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DEPARTMENT OF JUSTICE
Office of the City Prosecutor
__________________________
,
Complainant,
FOR: ADULTERY
versus
Respondents.
VERIFIED MOTION FOR RECONSIDERATION
PREFATORY STATEMENT
The determination of the existence of probable cause lies
within the discretion of the prosecuting officers after
conducting a preliminary investigation in accordance with
the guidelines set forth in the 2000 Revised Rules of
Criminal Procedure.
The Ratiocination for the requirement is to exclude self
serving and unreliable evidence for purposes of the
preliminary investigation and to ensure that the
affidavits supporting the factual allegations in the
Complaint have been sworn before a competent officer
and that the affiant has signed the same in the former’s
presence declaring on oath the truth of the statement
made considering that this becomes part of the bases in
finding probable guilt against the respondent.
TIMELINESS OF THE MOTION
2. Pursuant to the Rules on Procedure in The Investigation, Prosecution
and Trial of Criminal Cases, specifically, Part III, Section 56 thereof, Respondent is
given 10 days from the receipt of the Resolution, or until __________________ to file
a Motion for Reconsideration;
3. However, __________________ falls on a Sunday, thus Respondent has
until the next working day, _______________ to file the motion;
4. Therefore, the filing of this Motion for Reconsideration;
GROUNDS FOR THE FILING OF THE MOTION FOR
RECONSIDERATION
5. The Recommendation for filing the Information made by the Honorable
Office of the City Prosecutor is SOLELY based on the Affidavit Complaint and the
Judicial Affidavits of the witnesses that were submitted to the aforesaid Honorable
Office;
6. It is worth noting that no other pieces of evidence were offered to prove
nor support the charge of Adultery against herein Respondent;
I. It is mandatory that the Affidavit
Complaint and the supporting
Affidavits of Witnesses must be
subscribed and sworn to before the
authorized officers. Otherwise, it is
considered an unsworn statement; and
unsworn statements are considered
hearsay and selfserving, thus,
inadmissible in evidence.
7. Herein Respondent, maintains that the Affidavit Complaint as well as
the Judicial Affidavits of the Witnesses should not have been entertained and
considered as evidence by the Honorable Prosecutor for the reason that it was not
subscribed and sworn to before an authorized officer or even before a
public prosecutor as mandated by the Revised Rules of Criminal Procedure,
hence a mere scrap of paper;
8. Specifically, Rule 112, section 3, paragraph (a) of the 2000 Revised
Rules of Criminal Procedure mandates the procedure as to the conduct of
investigations, whether a preliminary investigation is required to be conducted or
not. To wit:
(a) The complaint shall state the address of the respondent and
shall be accompanied by the affidavits of the complainant and
his witnesses, as well as other supporting documents to establish
probable cause. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official file. The
affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before a
notary public, each of who must certify that he personally
examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.”
(underscoring and emphasis ours)
11. A perusal of the record of this case evidently shows that the
Complainant has not even alleged the unavailability of the prosecutor or any other
government official who is authorized to administer oath to excuse the fact that only
an Acknowledgment was made in his Affidavit Complaint;
12. Likewise, the Judicial Affidavits of the witnesses that were attached to
the Affidavit Complaint were likewise not “subscribed and sworn to” before any
prosecutor or government official authorized to administer oath;
13. To excuse the abovementioned fact that the Judicial Affidavits of the
Witnesses were only attested to before a notary public, the Complainant once again
offered no proof or allegation regarding the unavailability of the prosecutor or any
other government official who is authorized to administer oath to justify the non
compliance with the mandate of the Rules;
14. More importantly, the case of MARIE CALLOCLARIDAD vs. PHILIP
RONALD P. ESTEBAN and TEODORA ALYN ESTEBAN 1 is instructive in
determining the ramifications of the failure to comply with the said certification
requirement. To state:
x x x
In Oporto, Jr. vs. Monserate 2, it was held that the
requirement set forth under Section 3, Rule 112 of
the Revised Rules of Criminal Procedure is
mandatory. This is so because the rules on preliminary
investigation do not require a confrontation between the
parties. Preliminary investigation is ordinarily conducted
through submission of affidavits and supporting
documents, through submission of affidavits and
supporting documents, through the exchange of pleadings.
