Professional Documents
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Rule 121
Rule 121
Rule 121
NEW TRIAL OR RECONSIDERATION
NEW TRIAL
Q: What is the effect of the filing of a motion for new trial on the double jeopardy rule?
A: An accused who files a motion for new trial WAIVES the protection of double jeopardy, so that if
the motion is granted, he can be tried and convicted of the graver offense charged in the complaint or
information. (Trono vs. U.S. 11 Phil. 726; Santos vs. People, 64 Phil. 10)
Actually, it is like an appeal eh – when an accused appeals the judgment against him, he is
waiving his right against double jeopardy. And it has happened several times in the past where the
accused was charged with murder and convicted of homicide. He was not contented. When he filed an
appeal, he was convicted of murder. Sometimes, appeal can give you a worse situation.
It happened here in Davao where a lawyer was charged as a principal for falsification of documents
that he notarized. The judge convicted him of falsification but merely as an accomplice. Binabaan ba!
But I think the intention of the judge was to allow the lawyer to ask for probation. Pero hindi
nakuntento ang lawyer. He appealed to the CA. Naloko na! Nasamot gyud! The CA convicted him as
principal. And what was worse, the CA said that since the accused was a lawyer, let a copy of the
decision be brought to the SC for disbarment proceedings. Na disbarred pa! That’s what happens for
appealing!
Alright, and take note, at any time before a judgment of conviction become final. Now this is one
provision which you have to compare with Rule 120, Section 7 on Modification of Judgment.
Now, there is a new section in the New Rules which created confusion – Rule 119 Section 24.
SEC. 24. Reopening.– At any time before finality of the judgment of conviction, the
judge may, motu proprio or upon motion, with hearing in either case, reopen the
proceedings to avoid a miscarriage of justice. The proceedings shall be terminated
within thirty (30) days from the order granting it. (n)
When do you make the motion for reopening? At anytime before the judgment of conviction
becomes final? Pareho di ba! The language of the 3 provisions are identical, motion for: (1) reopening of
trial; (2) modification of judgment of conviction; and (3) new trial or reconsideration
That is a new provision. So that when I looked at the new Rules, talagang nalito ako. Ano ba itong
reopening of trial. How is this different from the others?
That is why, during the seminar in Men Seng last November 30 on the New Rules, I brought this
out, eh. Would somebody be kind enough to tell the difference between the three? Everything kasi is
done before the judgment of conviction becomes final! Of course, nobody stood up there to tell me the
difference.
Kaya nalito ako. Former Solicitor General Galvez, when he was here, told me that “typographical
error man yung Rule 119 ba, hindi man ganyan ang aming recommendation.” Why nga naman will
you reopen after judgment of conviction? Reopenning is done before judgment is rendered. Ito naman,
paglabas! Naloko na! It created a lot of confusion. So if we believe Galvez, the confusion is caused by a
typographical error, which according to him is not the language of the Rules submitted to the SC and
Review on the 2000 Revised Rules on Criminal Rule 121
Procedure 2002 Edition New Trial Or Reconsideration
There is also a rule on New Trial in civil cases under Rule 37, you know the grounds: FAME, NDE,
etc. And there are some rules there to follow such as the motion for new trial must be supported by
affidavits of merits, or the motion for reconsideration must point out specifically the error committed
by the trial court, and the portion of the decision not supported by the evidence. Otherwise, if you do
not comply with these requisites, what is the name of your motion? PRO FORMA. Pro Forma, meaning
the filing of your motion for new trial or reconsideration will NOT interrupt the period to appeal. That
is the effect.
Q: Is there such a thing as pro forma motion for new trial or reconsideration in criminal cases?
Where your motion is obviously dilatory? Your grounds are too general, too vague, too ambiguous? No
affidavit of merits? And therefore if it is denied, there is no more right to appeal by the accused
applying the pro forma rule?
A: The SC ruled in the past that the pro forma rule in civil cases DOES NOT apply to criminal
cases. In criminal cases, a general statement of the grounds for new trial is sufficient. (People vs.
