s why it is not anymore allowed during pre-trial
stage.
Q: Can there be amicable settlement in the BP 22 case?
A: YES with respect to the civil aspect of the case.

Q: What is the subject matter of BP 22 case?

A: Check

Q: What is the civil aspect of BP 22 case?

A: The indebtedness of the accused.

Q: What is the penalty in BP 22 cases?

A: Filing the amount of the check

Q: Will you continue the criminal aspect even if the subject matter (amount of the check) is
already paid during pre-trial?
A: No, because it would be useless because the subject matter of the case has already been
paid.

Q: Supposed you pay the civil aspect of BP 22 during pre-trial and there is still a criminal
proceeding, but the criminal case cannot proceed because the subject matter is already paid.
What will happen?
A: There shall be provisional dismissal of the case because the subject matter of the check is
already paid. When will the prosecutor revive the case? If the accused fails to comply with the
obligations provided in the civil aspects of the case.
Usually proceedings in trial courts with respect to BP 22 cases: Payment of the amount of the
check – Provisional dismissal of the criminal aspect of the case unless the accused fails to
comply with the obligations in the civil aspect of the case.

Q: When is pre-trial conducted? What if the accused is detained? When shall be the pre-trial be
conducted?
A: The Court shall hold the pre-trial within 30 days after arraignment or within 10 days if the
accused is under preventive detention.

Q: Effect of the non-appearance of the parties in a criminal proceeding?

A: No consequence of dismissal because criminal cases are imbued with public interest.
Therefore non-appearance of parties is not fatal except the court will impose administrative
sanctions.

Q: Why is it that the prosecution is not required to attend the pre-trial?

A: Because the prosecutor’s client is the People of the Philippines and therefore cannot possibly
be present at the pre-trial.

Q: Why is it that the accused not required to attend the pre-trial?

A: Because when the accused is arraigned, that is the moment you apply the trial in absentia. It
means that the presence of the accused is not anymore required after the arraignment except
for certain instances. That is the reason why the presence of the accused in pre-trial is not
mandatory.

Q: What is the effect of the non-appearance of the parties during pre-trial in civil procedure?
A: Plaintiff’s absence – Case will be dismissed with prejudice.
Defendant’s absence – Plaintiff will be allowed to present evidence ex parte. The presentation
of evidence in ex parte he is allowed to present evidence to prove the specific evidence during
trial not merely those confined in the complaint.

Q: What is the duty of the Clerk of court during Pre-trial?

A: COC 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. Ascertainment from the parties undisputed facts and admissions on the genuineness
and due execution of documents marked as exhibits.
D. Consider such other matters as may aid in the prompt disposition of the case.
Q: Does the COC exercised discretion on what the stipulation of the facts will be applicable by
the parties. Or is COC mere silent observer during the pre-trial? NO
A: The COC is merely there to manage the stipulation of facts. But the judge is given discretion
to determine the stipulation of facts. However, in actual practice, during pre-trial, is a mere
observer and it is only the parties that mark evidence and stipulate facts which depicts the
purpose of pre-trial which is to expedite the proceedings. That is why, in the Revised Rules of
Civil Procedure, pre-trial is a pro-active system approach, wherein the judge actively
participates during the pre-trial and render judgment if there is merely an undisputed fact.

Q: What is pre-trial agreement?

A: All the agreements and admissions made or entered during the pre-trial which shall be
reduced in writing and signed by the accused and counsel.

Q: Effect if the accused refused to sign the pre-trial agreement?

A: Such admissions then cannot be used against the accused.

Q: What is a pre-trial order?

A: Setting forth the actions taken during the pre-trial, the facts stipulated, the admissions
made, the evidence marked, the number of witnesses to be presented and the schedule of the
trial.

Q: There is no pre-trial agreement where there is pre-trial order? False.