Thus, it can be inferred that the rationale for
requiring the affidavits of witnesses to be sworn to
before a competent officer so as to ensure that the
affidavits supporting the factual allegations in the
Complaint have been sworn before a competent
officer and that the affiant has signed the same in
the former’s presence declaring on oath the truth of
the statement made considering that this becomes
part of the bases in finding probable guilt against
the respondent. Wellsettled is the rule that persons, such
1
G.R. No. 191567, March 20, 2013
2
A.M. No. MTJ961109, April 16, 2001
as an employee, whose unsworn declarations in behalf of a
party, or the employee’s employer in this case, are not
admissible in favor of the latter. Further, it has been
held that unsworn statements or declarations are
selfserving and selfserving declarations are not
admissible in evidence as proof of the facts asserted,
whether they arose by implication from acts and
conduct or were made orally or reduced in writing.
The vital objection to the admission to this kind of
evidence is its hearsay character.
15. As a consequence of the noncompliance with the Rules, the Supreme
Court has clearly held that such UNSWORN STATEMENTS in both the Judicial
Affidavits accompanying the Affidavit Complaint including the Judicial Affidavit of
the Complainant himself are all selfserving and are not admissible in evidence as
proof of the facts asserted. Thus, all the foregoing Judicial Affidavits deserve no
probative value and should be treated as mere scraps of paper;
16. Hence, the Honorable Office of the City Prosecutor erred in considering
and giving weight to the Judicial Affidavits of the Complainant, as well as the
Judicial Affidavits of his witnesses since all of their Judicial Affidavits were not
subscribed and sworn to before any prosecutor or government official authorized to
administer oath;
To subscribe literally means to write underneath, as one's
name; to sign at the end of a document (Black's Law Dictionary,
Fifth ed., 1279). To swear means to put on oath; to declare on
oath the truth of a pleading, etc. (Id., 1298). Accordingly, in a
Jurat, the affiant must sign the document in the presence of and
take his oath before a notary public or any other person
authorized to administer oaths.
20. It is worthy to note that the Complainant never made an explanation
why he resorted to an Acknowledgment before the consular official considering the
fact that consular officials have the power and authority to administer an oath and
thus is one of the government officials contemplated in the above stated provision of
the Rules;
21. Furthermore, Section 1 of Rule II of A.M. No. 02813SC or the 2004
RULES ON NOTARIAL PRACTICE defines an ACKNOWLEDGMENT as:
22. As defined above, an Acknowledgment only imparts that the signature
on the document was voluntarily affixed by the person executing the document for
the purposes stated in the document, and that he declares that he has executed the
document as his free and voluntary act and deed;
23. Clear enough, nowhere in an Acknowledgment can one see nor deduce
compliance with the requirements of Rule 112, Section 3 of the Revised Rules of
Criminal Procedure, which is the declaration under oath as to the truthfulness of
the statements embodied in the Affidavit Complaint before a competent officer.
24. The same holds true with regard to the Affidavit of Witnesses
accompanying the Affidavit Complaint. While it be proper under the Judicial
Affidavit Rule to have the affiant subscribe the same before any notary public, this
act is INSUFFICIENT in a case before the Office of the Prosecutor since it does not
conform to the mandatory requirements of the Rules with regard to preliminary
investigation;
25. Thus, an Acknowledgment, as well as the subscription before a notary
public cannot be interpreted to comply with the requirement of the aforementioned
Rules;
26. The Manual for Prosecutors Part III, Section 14, paragraph (e) clearly
provide that if the Complaint and the supporting Affidavits are not properly
subscribed and sworn to as prescribed under the Rules on Criminal Procedure, the
same shall cause its outright dismissal. To wit:
SEC. 14. Dismissal of complaint. The following, among others, shall
constitute sufficient basis for the outright dismissal of a complaint:
d) that the acts and/or omissions alleged in the complaint
and/or the supporting affidavits do not sufficiently
show that a criminal offense or violation of a penal law
has been committed; or
e)
that the complaint and the supporting affidavits
are unsigned and/or have not been duly subscribed
and sworn to as prescribed under the Rules on
Criminal Procedure.
27. In addition, the Honorable Prosecutor stated in its Resolution that:
“Now, whether or not the said documents were
properly subscribed and notarized as mandated by
the judicial affidavit rule is a matter beyond the
jurisdiction of the undersigned to determine as we
are only interested in the criminal culpability of the
respondents.”
28. However, it is well settled that the Prosecutor is mandated, not by the
Judicial Affidavit Rule, but instead by the Rule 112, Section 3, Paragraph (a) of the
Revised Rules of Criminal Procedure to accept and give weight only to those
affidavits that are properly subscribed and sworn to before any prosecutor or
government official authorized to administer oath;
29. Besides, the issue in this case is not only with regard to the compliance
of the Complaint and the supporting affidavits with the Judicial Affidavit Rule
alone, but importantly with its conformity with the requirements of the Rules of
Criminal Procedure;
31. Be it noted that Prosecutors are endowed with ample powers in order
that they may properly fulfill their assigned role in the administration of justice. It
should be realized, however, that when a man is hailed to court on a criminal
charge, it brings in its wake problems not only for the accused but for his family as
well. Therefore, it behooves a prosecutor to weigh the evidence carefully and to
deliberate thereon to determine the existence of a prima facie case before filing the
information in court. Anything less would be a dereliction of duty 3.