Colmenares, 57 O.G. 3714) Even if you do not go into details because you expect your motion to be
denied, but the filing will still interrupt the period. It is too harsh if the remedy of appeal will be
removed from the accused simply because of a motion for new trial which is not prepared properly. So
the pro forma rule will not apply in criminal cases. The filing of a motion for new trial or
reconsideration will always interrupt the running of the period to appeal.
SEC. 2. Grounds for a new trial. – The court shall grant a new trial on any of the
following grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of the
accused have been committed during the trial;
(b) That new and material evidence has been discovered which the accused could
not with reasonable diligence have discovered and produced at the trial and which if
introduced and admitted would probably change the judgment.
1. Errors of law;
Example: In one case, during the trial, the trial court excluded a defense witness from
testifying based on an erroneous interpretation of the rules of evidence. The judge disqualified
him. But it turned out that the witness was not disqualified. That is an error of law. For all you
know, if his testimony will be given, the accused will be acquitted. Therefore, a new trial should
be granted where he should be allowed to testify. (People vs. Estefa, 86 Phil. 104)
Example: In one case, the trial court compelled the accused, over his objection, to submit
to trial without the assistance of his counsel. (People vs. Enriquez, L-4934, November 28, 1951)
If the accused is convicted because of such irregularity, this is a valid ground for new trial.
Besides, why should the judge punish the accused? He should punish the lawyer.
3. Newly discovered evidence; this is similar to civil cases, newly discovered evidence. The
requisites are the same:
a.) discovered after trial;
b.) it could not have been discovered before trial even with the use of reasonable diligence
c.) and if introduced and admitted would probably change the decision
There is a case, the trial is concluded, and the accused is convicted. Within the period of 15 days
from promulgation, here comes the accused filing a motion for new trial on the ground that the
Review on the 2000 Revised Rules on Criminal Rule 121
Procedure 2002 Edition New Trial Or Reconsideration
prosecution witness has executed an affidavit recanting his testimony. The prosecution witness, in
effect, is saying that what he said during the trial is not true.
Q: May a new trial be granted on the ground of loss of recantation of prosecution witnesses?
A: As a GENERAL RULE, recantation is NOT a ground for new trial, otherwise there would never be
an end to criminal litigation. “The Court has looked with disfavor upon retraction of testimonies
previously given in court. Thus, the Court has ruled against the grant of a new trial on the basis of a
retraction by a witness. The rationale for the rule is obvious: Affidavits of retraction can easily be
secured from poor and ignorant witnesses usually for a monetary consideration. Recanted testimony is
exceedingly unreliable. There is always the probability that it may later be repudiated. So courts are
wary or reluctant to allow a new trial based on retracted testimony.” (People vs. Clamor, July 1, 1991;
People vs. Soria, October 4, 1996)
Q: Is there an EXCEPTION?
A: YES, when it is made to appear that there is no evidence sustaining the judgment of conviction
other than the testimony of the recanting witness. (U.S. vs. Dacir, 26 Phil. 503) When aside from the
testimonies of the retracting witness or witnesses there is no other evidence to support a judgment of
conviction, a new trial may be granted. (People vs. Clamor, July 1, 1991)
HELD: “It is conceded that the State has the sovereign right to prosecute criminal
offenses under the full control of the fiscal and that the dismissal of criminal cases by the
execution of an affidavit of desistance by the complainant is not looked upon with favor.
However, it is also true that an affidavit of desistance may create serious doubts as to the
liability of the accused. At the very least, it calls for a second hard look at the records of the
case and the basis for the judgment of conviction. Jurisprudence on the effect of desistance
notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of
paper.”
Sometimes I have seen affidavits of recantation made by the complainant, alam mo kung anong
nakalagay? – “I have lost interest in continuing the case.” Pero tapos na, naka-testify na siya. And on
the basis of that, a new trial was granted. Mali man iyan ba. Para mag-new trial, dapat na sabihin
niya, “Mali ang mga sinabi ko!” If you say that you are not interested, you are not really repudiating
what you said. That is what the SC emphasized in the 1998 case of
HELD: “To warrant a new trial, the affidavit of desistance must constitute a recantation
and not a mere withdrawal from the prosecution of the case. The complainant's affidavit of
desistance did not constitute a recantation, because she did not deny the truth of her
complaint but merely sought to be allowed to withdraw and discontinue the case because
she wished to start life anew and live normally again. She never absolved or exculpated the
accused. In other words, a recantation of a prior statement or testimony must necessarily
renounce the said statement or testimony and withdraw it formally and publicly.”
