CRIMINAL PROCEDURE

A. Prejudicial question

The elements of a prejudicial question are:

(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.

The prejudicial question may be raised:

(a) during the preliminary investigation of the offense or
(b) in court before the prosecution rests its case.

The suspension of the criminal case due to a prejudicial question is only a procedural matter, and
is subject to a waiver by virtue of prior acts of the accused.

There is no prejudicial question where one case is administrative and the other is civil.

B. Amendment of complaint or information

When are the rights of an accused prejudiced by the amendment of the complaint or information?

The amendment of the information to allege the element(s) not stated in the information is a
material amendment, but the same can be done because the accused has not been arraigned,
nor can a dismissal of the information on such ground put the accused twice in jeopardy.

A good tactical move may require that the accused should first plead to the information and
thereafter file a motion to quash either before or after the prosecution has presented its evidence.
Pursuant to Sec. 9 of Rule 117, an accused, even after he has entered his plea, may still move to
quash the information on the ground that it does not charge an offense. If the case is dismissed
on such ground, the prosecution may not be permitted to correct the information because the
accused has already pleaded and to allow such amendment may place the accused twice in
jeopardy.

C. Arrest without warrant; when lawful

1. R. 113, S5: A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(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;
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.

2. In a citizen’s arrest, the person may be arrested and searched of his body and of his personal
effects or belongings, for dangerous weapons or anything which may be used as proof of the
commission of an offense, without need of a search warrant.

3. Rule 113, Sec. 5(a) refers to arrest in flagrante delicto while Sec. 5(b) refers to hot pursuit.

4. Rule 113, Sec. 5(b) authorizes warrantless arrest “when an offense has in fact just been
committed.” The word “just” implies immediacy in point of time.
D. Bail, as a matter of right; as a matter of discretion

1. As a matter of right:
 before or after conviction by the MTC
 before conviction, for all offenses punishable by lower than reclusion perpetua
 the prosecution does not have the right to oppose or to present evidence for its
denial.

2. As a matter of discretion:
 before conviction, in offenses punishable by death, reclusion perpetua or life
imprisonment
 after conviction by the RTC of a non-capital offense
 prosecution is entitled to present evidence for its denial.

E. Motion to quash; when to file; failure to file

General rule: A MTQ may be filed by the accused at any time before the accused enters his plea.
Thereafter, no MTQ can be entertained by the court.

Exception: under the circumstances mentioned in Sec. 9, Rule 117, which adopts the omnibus
motion rule. This means that a MTQ may still be filed after arraignment on the ground that the
facts alleged in the information charge no offense, that the offense or penalty has prescribed, or
that the doctrine of double jeopardy precludes the filing of the information

F. Demurrer to Evidence; Definition; Denial

1. Demurrer to evidence is an objection by one of the parties in an action, to the effect that the
evidence which his adversary produced is insufficient in point of law, whether true or not, to
make out a case or sustain the issue.

After the prosecution shall have rested its case, the case may be dismissed if the accused
files demurrer with or without leave of court.

What if the demurrer is denied?

 With leave of court, accused can present his evidence
 Without leave of court, accused waives right to present evidence

2. With or Without Leave of Court

 With leave – if the motion is denied, he can still present evidence
 Without leave – if the motion is denied, he loses the right to present evidence and the
case will be deemed submitted for decision

3. If there are two or more accused and only one of them presents a demurrer to evidence,
without leave of court, the trial court may defer resolution thereof until the decision is
rendered on the other accused.

4. An order denying the motion for leave of court to file a demurer shall not be reviewable by
appeal or by certiorari before judgment. This is because demurrer is merely interlocutory.

G. Former conviction or acquittal; double jeopardy

1. Double jeopardy will apply...

 …when the complaint or information is dismissed by a court of competent jurisdiction
after the prosecution has presented its evidence even if the dismissal is in the mistaken
ground of lack of jurisdiction.
  …even if the dismissal is made with the express consent of the accused, or upon his own
motion, if it is predicated on insufficiency of the prosecution evidence or denial of the right
to a speedy trial. In both instances, the dismissal has the effect of acquittal.

2. Double jeopardy will not apply…

 … in case of a conviction of a crime under a special law, which also constitutes an
offense under the Revised Penal Code.
 Reason: the former is malum prohibitum, while the latter is malum in se.
 Thus, it has been held that conviction for the crime of illegal recruitment under the
Labor Code does not preclude punishment for the offense of estafa under the RPC.
 where 2 informations are filed charging the same accused with 2 different elements, as in
the issuance of bouncing check for estafa under the RPC and violation of BP 22.
 where after trial of a charge of serious physical injuries, the municipal trial court
dismissed the case to give way to the filing of a complaint for frustrated murder, as it
believed that what was proved was frustrated murder, the dismissal was null and void
because the trial court should have rendered judgment based on the charge alleged in
the information and the evidence adduced during the trial. Since the dismissal was null
and void, it did not place the accused twice in jeopardy for the continuation of the
proceedings for serious physical injuries.
 where the accused has been sentenced to suffer a wrong penalty by the trial court, the
petition for certiorari filed by the prosecutor to correct the penalty which should be lower
than that imposed does not place the accused twice in jeopardy because it would shorten
the penalty and is favorable to the accused.
 where one case is administrative in nature and the other criminal. Neither does it apply in
preliminary investigations.