A: Because the purpose of pre-trial order is to state within the parties what has been done
during the pre-trial whether there is an agreement or not, stipulation of facts or not, marking of
evidence or not and it also states the order of trial depending on the defenses of the accused.
2 types of Alternative dispute resolution:
1. Court Annexed Mediation
2. Judicial Dispute Resolution
Q: What is a Court Annexed Mediation?
A: It a procedure wherein before litigation, the parties will undergo mediation or conciliation in
order to reach a settlement and it is an alternative mode to decongest the cases in the courts.
Q: Which comes first? Pre-trial or CAM?
Before: Mediation then pre-trial because according to Philippine Judicial Academy there is
much more hope in the mediation if the parties do no throw their negative allegations against
each other.
A: PRESENT RULE: Pre-trial then mediation. Because pleading shall now be evidentiary in
nature. Therefore it is immaterial whether you conduct pre-trial because at the moment you
file pleading you already know the undisputed facts of each parties. That’s why mediation now
comes after the pre-trial.
Mediation is important because strict rules in evidence is not applicable. There is still a window
of opportunity to mediate a mediatable conflict.

Q: When can you conduct a mediation in a criminal case?

A: Four grounds:
1. Civil aspect of BP 22
2. Civil aspect of quasi-offenses
3. Civil aspect of theft
4. Civil aspect of estafa and libel
5. Civil aspect of less grave felonies

Q: Duration of mediation?
A: 30days subject to another extension of 30 days. Mediation has remarkable success rate of
64%. 

Q: What is Judicial Dispute Resolution?

Q: Who will be the one to conduct a mediation?
A: The judge to whom the case has been originally raffled. The problem is when you file an
information then it will be subject to arraignment then the case will be transferred to another
JDR judge and the JDR judge will mediation and if unsuccessful, it will then be transferred to
another judge. When you transfer case, there is always something in return.
Transfer of cases is one of the reason why the JDR is not effective.
Under the Revised Rules in Civil Procedure, JDR is not mandatory it is only applicable when the
judge sees a genuine reason to amicably settle conflicts.
Under the CURRENT RULE the stages would be Pre-trial- Court-annexed mediation- JDR

Q: What is a judicial affidavit?

A: These are direct testimonies of the witnesses or party when they appear to the court. They
are signed and notarized on behalf of the witness or party.

Q: Distinction between the sworn affidavit and judicial affidavit?

A: Judicial affidavit sworn statement that takes place as the direct testimonies of the witnesses
or party while sworn affidavit is just sworn statement of a particular person.
Judicial affidavit although it is a document, it is a testimonial evidence and not documentary
evidence. The reason to distinguish it because later on you will need to offer that kind of
evidence and if it is a judicial affidavit and constitute as a testimonial evidence then you need to
present it immediately when you present a witness because documentary evidence is
presented at the end of the trial.
Q: When do we apply the judicial affidavit rule in criminal cases?
A: ONLY in the following instances:
a. Maximum imposable penalty does not exceed 6 years
b. Accused agreed to the used of judicial affidavit rule
c. With respect to the civil aspect of the case, judicial affidavit will always be use.
d.
Q: When is a party required to submit a judicial affidavit?
A: Not later than 5 days before pre-trial.

Q: When shall trial commence?

A: The trial shall commence 30 days from receipt of pre-trial order.

Q: Effect of failure to hear the accused or its delay?

A: Violation of his right to speedy trial and would be a ground for the dismissal of the case.
Q: What are the factors which the court must consider to determine whether to grant the
motion for speedy disposition of cases or not?
A:
1. Length of delay
2. Reason for delay
3. Assertion or not assertion of the right of speedy trial
4. Prejudiced caused by the delay to the accused

Q: Duration of the entire trial in a criminal case?

A: It shall not exceed 180days from the first day if trial except as otherwise authorized by the
SUPREME COURT.
NOTE: It is the Supreme Court which will decided whether there is a valid ground for trial to be
suspended and to extend it.

Q: What is the difference between postponement and continuance?

Both of them is for delaying of proceedings.
A: Continuance is conducted during presentation of evidence. That is the reason why there is
continuance, you file a continuance so that you will continue to present evidence. So
continuance is particularly available in the trial proper. On the other hand, postponement is a
general term to stop or reschedule a trial. So if you want to delay a proceeding in a pre-trial,
arraignment or motion to quash, you file a motion for postponement.

Q: What are the prohibited grounds for continuance?