32. With all due respect to the Honorable Prosecutor, It is not only the
technical issues that herein respondent focused on. The rules laid down under Rule
112, section 3 of the 1997 Rules of Court were not merely guide for the prosecutors
to follow or not but are mandatory in nature;
33. To remind the Honorable Prosecutor, the reason for the requirement
that affidavits must be based on personal knowledge is to guard against hearsay
evidence. The requirement of personal knowledge should have been strictly applied
considering that the allegations in affidavit complaint were not supported with any
evidence. The alleged adulterous relationship was based on his allegation that the
complainant allegedly saw the “love messages” between the respondents. Aside from
this bare allegations of the Complainant, the narration in the affidavit complaint of
alleged adulterous relationship of the respondents was based on the unsubscribed,
unauthenticated judicial affidavits of his witnesses which was just photocopied from
the cases filed by ________________;
34. The Honorable Prosecutor is likewise reminded that although the law
has accorded them broad prosecutorial powers, such an authority is not unfettered
because public prosecutors are constrained to adhere to the timehonored principle
that a finding of probable cause requires substantial evidence. And substantial
evidence is that which a reasonable mind might accept as adequate to support a
conclusion ;
35. In this case, for probable cause to exist, it is thus imperative that the
elements of Adultery must be established by COMPETENT EVIDENCE required by
the Rules in Preliminary Investigation;
3
Sales v. Sandiganbayan, G.R. No. 143802, 16 November 2001, 369 SCRA 293, 305 citing Bernardo v. Mendoza,
G.R. No. L-37876, 25 May 1979, 90 SCRA 214, 220; Vda. De Jacob v. Puno, G.R. Nos. L-61554-55, 31 July 1984,
131 SCRA 144, 149.
36. Furthermore, the Supreme Court in the case of PREFERRED HOME
SPECIALTIES, INC. VS. COURT OF APPEALS enunciated that while probable
cause should be determined in a summary manner, there is a need to examine the
evidence with care to prevent material damage to a potential accused’s
constitutional right to liberty and the guarantees of freedom and fair play, and to
protect the State from the burden of unnecessary expenses in prosecuting alleged
offenses and holding trials arising from false, fraudulent or groundless charges;
37. Under the same vein, it is likewise worthy to state that Prosecutors
are dutybound to secure the innocent against hasty, malicious and oppressive
prosecution and to protect him from an open and public accusation of a crime and
from the trouble, expense and anxiety of a public trial ;
38. Hence the Judicial Affidavits of the Complainant and his Witnesses
should have necessarily been disregarded by the Office of the City Prosecutor for
being hearsay and selfserving; thus, are inadmissible in evidence;
39. How can the Honorable Prosecutor engender a wellfounded belief that
the crimes have been committed and that the Respondent is probably guilty when
there was NO evidence to support the complainant’s claim? In fact, the complaint
was not even based on personal knowledge worse, it was unsubscribed and
unsworn;
40. Consequently, given that the facts from which the Honorable
Prosecutor has derived its findings from were not even duly established by
competent evidence, what then will be the basis in finding a probable cause for the
crime of adultery?
PRAYER
IN VIEW OF THE FOREGOING, it is respectfully prayed of this Honorable
Office that the Resolution, dated __________________, recommending for the filing of
an information for Adultery against herein Respondents be REVERSED and SET
ASIDE, and that a Resolution be issued DISMISSING the Complaint.
Other reliefs, just and equitable in the premises, are likewise prayed for.
RESPECTFULLY SUBMITTED.
Davao City, Philippines. __________.
NOTICE OF SUBMISSION
Administrative Officer
City Prosecution Office
__________________________
Please take notice that we are submitting the foregoing Motion for the kind
consideration of this Honorable Office immediately upon receipt hereof sans
appearances and without further arguments.
Thank you.
Copy furnished:
VERIFICATION
Republic of the Philippines)
Davao City )S.S.
xx
AFFIDAVIT OF SERVICE
2) ______________________, I served a Motion for Reconsideration by registered mail
pursuant to Section 7, Rule 13 of the Rules of Court to:
___________________
Affiant
SUBSCRIBED AND SWORN to before me this ______________________ at Davao
City, Philippines; Affiant exhibiting to me _______________________________.
Doc. No. ____;
Page No. ____;
Book No. ____;
Series of 20___.