H. Provisional dismissal
1. A trial court may not order a provisional dismissal of the case without the express consent of
the accused and prior notice to the offended party. The trial court, cannot, on its own,
provisionally dismiss the case, nor can it dismiss it provisionally without the express consent of
the prosecutor.
2. The provisional dismissal of offenses punishable by imprisonment not exceeding 6 years or a
fine of any amount, or both, shall become permanent 1 year after issuance of the order without
the case having been revived. With respect to offenses punishable by imprisonment of more than
6 years, their provisional dismissal shall become permanent 2 years after issuance of the order
without the case having been revived.

 The prosecution may not appeal from a judgment of conviction in order to increase the
penalty. Such an appeal would put the accused in double jeopardy (Rule 122, Sec. 1). He
was already in jeopardy in the trial court of being convicted and sentenced to such a higher
penalty and the prosecution’s appeal for a higher penalty would constitute a second jeopardy
(People v Pomeroy).
 The court may order the discharge of a co-accused to be turned into a State witness
(particeps criminis) in a case filed before it when, after requiring the prosecution to present
evidence and the sworn statement of each proposed state witness at a hearing in support of
the discharge, it is satisfied that:
1. There is absolute necessity for the testimony of the accused whose discharge is
requested;
2. There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of the accused;
3. The testimony of said accused can be substantially corroborated in its material points;
4. Said accused does not appear to be the most guilty (not incurred the highest degree of
culpability in terms of participation in the commission of the offense, and is not
necessarily equated with the severity of the penalty to be imposed; actual and individual
participation in the commission of the crime); and
 5. Said accused has not at anyy time been convicted (note: final judgment) of any offense
involving moral turpitude (Rule 119, Sec 17).
 Provisional arrest is the taking into custody of a person who is subject of a request for
extradition, and it is issued by the RTC upon the petition of the Director of the NBI (Philippine
Extradition Law, PD 1069, Sec 20).
 Prosecution witnesses may also be required to post bail to ensure their appearance at the
trial of the case where:
1. There is a substitution of information (Rule 110, Sec. 14); and
2. Where the court believes that a material witness may not appear at the trial (Rule 119,
Sec. 14) (Note: this applies to both prosecution and defense witnesses).
 The following are the mandatory duties of a trial court when an accused pleads guilty to a
capital offense:
1. The court shall conduct a searching inquiry into the voluntariness and full comprehension of
the consequences of the plea;
2. The court shall require the prosecution to prove the guilt of the accused and his precise
degree of culpability; and
3. The court shall allow the accused to present evidence to prove, inter alia, mitigating
circumstances (Rule 116, Sec. 3).
 The issue of double jeopardy arises when (a) the accused is charged with the same offense
in two separate pending cases [Rule 117, Sec. 3(i)], (b) the accused is prosecuted anew for
the same offense after he had been convicted or acquitted thereof (Rule 117, Sec. 7), or (c)
the prosecution appeals from a judgment in the same case (Rule 122, Sec. 2). (Note: these
are the three protections provided by double jeopardy).
 As a general rule, the dismissal of a criminal case made with the express consent of the
accused or upon his motion bars a plea of double jeopardy. But if the dismissal is actually an
acquittal, there would be double jeopardy even if it is with the express consent of the
accused. This would take place where actually the basis for the dismissal is the lack or
insufficiency of evidence (People v Donesa, Jan. 31, 1973) or the denial of the right to speedy
(People v Cloribel, Aug, 31, 1964).
 The following are the requisites for a provisional dismissal:
1. Express consent of the accused; and
2. Notice to the offended party (Rule 117, Sec. 8).
 Distinguish between a complaint and an information.
In criminal procedure, a complaint is a sworn written statement charging a person with an
offense, subscribed by the offended party, any peace officer or other peace officer charged
with the enforcement of the law violated (Rule 110, Sec. 3); while an information is an
accusation in writing charging a person with an offense subscribed by the prosecutor and
filed with the court. (Rule 110, Sec. 4).
 Criminal cases, as a rule, may not be adjudicated without trial. The exceptions are the
following:
1. Plea of guilty;
2. Motion to quash on the ground of double jeopardy or extinction of criminal action or
liability; and
3. Motion to dismiss on the ground of violation of the right to a speedy trial.
 The right to preliminary investigation is a personal right. Therefore, it may be waived
expressly or impliedly as by failure to demand such right or by non-appearance at the
investigation.
 Any objection to the lack of preliminary investigation must be made before entry of the plea.
 Posting of bail does not constitute a waiver of the preliminary investigation or of irregularities
therein (Rule 114, Sec. 26).
 Injunction will not lie to restrain a criminal prosecution. Cite the exceptions:
1. To afford adequate protection to the constitutional rights of the accused;
2. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions;
3. When double jeopardy is clearly apparent;
4. Where the charges are manifestly false and motivated by the lust for vengeance;
5. Where there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied. (Roberts v. CA, Brocka v. Enrile)