Answer:
a. Congestion of the court’s calendar
b. Lack of diligent preparation
c. Failure to obtain available witnesses on the part of the prosecutor

“Failure to obtain available witnesses on the part of the prosecutor” – pertains only to other
witnesses not the material witnesses because in case of failure to obtain material witnesses,
the court has the discretion to continue the hearing or reschedule it for another day.
Q: Under the guidelines for continuous trial, there is such thing we call “no postponement
rule”. Under such rule, postponements of hearings are not anymore allowed in criminal cases
subject to exceptions. What are the exceptional circumstances where postponement may be
allowed in continuous trial?
Answer:

1. Any period of delay resulting from other proceedings concerning the accused
2. Any period of delay resulting from the absence or unavailability of an essential witness.
3. Any period of delay resulting from the mental incompetence or physical inability of the
accused to stand trial.
4. If the information is dismissed upon motion of the prosecution and thereafter a charge
is filed against the accused for the same offense, any period of delay from the date the
charge was dismissed to the date the time limitation would commence to run as to the
subsequent charge had there been no previous charge.
5. (e) A reasonable period of delay 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.
6. (f) Any period of delay resulting from a continuance granted by any court motu proprio,
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.
7. Acts of God and fortuitous event, such sickness of counsel.

Q: Suppose you file a motion for postponement or continuance of the trial, will you pay a fine?
A: Under continuous trial rule, there is always a fine if you move for postponement of the trial
whether meritorious or not in order to discourage postponement even if meritorious in nature.

Q: Suppose the material witness appear in the court, however, because the length of the
testimony he was not able to finish presenting his testimonies. What is the remedy of the
counsel in order to secure the attendance of the material witness for the next hearing of the
case?
A: The court may require the material witness to post bail in order to secure attendance.
Effect of failure to post bail is that you will be subjected to arrest.

Q: When is an accused is discharged as a state witness?

A: When the following conditions are present:
1) Two or more accused are jointly charged with the commission of an offense
2) The motion for discharge is filed by the prosecution before it rests its case
3) The prosecution is required to present evidence and the sworn statement of each
proposed state witness at a hearing in support of the discharge
4) The accused give his consent to be a state witness
5) The trial court is satisfied that:
a. There is absolute necessity for the testimony of the accused
b. There is no other direct evidence available except the testimony of the said accused
c. The testimony of said accused can be substantially corroborated in its material
points
d. Accused does not appear to be the most guilty
e. Accused has not at any time been convicted of any offense involving moral
turpitude.

Q: When should a prosecutor may move for the discharge of an accused?

A: When there are 2 or more accused in a criminal case because when there is only one, you
cannot file a motion to discharge.

Hubbert Webb case

One of the accused therein Jessica Alfaro was offered to become a state witness. However, the
prosecution was not able to file the motion to discharge him as a state witness because it lacks
the consent of the accused. Only that one requisite that’s why he was not able to be discharge
as a state witness. And what happened next? Hubbert Webb and his accomplices were
acquitted.

Q: What is the effect is the court grants a motion to discharge the accused?
A: The discharge of an accused shall amount to an acquittal and shall be a bar to another
prosecution for the same offense, except if the accused fails or refuses to testify against his co-
accused in accordance with his sworn statement constituting the basis for his discharge. The
evidence adduced shall form part of the trial.
Q: What is the effect if the court denies the motion to discharge the accused?
A: The proposed state witness shall be prosecuted like his co-accused and his sworn statement
shall be inadmissible in evidence.

People vs Larranaga
The Chiong sisters were kidnapped and murdered.
Whether Lucia a material witness would be considered a state witness?

1st element
Aside from Lucia there were 4 other witnesses in the case. Security guard, vendor of the sari-
sari store, the driver that passed by in the van and the witnesses that saw the cadaver of the
one of the sisters.
Are those four testimonies with respect to the circumstances of the crime not sufficient to
convict the accused of the crime?
Security guard said that they took the Chiong sisters forcefully towards the van. The vendor saw
the accused bought BBQ and liquor in the sari-sari store and they saw the Chiong sisters inside.
A tricycle driver saw the Chiong sisters running away from a van and so the faces of the accused
were running towards then and lastly they saw the body of the one of the sisters.
Are those testimonies merely corroborative?
So the testimony of Lucia is material or necessary.

2nd element
Did Lucia raped the Chiong sisters? Was there an admission on his part that he committed the
crime? What’s is the crime first? Rape with homicide. Did Lucia guilty with homicide? No rape
only.

3rd element
Whether Lucia is previously convicted of a crime involving moral turpitude?
He was convicted of the trial court of Minnesota of a crime of burrrgouaasxxh, robbery that’s
just robbery. He was convicted of a crime involving moral turpitude in the United States.
Is the conviction of an accused of a crime involving moral turpitude in a foreign jurisdiction
applicable in 3rd element? Yes but the court still considered the accused to be a state witness
because the Court MAY have discretion to disregard this element of conviction of an offense
involving moral turpitude.

Q: May a person become a state witness even though an information is not filed against him?
A: Yes, that is very possible under the law RA 6981 or the State witness act. It is a state witness
protection program.

Q: How do you become a state witness under RA 6981?

A: A person who is not yet an accused because no information is filed against him can become a
state witness. The elements are actually the same with discharge of an accuse to be a state
witness, the only difference is that the offense in which his testimony must be use is a grave
felony and there is no yet information filed. Ex. Ben Hurluy

Webb vs De Leon
Q: Who approves whether a person may become a state witness? The court or the Department
of Justice?
A: The Court held that by virtue of RA 6981, the Secretary of Justice and DOJ panel has
discretion who shall be charge or discharge as state witness. Only when there is a grave abuse
of discretion over the discharge of the witness by Sec of Justice can the Court question such
order.

Q: What is the order of trial?

A: The prosecution shall present their evidence first and after which it will be the defense which
will present evidence. Thereafter, the prosecution may present it rebuttal evidence unless the
court allows it to present additional evidence bearing on the main issue and then the defense
may present sur-rebuttal evidence unless the court allows it to present additional evidence.
Lastly, 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 memorandum.
Q: What is reverse order of trial?
A: It is when the order of trial may be modified because the accused admits the crime charged
but interposes a lawful defense.
In this reverse order of trial, the defense will be the one who will present evidence first or its
exculpating evidence. Afterwards, it will be the prosecution that will rebut the evidence
presented by the defense. It usually happens where there is an allegation of justifying
circumstance under the RPC.

Q: What is a trial in absentia?

A: Requsites are he must be:
1. Arraigned
2. Duly notified of the trial or hearings
3. Failure to appear is unjustified
Q: What are the instances when the presence of the accused is mandatory during trial?
a. At arraignment and plea
b. During trial whenever necessary for identification purposes
c. At promulgation of sentence unless it is for a light offense

Q: What is a demurrer to evidence?

A: It is an objection by one of the parties to the effect that the evidence which his adversary
produced is insufficient in point of law to make out a case or sustain the issue and it is filed
after the prosecution has rested its case. It is actually a motion to dismiss.

Q: Demurrer to evidence, is that a motion?

A: Yes, it is a motion to dismiss.

Q: Give me another example of motion to dismiss in a criminal action.

A: Motion to dismiss on the ground of violation of right to speedy trial.

Q: So there are only two grounds of motion to dismissed in a criminal action, namely:
A.Demurrer to evidence and motion of violation of right to speedy trial

Q: When do you file a demurrer to evidence?

A: After the prosecution rested its case.

Q: When does the prosecution rested its case?

When you present your evidence, you present the testimonies, witnesses testimonies. The next
step you file an offer of evidence. The offer of evidence is the list of your documentary
evidence. So the first part is you present your witnesses and the second part is you present
your documentary evidence in a offer of evidence.

So let’s say the prosecution shall now an offer of evidence, does it mean that the prosecution
already rested its case?
Not yet, the court will now order the other party to file his objection to the offer of evidence.
Suppose the other party now files his objection to the offer of evidence, does it mean the
prosecution already rested its case? Not yet.
Suppose the court now renders judgment with the offer of evidence and the objections to the
offer of evidence, is it the moment now where the prosecution rested its case?
A: YES! That is the moment when the prosecution rests its case. From the time the prosecution
files an offer of evidence and defense files its comments or the objections and the court rules
on the validity of the offer in consideration to the comments or objections of the other party.
That is the moment where you will file demurrer to evidence.

Q: Why is the accused allowed to file a demurrer of evidence when the accused rested its case?
Why is it the particular time to file the demurrer to evidence or to question the sufficiency of
the evidence of the prosecution?
A: The reason why the accused is allowed to file a demurrer of evidence at that specific
moment is because the burden of proof in a criminal case rest upon the prosecution. If the
prosecution after presenting all of its evidence cannot prove a prima facie case of proof beyond
reasonable doubt against the accused, then there is no more need for accused to file evidence.
In criminal cases the conviction of the accused rest on the evidence of the prosecution not on
the weakness of the evidence of the accused. That is the reason why at that moment the
accused is allowed to file a demurrer to evidence.
Q: Should the accused file a motion for leave of court before he file a demurrer to evidence?
A: The accused have the option to file a demurrer to evidence with leave of court or without
leave of court.

Q: So when you file a motion for leave of court and then you file a demurrer to evidence and it
was denied, the accused may still present evidence? Yes.
Q: But if you file a demurrer to evidence without filing a leave of court, your presentation will
be denied? You will not be allowed to present evidence? Yes.
Q: Why is that? What is the rational basis of that rule?
When the accused files a demurrer to evidence without leave of court, he waives his right to
present evidence.
Q: Why does he waived his right to present evidence when he did not file a leave of court?
A: The reason is because of the very definition of leave of court. The motion of leave of court is
asking authorization from the court. So if you file a motion for leave of court which is the
authorization from the court to present evidence, only if the court will grant them shall you be
allowed to present a demurrer to evidence. In that manner, you are accepting the authority of
the court whether the judge will deny or not. That’s why when the judge denies it, you will still
be given a chance to present your evidence in the court.
If you file a demurrer without a leave of court, you are by passing the authority of the judge.
Therefore, you are confident that a demurrer will be granted. That’s why when you file it
without leave of court, the consequence of its denial is that you waived your right to present
evidence.
One of the mortal sins in criminal procedure is to file a demurrer to evidence without leave of
court. If you do that, you are very negligent. So never ever file a demurrer to evidence without a
leave of court.

Q: What is the effect if the court grants a demurrer?

A: The case is dismissed. It is basically an acquittal.

Q: Suppose the demurrer to evidence is granted, can the accused invoke his right against
double jeopardy?
A: Yes it can be invoke. The reason why is because it is a judgment on the merits if the case.
Why is that? Because it is a judgment on the sufficiency of the evidence of the prosecution.
That’s why it will constitute a double jeopardy when you grant a demurrer to evidence.

Q: Suppose an order of granting demurrer to evidence was appealed in the court, can you
appeal the order granting the demurrer to evidence?
A: No you cannot appeal. You can only question said order under Rule 65 which is an
independent special civil action.
NOTE: Rule 65 is not an appeal but an independent civil action.

Q: What is the quantum of proof whether to grant a demurrer to evidence or not?

A: It is the establishment of a prima facie case. That is the quantum of proof to determine
whether you will grant a demurrer or not.

Q: Suppose the court denies the demurrer to evidence, can the accused appeal the grant of
demurrer to evidence.
A: No, because it is an interlocutory order.

Q: Can you file a petition for certiorari under Rule 65 in an order denying the demurrer to
evidence? When?
A: Yes. When there is grave abused of discretion.

Applicable case: Gloria Arroyo

She was charged of plunder because of the fertilizer fund scam in 2012. Non-bailable crime
because the crime is plunder. She filed a motion for demurrer to evidence with leave of court to
the Sandiganbayan. Sandiganbayan denied the said demurrer because the prosecutor
established a prima facie case. Thereafter Arroyo filed a special civil action for certiorari under
Rule 65 to the SC. The SC granted the said motion because according to it, there was grave
abused of discretion on the part of Sandiganbayan because her signature of “okay” in the grant
of fertilizer fund scam is not an authority to tag her over the scam.
Q: What is the difference between a motion to quash and a demurrer to evidence? In
substance, what is their main difference?
A: In demurrer to evidence, there must be sufficiency of evidence while in the motion to quash,
the sufficiency of the information.

Q: So you can file a demurrer to evidence when the prosecution rested its case, right? Instead
of demurrer to evidence, can you file a petition for bail? 2014 BAR EXAMINATION
A: Yes. Because when the prosecution rest its case, you can attack the evidence presented by
the prosecution. If you look at demurrer it attacks the sufficiency of evidence presented,
whether there is a prima facie case. In a petition for bail, you also attack the evidence of the
prosecution, whether the evidence of the prosecution for the guilt of the accused is strong.
That’s why you can also file a petition for bail because it involves the same subject matter
which is the evidence of the prosecution. Legal basis? Nothing because it is a creation of Justice
Peralta.

Q: What is the difference between a demurrer to evidence in civil procedure and criminal
procedure?
A: In civpro, the filing of motion for leave of court is not mandatory while in crimpro, it is a
mortal sin not to file a motion for leave of court. While in civpro, whether you file a leave of
court or not you can still file a demurrer to evidence.
The other difference also, in civpro, on appeal if demurrer to evidence is granted in a civil case,
then the person or party who invoked the demurrer to evidence may not be able to present
evidence on appeal.
So again, leave of court is not mandatory in civil procedure and when it is granted and there is
an appeal, there is a waiver on the part of the party to present evidence on appeal.

Q: What are the requisites of a valid judgment?

a. Must be written in the official language
b. Must be personally and directly prepared and signed by the judge
c. Must contain clearly and distinctly a statement of facts and the law upon which it is
based.
Q: Suppose the judgment is type written by the Clerk of Court but signed by the judge, is the
judgment valid? Is the judge required to personally draft the decision? So what is the meaning
of “personally prepared by the judge?”
A: The meaning of the phrase that the judge must personally and directly prepare the writing of
the decision is that the judge must supervise the drafting of the decision. The meaning of
supervision is that it is not mandatory for him to personally draft, type or write the draft itself it
is sufficient that he exercise direct control and supervision over the drafting of the decision and
as long as there is a signature of the judge or justice therein, it is assumed that he has read in
toto and has agreed to it that it will the valid decision of the court he represents.

Q: Suppose there is a judge who retired and a new judge is appointed in that sala. The retired
judge was present during the presentation of the evidence of the case and the new judge was
not because the presentation of evidence is already done. Can the new judge render judgment?
A: Yes. This is another example of direct supervision and control. It is not necessary that the
judge actually present at the actual trial who will be the one to enter judgment. It is sufficient
that he has some legitimate basis for his judgment just like the records of the case.

Q: What are the requisites for the 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. Act or omission from which the civil liability might arise did not exist
Q: What are the requisites of the judgment of conviction?
a. Legal basis for the conviction
b. Aggravating and mitigating circumstances
c. Participation of the accused
d. Penalty
e. Civil liability
Q: What is the variance doctrine?
A: The offense charged is different from the offense proved and offense as charged is either
included in the offense proved or necessarily includes the offense proved.
Q: Suppose there is an information for homicide, during trial it was proven that there was an
aggravating circumstance of treachery. Can the accused be convicted of murder?
No. It is not favorable to the accused because of the variance doctrine.
Q: But there is treachery, so you will just disregard treachery? Is that fair?
What is the basis for variance doctrine? The basis for variance doctrine is the right of the
accused to be inform of the nature and cause of the accusation against him. So if the
information is only for homicide, therefore, you are informed that you will be only convicted
only for the crime of homicide and there cannot be conviction of any higher offense even if it
was proven for trial. That is the reason for variance doctrine and it is actually fair, because
otherwise, the accused will be surprise for an entirely different penalty or increased penalty
that’s not charged in the information. You can only be convicted of what is maximum penalty
provided by the information.

Q: Suppose there is an information for homicide and treachery is proven during trial and the
prosecutor realized that he cannot convict the accused of murder because of the variance
doctrine, can the prosecutor move for the amendment of the information so that the accused
will be convicted of murder?
A: No. It is not allowed because an amendment during trial is only allowed for formal
amendments. And the Amendment increasing the crime charged is substantial and cannot be
allowed during trial.

Q: Suppose there was an information for serious physical injuries and during trial it was
discovered that the victim died because of the serious physical injuries. Can the court convict
the accused of homicide?
A: Yes, because the death of the victim is a supervening event that is not within the possible
determination of the prosecution of the offense. Since it is a supervening event, it is deemed an
intervening cause to amend the information from serious physical injuries to homicide. That’s
why supervening event is an exception to the variance doctrine and also in the rule against
double jeopardy.

Q: Suppose there is an information for murder. The RTC convict the accuse for homicide. On
appeal the CA convicted the accused for murder. Can the accused invoke the variance doctrine
against the CA alleging that since he was convicted of homicide, he cannot be convicted of
murder without violating the right to be inform?
A: No, because the information states murder. The variance doctrine is only applicable with
respect to the information. So if the information states murder, therefore, the CA can render
judgment also for murder even though the RTC convicted the accused initially for homicide. So
you have to look first at the information if you have a problem in the variance doctrine.
Q: Can the CA convict the accused for the higher crime?
A: No CA will only affirm or reverse the decision of RTC.

Q: How does a court promulgate judgment?

A: A judgment is promulgated by reading it in the presence of the accused and any judge of the
court in which it was rendered.

Q: Can the accused ask the court during the promulgation of judgment to read only the
dispositive portion?
A: Yes, the Rules of Court states that the judgment shall be read in open court but in actual
practice the dispositive portion may be allowed to be read only.

Q: If you are the counsel of the accused why would you require the court to read only the
dispositive portion?
A: The reason behind this is to save the accused from the stress of reading the entire decision
because if you read everything from the evidence presented to the reason of conviction it
would be terrible for your client.
Q: Suppose your client is acquitted during promulgation of judgment, as a counsel what is your
next course of action?
A: The proper course of action when there is a promulgation of judgment of acquittal, is to ask
for the release of the bail because bail will be return if your accused is acquitted.

Q: When is the presence of the accused waived during promulgation of judgment?

A: It is when the accused is absent despite notice.

Q: What is a modification of judgment?

A: A judgment may be modified or set aside upon the motion of the accused and before the
judgment becomes final or before appeal is perfected.
Q: Grounds for modification of judgment? Not answered.
Q: Difference between modification of judgment and re-opening of proceedings? Not answered

Q: When does a criminal case becomes a final?

NOTE: When you are asked this question, you will distinguish first whether the judgment is for
acquittal or conviction.
A: In a judgment of acquittal, a judgment becomes final immediately.
A: It is immediately final and executory. Why? Because from the moment of acquittal, the first
jeopardy attaches. That’s why you cannot anymore appeal because you will violate the right
against double jeopardy.
In a judgment of conviction, a judgment becomes final:
1. After the lapse of period for perfecting an appeal
2. When the sentence is totally or partially satisfied or served
3. When there is waiver of right to appeal
4. When the accused applied for probation

Q: Suppose there is a judgment of conviction and the accused appeal the judgment of
conviction, can he still apply for probation?
A: No, because when you file a probation, you are a repentant applicant and therefore you
accept the wrong doing you have done that’s why you apply for probation. If you fine an
appeal, then you are not a repentant or you do not accept the since you have committed.
That’s why you cannot apply for probation.
However, there are new rules on probation. In Dimakuta vs People GR no 206513 J. Peralta.
When there is a judgment of conviction and it is for a non-probationable offense the accused
may still appeal and apply for probation only if the appeal is with respect with the validity of the
penalty. If the accused appeals not only the validity of penalty but also the substantive merits of
the case, then he is not allowed to apply for probation because if you question the substance of
the case, then you are not a repentant applicant and you do not accept the sins you committed.
Interestingly, after the promulgation of the Dimakuta case, the congress released an
amendment of the probation law RA 10707. In the amendment of the probation law, when you
are convicted of non-probationable penalty and you appeal, and in appeal your penalty is now
changed to probationable penalty you now apply for probation. So in the new law, it does not
need to distinguish what is to appeal whether it is the penalty or the substantive merits of the
case. As long as you appeal and the appellate court imposed a probationable penalty, you can
now apply for probation.
So between Dimakuta and RA 10707 which shall apply? NOT ANSWERED NO JURISPRUDENCE
YET.

Q: When shall there be an entry of judgment in a criminal case? When the judgment is final and
executory.
A: Suppose there is a judgment of conviction on Jan 1 2019, the accused received the judgment
of conviction on Feb 1 2019, and on March 1 2019, the court issued a notice of entry of
judgment, stating that the accused received the decision on Feb 1 and after the lapse of 15 day
period there has been no appeal, therefore the judgment is already entered.
When was there an entry of judgment? Jan 1, Feb 1 or March 1?
In Jan 1 2019. The answer is that entry of judgment is always reckoned from the date of
promulgation of judgment. So even if entry of judgment will happen 1 year after the
promulgation of judgment, it will always be reckoned from the date of promulgation of
judgment.