Parang ganito ba: “Yung sabi ko noon na ni-rape niya ako, di man na tinood ba, pumayag man ako
ba!” Yan, baliktarin mo lahat ang sinabi mo. Hindi yung: “I am not interested, kapoy na, ayoko na.”
Hindi pwede yan, that is not recantation because you are not disowning what you said earlier.
PROBLEM: Let us assume that Sheriff was convicted purely because of the testimony of the
complainant, Thaddeus. Now, Thaddeus makes an affidavit stating that everything he said is not true.
Meaning he is really recanting – binabawi niya lahat ng sinabi niya.
Q: After that, can the court say that the accused is now acquitted because now Thaddeus is
telling the truth when before Thaddeus was not telling the truth? Is this what will happen?
A: The SC said NO. The only thing that will happen is that a new trial will be granted. But this
does not mean that the accused shall be acquitted. When we say new trial, this means that the court
should hear the testimony of the complainant again. BUT after testifying, the court may say, “You say
you were lying before and you are telling the truth now, but the court does not believe you because as
far as the court is concerned, you were telling the truth before and you are lying now.” Therefore the
conviction stands. That is possible.
Because some lawyers believe that if a new trial is granted, sigurado na acquitted na ang accused.
NO, the SC never guaranteed that. It will only be a ground for new trial without a guarantee whether
the decision will be reversed or not. But in practice, lutong Macau lahat iyan. Usapan nalang iyan
between the lawyer and the fiscal tapos kasali pa ang judge. That is what is happening, I know that.
But if you follow the rules, there is no guarantee that if new trial is granted, the accused will be
acquitted. There is no rule that says that when a witness testifies twice, the court will always believe
the latest testimony. And the SC has emphasized that in many cases, one of them is the case of
HELD: “Where a witness testifies for the prosecution and retracts his or her testimony
and subsequently testifies for the defense, the test in determining which testimony to
believe is one of comparison coupled with the application of the general rules in evidence.”
So you apply what you know about evidence, about credibility, appreciation of evidence.
“The rule should be that a testimony solemnly given in court should not be lightly set
aside and that before this can be done, both the previous testimony and the subsequent
one be carefully compared, the circumstances under which each given carefully scrutinized,
the reasons or motives for the change carefully scrutinized — in other words, all the
expedients devised by man to determine the credibility of witnesses should be utilized to
determine which of the contradictory testimonies represents the truth.”
Of course, if the court believes that the second testimony is accurate and the witness lied during
the first, then acquit! But if the court believes that the witness was telling the truth in the first
testimony, the conviction stands.
RECONSIDERATION
SEC. 3. Ground for reconsideration.– The court shall grant reconsideration on the
ground of errors of law or fact in the judgment, which requires no further proceedings.
(3a)
SEC. 4. Form of motion and notice to the prosecutor. – The motion for new trial or
reconsideration shall be in writing and shall state the grounds on which it is based. If
based on a newly-discovered evidence, the motion must be supported by affidavits of
witnesses by whom such evidence is expected to be given or by duly authenticated
copies of documents which are proposed to be introduced in evidence. Notice of the
motion for new trial or reconsideration shall be given to the prosecutor. (4a)
SEC. 5. Hearing on motion. – Where a motion for new trial calls for resolution of any
question of fact, the court may hear evidence thereon by affidavits or otherwise. (5a)
Q: Of course, what are the effects of granting the motion for new trial or reconsideration.
A: You have Section 6:
Q: Will there be really a trial de novo or will there just be a reopening of the trial to introduce the
newly discovered evidence?
A: Under paragraph [c] which we already discussed: “In all cases, when the court grants new trial
or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered
accordingly.”
Q: Suppose after new trial, the court still finds the accused guilty?
A: There will be another judgment but definitely the original judgment is already set aside. When
the court grants the motion, wala na iyon! Regardless of whether the new judgment will be the same or
not.
SPACE-FILLER #8: