CRIMINAL PROCEDURE

Prosecution of Offenses (Rule 110)

Purpose of criminal action – to determine the penal liability of the

accused for having outraged the state with his crime, and if, he be
found guilty, to punish him for it. In this sense, the parties to the
action are the People of the Philippines and the accused. The
offended party is regarded as merely a witness for the state.

How criminal actions are instituted

1. When a preliminary investigation is required (4,2,1) – filing

the complaint with the proper officer for the purpose of conducting
the required preliminary investigation.

2. When a preliminary investigation is not required – criminal

action is instituted in either of two ways:
a. Filing the complaint or information directly with MTC and
MCTC;
b. Filing the complaint with the Office of the Prosecutor.

* In Manila and other chartered cities, a special rule prevails – The

complaint shall be filed with the office of the prosecutor UNLESS
otherwise provided in their charters.

* No direct filing with RTC (requires preliminary investigation), in

MeTC (special rule prevails) However, in case of a conflict between
a city charter and a provision of the ROC, the former being a
substantive law shall prevail.

Effect of the institution of the criminal action on the prescriptive

period

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GR: The institution of the criminal action shall interrupt the period
of prescription of the offense charged UNLESS otherwise provided
in special laws. (XPN)

* Prescription begins from the commission of the crime or from the

discovery thereof and the institution of judicial proceedings for its
investigation and punishment.

Prosecution of the criminal action

Who must prosecute; who controls the prosecution – a criminal

action is prosecuted under the direct and control of the public
prosecutor. (The accused for having outraged the state with his
crime, it necessarily follows that a representative of the State shall
direct and control the prosecution thereof.)

Appearance of a private prosecutor

The appointment of a private prosecutor is done by the offended

party and is the mode by which the latter intervenes in the
prosecution of the offense. This intervention is however, ONLY
ALLOWED where the civil action for the recovery of the civil
liability is instituted in the criminal action pursuant to Rule 111.

When the offended party may not intervene in the prosecution

of the offense through a private prosecutor

If the offended party:

a. waives the civil action;
b. reserves the right to institute it separately;
c. institutes the civil action prior to the criminal action.

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Prosecution of a criminal action in the MTC or MCTC

A criminal action in a MTC or MCTC 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. offended party;
b. any peace officer;
c. public officer charged with the enforcement of law.

Prosecution for violation of special laws – the same shall be

prosecuted pursuant to the provisions of said law.

Intervention of the offended party in the prosecution of the

criminal action

Intervention of the offended party (through a private

prosecutor)

A fundamental principle in criminal law is the rule that, “Every

person criminally liable for a felony is also civilly liable” (Art. 100,
RPC) Thus, generally, a person convicted of a crime is both
criminally and civilly liable.

Civil liability for a crime includes:

1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
XPN: When the civil liability is extinguished, the offender shall be
obliged to satisfy the civil liability resulting from the crime
committed by him, even if he has already served his sentence
consisting of deprivation of liberty or other rights, or has not been

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required to serve the same by reason of amnesty, pardon,
commutation of sentence or any other reasons.

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 (unless authority is revoked or otherwise withdrawn)
even in the absence of the public prosecutor if he is AUTHORIZED
TO DO SO IN WRITING. (Authorization is given by the Chief of
the Prosecution Office or the Regional State Prosecutor.) The
written authorization must be approved by the court.

Reasons for such authorization:

1. Public prosecutor has a heavy work schedule;

2. There is a lack of public prosecutors.

Prosecution of “PRIVATE CRIMES”

1. Adultery and concubinage – upon a complaint of the offended

spouse only and must be instituted upon both guilty parties,
UNLESS one of them is no longer alive. (The offense may not be
prosecuted if it is shown that the offended party has consented to the
offense or has pardoned the offenders expressly or impliedly.)

2. Seduction, abduction and acts of lasciviousness – upon a

complaint filed by the:
a. offended party (regardless if she be a minor UNLESS incapable
or incompetent of doing so.); or
b. her parents, grandparents or guardian. (for example, if the minor
fails to initiate the prosecution of the offense)
UNLESS expressly pardoned by a and b.

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* If the offended party dies or becomes incapacitated and there is no
known parents, grandparents or guardian, the State shall initiate the
criminal action in her behalf.

Prosecution of RA 7610 (Special protection of children against

child abuse, exploitation and discrimination Act)

1. Offended party;
2. Parents or guardians;
3. Ascendant or collateral relative within the 3 rd degree of
consanguinity;
4. Officer, social worker or rep of a licensed child-caring institution;
5. Officer or social worker of the DSWD;
6. Barangay chairman;
7. At least 3 concerned, responsible citizens where the violation
occurred.

3. Defamation – consists in the imputation of the offenses of

adultery, concubinage, seduction, abduction and acts of
lasciviousness. – upon the complaint filed by the offended party
only.

Complaint and Information

Complaint – a sworn written statement charging a person with an
offense, subscribed by the offended party, any peace officer, or other
public officer charged with the enforcement of the law. Filed in the
name of People of the Philippines and against all persons who
appear to be responsible for the offense.

Information – an accusation in writing charging a person with an

offense subscribed by the prosecutor and filed with the court. (Not
required to be sworn unlike a complaint.) Only a public officer

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described by the ROC as a prosecutor is authorized to subscribe the
information.

Distinction between Complaint and Information

Complaint Information

Must be sworn hence under oath. Requires no oath since the

prosecutor files the information
and is therefore acting under the
oath of his office.
Subscribed by the offended Subscribed only by the
party, any peace officer or other prosecutor.
public officer charged with the
enforcement of the law.

Questioning the insufficiency of the complaint or information

An accused is deemed to have waived his right if he fails to object

upon his arraignment or during trial as regard the insufficiency of
the complaint or information. (As when he voluntarily entered a
plea, when arraigned and participated in the trial.)

Objections as to form – cannot be made first time on appeal.

(should be before arraignment either in a BOP or for the quashal of
the Info. Otherwise, he is deemed to have waived to any formal
defect in the Information.
Date of the commission of the offense

GR: Not necessary to state the precise date the offense was
committed.
XPN: When the date of commission is a material element of the
offense.

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Determination of the nature and character of the crime

It is not determined by the caption or preamble of the information

nor by the specification of the provision of law alleged to have been
violated but what is controlling is the ALLEGATION OF THE
FACTS in the information.

In designating the offense, the following rules must be observed:

1. The designation requires, as a rule, that the name given to the

offense by statute must be stated in the complaint or information (If
the statute gives no designation of the offense, then reference must
instead be made to the section or subsection punishing it;
2. To be included in the complete designation of the offense is an
averment of the acts or omissions constituting the offense;
3. The complaint or information must specify the qualifying and
aggravating circumstances of the offense.

Effect of failure to designate the offense by the state or failure to

mention the provision violated – does not vitiate the information if
the facts alleged clearly recite the facts constituting the crime
charged.

Effect of failure to specify the correct crime – will not bar

conviction of an accused. The character of the crime is not
determined by the caption or preamble of the Info or by the
specification of the provision of law alleged to have been violated. It
is determined by the recital of the ultimate facts and circumstances
in the complaint or information.

How to state the date of the commission of the offense

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GR: It is not necessary to state the precise date the offense was
committed.

XPN: When the precise date the offense was committed is a

material ingredient of the offense.

Duplicity of the offense

GR: The complaint or information must charge ONLY ONE

OFFENSE.

XPN: When a law prescribes a single punishment for various

offenses.

* Failure of the accused to interpose an objection on the ground of

duplicity of the offenses charged constitutes a WAIVER. The
accused must object before trial otherwise, the court may convict
him of as many offenses as are charged and proved, and impose on
him the penalty for each offense.

Venue of Criminal Actions

GR: In the court of the municipality or territory where:

a. the offense was committed; or
b. where any of its essential ingredients occurred

This rule is subject to existing laws:

1. Written defamation – RTC of the province or city where the
libelous article is PRINTED and FIRST PUBLISHED. (Offended
party is a public official or a private individual)

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* Additional venue in case the offended party is a private individual
– RTC of the province where he actually resided at the time of the
commission of the offense.

* Additional venues in case the offended party is a public officer –

(office in Mla – RTC of Manila, outside Mla – RTC of the province
or city where he held office at the time of the commission of the
offense.)

Rule where offense is committed in a train, aircraft or vehicle -

Criminal action shall be instituted and tried in the court of any
municipality or territory where such train, aircraft of vehicle passed
during its trip, including the place of its departure and arrival.
(Applies when the offense is committed in the course of the trip.)
Rule where offense is committed on board a vessel

1. The court of the first port of entry; or

2. of the municipality or territory where the vessel passed during its
voyage. (Applies when the offense is committed during the voyage
of the vessel and is subject to the generally accepted principles of
international law.)

Amendment or Substitution of the Complaint or Information

1. Amendment before plea – GR: may be amended in form or

substance without need for leave of court.

XPN: When leave of court is required

1. The amendment downgrades the nature of the offense charged; or
2. The amendment excludes any accused from the complaint or
information.

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* Aside from LOC, the above amendments, require a motion by the
prosecutor with notice to the offended party.

2. Amendment after plea

a. Formal amendments may only be made under 2 conditions:
1. LOC must be secured;
2. The amendment does not cause prejudice to the rights of the
accused.
2. Substantial amendments not allowed at this stage. (GR)
XPN: if beneficial to the accused.

The following are held to be mere formal amendments:

1. New allegations which relate only to the range of the penalty that
the court might impose in the event of conviction;
2. An amendment which does not charge another offense different or
distinct from that charged in the original one;
3. Additional allegations which do not alter the prosecution’s theory
of the case so as to cause surprise to the accused and affect the form
of defense he has or will assume;
4. An amendment which does not adversely affect any substantial
right of the accused; and
5. Amendment that merely adds specifications to eliminate
vagueness in the information and not to introduce new and material
facts.

Substitution of complaint or information – A complaint may be

substituted if it appears at any time before judgment that a mistake
has been made in charging the proper offense. In such case, the court
shall dismiss the original complaint or information once the new one
charging the proper offense is filed provided the accused will not be
placed in double jeopardy.

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Distinction between amendment and substitution

Amendment Substitution
May involve either formal or Necessarily involves a
substantial changes. substantial change from the
original charge.
Amendment before plea can be Must be with LOC as the
effected without LOC. original information has to be
dismissed.
Formal amendment – no need Another prel. Investigation is
for another preliminary entailed and accused has to plea
investigation and retaking of anew to the new information.
plea of accused.
An amended info efers to the Substitution requires or
same offense charged in the presupposes that the new
orginal info or to an offense information involves a different
which necessarily includes or is offense.
necessarily included in the
original charge. (In case of
substantial amendment after
plea, it cannot be made over the
objection of the accused for if
the original info would be
withdrawn, the accused could
invoke DJ)
Involves the same offense Involves a new offense which is
distinct and different from that
initially charged.
Prosecution of Civil Action (Rule 111)

Implies institution of the civil action with the criminal action

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When a criminal action is instituted, the civil action for the recovery
of the civil liability ARISING FROM THE OFFENSE CHARGED
shall be DEEMED INSTITUTED with the criminal action. (Art.
100, RPC)

Art. 100, RPC – Every person criminally liable for a felony is also
civilly liable.

XPN: When no actual damage results from the offense, such as:
1. Espionage;
2. Violation of neutrality;
3. Flight to enemy country;
4. Crime against popular representation.

* With the implied institution of the civil action in the criminal

action, the two actions are merged into one composite proceeding,
with the criminal action predominating the civil. The law allows the
merger to avoid duplicity of suits.

When a civil action may proceed independently (Independent

civil action and quasi-delicts

1. Art 32, NCC – Freedom of suffrage, religion, liberty of abode,

etc.;
2. Art. 33 – Defamation, fraud, physical injuries
3. Art. 34 – City or municipal police force refuses or fails to render
aid or protection
4. Art. 2176 – Quasi-delict (No pre-existing contractual relation)

These civil actions shall remain SEPARATE, DISTINCT and

INDEPENDENT of any criminal prosecution which may be based
on the same act.

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* Art. 2176 arises from a source of obligation distinct from a crime
while Arts. 32 to 34 are sources of obligations from direct
provisions of law.

* Only the civil liability FLOWING FROM OR ARISING FROM

THE OFFENSE CHARGED is impliedly instituted with the
criminal action.

Consequences of the independent character of actions under

Arts. 32-34 and 2176 of the NCC

1. The right to bring the civil action shall proceed independently of

the criminal action and regardless of the results of the latter.
2. The quantum of evidence required is preponderance of evidence.
3. The right to bring the foregoing actions based on the Civil Code
need not be reserved in the criminal prosecution, since they are not
deemed included therein.
4. The institution or the waiver of he right to file a separate civil
action arising from the crime charged does not extinguish the right
to bring an independent civil action.
5. Even if a civil action is filed separately, the ex delicto civil
liability in the criminal prosecution remains, and the offended party
may subject to the control of the prosecutor still intervene in the
criminal action, in order to protect the remaining civil interest
therein.

When there is no implied institution of the civil action (arising

from the offense charged)
1. When the offended party waives the civil action;

2. When the offended party reserves the right to institute the civil
action separately; (The reservation shall be made before the
prosecution starts presenting its evidence) and

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* No reservation of the civil action in BP 22 – The criminal action in
this case shall be deemed to include the corresponding civil action.
Upon filing of the joint criminal and civil actions, the offended party
shall pay in full the filing fees based on the amount of the check
involved. This amount shall also be considered as the actual
damages claimed. (However, it does not prohibit the waiver and the
institution of the prior civil action prior to the criminal action.)

3. When the offended party institutes the civil action prior to the
criminal action.

Hence it is correct to argue that there being no reservation, waiver

nor prior institution of the civil aspect of the criminal case, it follows
that the civil case arising from grave threats is deemed instituted
with the criminal action and, hence, the private prosecutor may
rightfully intervene to prosecute the civil aspect.

When separate civil action is suspended

* After the criminal action is commenced, the separate civil action

arising therefrom cannot be instituted UNTIL FINAL JUDGMENT
has been entered in the criminal action. (The rule gives preference to
the resolution of the criminal action.)

* Even if the right to institute civil action separately has been

RESERVED, the separate civil action cannot however, be instituted
UNTIL FINAL JUDGMENT has been entered in the criminal action
previously instituted.

* Also if the civil action was commenced before the institution of

the criminal action, the civil action shall be suspended in whatever
stage it may be found before judgment on the merits, once the

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criminal action is filed. The suspension shall last UNTIL FINAL
JUDGMENT is rendered in the criminal action. (The prescriptive
period of the civil action shall be tolled during the pendency of the
criminal action.) (This rule does not apply to independent civil
actions and COVERS ONLY CIVIL ACTIONS ARISING FROM
THE OFFENSE CHARGED.)

Consolidation of the civil action with the criminal action (Civil

action arising from the offense charged)

In case of reservation and prior institution of the civil action, the

offended party may move for the consolidation of the civil action
with the criminal action to avoid delay. The motion should be filed
before judgment on the merits is rendered in the civil action. The
consolidated criminal and civil actions shall be tried and decided
jointly.

* If the civil action was commenced ahead of the criminal action and
evidence had already been adduced in the civil action even before
the institution of the criminal action, the evidence so adduced shall
be deemed automatically reproduced in the criminal action without
prejudice to the right to cross-examine the witnesses presented by
the offended party in the criminal case. The consolidation shall not
likewise prejudice the right of the parties to present additional
evidence.

Counterclaim, cross-claim, third-party claim in a criminal

action

* No counterclaim, cross-claim or third-party complaint may be

filed by the accused in the criminal case, but any cause of action
which could have been the subject thereof may be litigated in a
separate civil action.

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Rules on filing fees

Filing fees apply when damages are being claimed by the offended
party.

* There is no filing fees required for ACTUAL DAMAGES claimed

unless required by the rules. (Ex: BP 22 cases, filing fees shall be
paid based on the amount of the check and shall be paid in full. In
estafa cases, filing fees shall be paid based on the amount involved.)

* Filing fees shall be paid by the offended party upon the filing of
the criminal action in court where he seeks for the enforcement of
the civil liability of the accused by way of moral, nominal,
temperate or exemplary damages but other than actual damages, and
where the amount of such damages is specified in the complaint or
information.

Effect of death of the accused on the civil action

1. If the accused DIES AFTER ARRAIGNMENT and DURING

THE PENDENCY OF THE CRIMINAL ACTION, the civil liability
of the accused arising from the crime is EXTINGUISHED but the
independent civil actions and civil liabilities arising from other
sources of obligation may be continued against the estate or legal
representative of the accused after proper substitution or against the
estate as the case may be.

2. If the accused DIES BEFORE ARRAIGNMENT, the case shall

be dismissed but the offended party may file the proper civil action
against the estate of the deceased.
3. If the accused DIES DURING THE PENDENCY OF HIS
APPEAL WITH THE SC, the criminal liability as well as the civil
liability is TOTALLY EXTINGUISHED.

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Novation

Novation is not one of the grounds prescribed by the RPC for the
extinguishment of criminal liability. In estafa, reimbursement of or
compromise as to the amount misappropriated after the commission
of the crime AFFECTS ONLY THE CIVIL LIABILITY of the
offender, and not his criminal liability.

Effect of acquittal or the extinction of the penal action on the

civil action or civil liability

GR: The extinction of the penal action does not carry with it the
extinction of the civil action.

XPN: However, the civil action based on delict may be deemed

extinguished if there is a finding in a final judgment in the criminal
action that the act or omission from which the civil liability may
arise did not exist.

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

when:
1. The acquittal is based on reasonable doubt as only preponderance
of evidence is required;
2. The court declares that the liability of the accused is only civil;
3. 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.)

Effect of payment of the civil liability – does not extinguish the

criminal liability.

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Effect of judgment in the civil case absolving the defendant – A
final judgment rendered in a civil action absolving a defendant from
civil liability IS NOT A BAR to a criminal action against the
defendant for the same act or omission subject of the civil action.

Concept of prejudicial question

Prejudicial question – an issue involved in a civil case which is

similar or intimately related to the issue raised in the criminal action,
the resolution of which determines whether or not the criminal
action may proceed. To constitute a PQ, the civil action be
INSTITUTED PREVIOUSLY or AHEAD of the criminal action.

- A PQ is that which arises in a case, the resolution of which is a

logical antecedent of the issue involved in that case.

* The reason behind the principle of a PQ is to avoid two conflicting

decisions in the civil case and in the criminal case.
Requisites for a PQ

1. The previously instituted civil action involves an issue similar or

intimately related to the issue raised in the subsequent criminal
action.
2. The resolution of such issue determines whether or not the
criminal action may proceed.

* A petition for the suspension of the criminal action based upon the
pendency of a PQ in a civil action may be filed. (No motu proprio
suspension of the criminal action.)

Preliminary Investigation (Rule 112)

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Preliminary investigation – is an inquiry or a proceeding the
purpose of which is to determine whether there is sufficient ground
to engender a well-founded belief that a crime has bee committed
and the respondent is probably guilty thereof, and should be held for
trial. As jurisprudence puts it, it is not the occasion for the full and
exhaustive display of the parties’ evidence. It is for the presentation
of such evidence only as may engender a well-founded belief that an
offense has been committed and that the accused is probably guilty
thereof.

In the conduct of PI, the prosecutor does not decide whether there is
evidence beyond reasonable doubt of the guilt of the respondent. A
prosecutor merely determines the existence of probable cause, and to
file the corresponding information if he finds it to be so. Probable
cause implies probability of guilt and requires more than bare
suspicion but less than evidence to justify a conviction.

Purpose of PI – to determine whether:

a. A crime has been committed; and
b. There is probable cause to believe that the accused is guilty
thereof.

Ultimate purpose – to secure the innocent against hasty, malicious

and oppressive prosecution and to protect him from an open and
public accusation of a crime, from the trouble, expenses and public
accusation of a crime, from the trouble, expenses and anxiety of a
public trial, and also to protect the State from useless and expensive
prosecutions.

PI is not required by the Constitution. It is not a fundamental right

and is not among those rights guaranteed in the Bill of Rights. It is a
statutory character and may invoked only when specifically created
by statute. When so granted by statute, the right is not a mere formal

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or technical right. It is a substantive right. To deny the claim of the
accused to a PI would be to deprive him the full measure of his right
to due process.

Right to a preliminary investigation; waivable

The right may be waived for failure to invoke the right PRIOR TO
or AT THE TIME of the plea.

PI vs PE

PI PE
Conducted by the prosecutor to Conducted by the judge to
ascertain whether the alleged determine probable cause for the
offender should be held for trial, issuance of a WA.
to be subjected to the expense,
rigors and embarrassment of trial
or if the offender is to be
released.
Executive in nature, part of the Judicial in nature and is lodged
prosecutor’s job. with the judge.
Probable cause in PI – existence of such facts and circumstances as
would lead a person of ordinary caution and prudence to entertain an
honest and strong suspicion that the person charged is guilty of the
crime subject of the investigation. Being based merely on opinion
and reasonable belief, it does not import absolute certainty. It
implies only probability of guilt and requires more than bare
suspicion but less than the evidence which would justify a
conviction.

Kinds of determination of probable cause

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1. Executive determination – one made during PI. It is a function
that properly pertains to the public prosecutor who is given a broad
discretion to determine whether probable cause exists and to charge
those whom he believes to have committed the crime as defined by
law and thus should be held for trial.

2. Judicial determination – one made by the judge to ascertain

whether a WA should be issued against the accused.

Cases requiring preliminary investigation (4,2,1) – for an offense

where the law prescribes a penalty of at least 4 years, 2 months and
1 day without regard to the fine.

When PI is not required even if the offense normally requires PI

– in case of a lawful arrest without warrant
a. In flagrante delicto arrest;
b. Arrest in hot pursuit;
c. Arrest of an escapee from penal establishment or institution;

* A person arrested lawfully without a WA may ask for a

preliminary investigation (before the complaint or information is
filed) but must sign a waiver of the provision of Art. 125 of the RPC
in the presence of his counsel. The PI must be terminated within 15
days from its inception.

* In case of absence of a PI, Motion to Quash is not a remedy but to

move that the case be remanded back to the prosecutor so that the
investigation may be conducted before arraignment.

Procedure for cases not requiring PI

1. First, by filing the complaint directly with the prosecutor;
2. Second, by filing the complaint or information with the MTC.

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Inquest Proceedings

An inquest proceeding is conducted when a person is lawfully

arrested without a WA even also an offense which requires a PI. It is
not a PI but a summary and informal investigation and its purpose is
to determine whether or not the person detained should remain
under custody and then charged in court.

MR – The aggrieved party under current practice is not precluded

from filing a MR within 15 days from receipt of the assailed
resolution. If the MR is denied, the aggrieve party may appeal
within 15 days from the denial of the MR.

Appeals (Petition for Review)

Resolutions of the Chief State Prosecutor, Regional State

Prosecutors and Provincial/City Prosecutor  appeal to the
Secretary of Justice. The appeal shall be taken within 15 days from
receipt of the assailed resolution. One MR is allowed and appeal
shall be taken within 15 days from the denial of the MR or Motion
for Reinvestigation.

Resolution of the Sec of Justice  Petition for certiorari under

Rule 65 (The resolution of the Justice Secretary affirming,
modifying or reversing the resolution of the Investigating Prosecutor
being final.)

Resolution of the Sec of Justice  Office of the President

a. The offense involved is punishable by RP to death;
b. New and material issues are raised which were not previously
presented before the DOJ and were not hence, ruled upon;
c. The prescription of the offense is not due to lapse within 6 months
from notice of the questioned resolution; and

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d. The appeal or petition for review is filed within 30 days from
notice.

When WA is not necessary

1. When a complaint or information has already been filed pursuant

to a lawful warrantless arrest (i.e. if the accused is already under
detention and was lawfully arrested without a warrant and a
complaint or information has been filed pursuant to Sec. 6, Rule
112, When warrant has already been issued by the MTC judge
pursuant to Sec. 5(b) of Rule 112 and the accused is already
detained);
2. When the accused is charged for an offense punishable only by
fine;
3. When the case is subject to the Rules on SP.
Arrest, Search and Seizure

Arrest (Rule 113)

Arrest – the taking of a person into custody in order that he may be

bound to answer for the commission of an offense. A person is
arrested for a specific and definite purpose which is to make him
answer for the commission of an offense. (A person need not be
actually restrained by the person making the arrest. A submission to
the custody of the person making the arrest already constitutes an
arrest.

Requisites for the issuance of a WA

No SW or WA shall issue except upon probable cause to be

determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce,

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particularly describing the place to be searched or the person or
things to be seized.

Arrests without warrant; when lawful

1. When in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense (in
flagrante exception);
2. 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 (arrest
in hot pursuit exception); and
3. 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)
Rights of a person arrested

The rights of a person arrested, detained or under custodial

investigation are spelled out by RA 7438:
1. The right to be assisted by counsel at all times (independent and
competent);
2. The right to remain silent;
3. The right to be informed of the above rights; and
4. The right to be visited by the immediate members of his family,
by his counsel, or by any non-governmental organization, national
or international.

* The meaning of custodial investigation include the practice of

issuing an invitation to a person who is investigated in connection
with an offense he is suspected to have committed, without

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prejudice to the liability of the inviting officer for any violation of
law.

* Any irregularity attending the arrest of an accused depriving the

trial court of jurisdiction over his person, should be raised in a
Motion to Quash at any time before entering his plea, and failure to
timely raise this objection amounts to a waiver of such irregularity,
resulting in concomitant submission to the trial court’s jurisdiction
over his person. (Eugenio v. People)

Persons not subject to arrest

1. Art. VI, 1987 Constitution – A senator or member of the HR

shall, in ALL OFFENSES PUNISHABLE BY NOT MORE THAN
6 YEARS imprisonment, be privileged from arrest WHILE THE
CONGRESS IS 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. RA 75 prohibits the arrest of duly accredited ambassadors, public

ministers of a foreign country, their duly registered domestics,
subject to the principle of reciprocity.

Searches and Seizures (Rule 126)

Nature of a SW

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A SW is an order in writing issued in the name of the PP, signed by
a judge and directed to a peace officer, commanding him to search
for personal property described therein and bring it before the court.

It is a legal process which has been likened to a writ of discovery

employed by the state to procure relevant evidence of a crime. It is
in the nature of a criminal process restricted to cases of public
prosecutions. It is a police weapon issued under the police power.
Issuance is exclusively vested with the trial judges in the exercise of
their judicial functions.

The Constitutional provision

Sec. 2, Art III provides…The right of the people to be secure in their

persons, houses, papers and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be
inviolable, and no SW or WA shall issue EXCEPT UPON
PROBABLE CAUSE to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized. Any evidence
obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

Application for a SW; Where to file

GR: An application for a SW shall be filed before any court within

whose territorial jurisdiction a crime was committed.

XPNS:

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1. 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.
2. 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 require compelling
reasons stated in the application.
3. The application shall be made only in the court where the criminal
action is pending, if the criminal action has already been filed.

Requisites for the issuance of a SW

1. There must be probable cause in connection with one specific

offense;
2. The presence of probable cause is to be determined by the judge
personally;
3. The determination by the judge must be made after an
examination under oath or affirmation of the complainant and the
witnesses he may produce;
4. The warrant must specifically describe the place to be searched
and the things to be seized which may be anywhere in the
Philippines.

Meaning of probable cause for SW – such facts and circumstances

which would lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the objects sought in
connection with the offense are in the place to be searched.

Particular description of the items to be seized

The provision requiring a particular description of the items or

things to be seized is designed to prevent general searches and avoid
the seizure of a thing not described in the warrant and also so

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nothing is to be left to the discretion of the officer executing the
warrant. Warrants which do not describe the things to be seized with
the required particularity have been traditionally called GENERAL
WARRANTS.
* A SW shall be valid for 10 days from its date. Thereafter, it shall
be void.

* The search shall be made in the presence of the lawful occupant of

the house, room or any other premises, or any member of the lawful
occupant’s family. In the absence of the latter, the search shall be
made in the presence of 2 witnesses of sufficient age and discretion
residing in the same locality.

Rule if the officer is refused admittance; “Knock and announce

rule”

Being armed with a warrant does not justify outright entry or

barging into the place to be searched. An officer should knock,
introduce himself and announce his purpose and only in exceptional
cases may forego the same like when his safety is in danger of being
jeopardized or when evidence is about to be destroyed.

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 ff
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.

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Where to file a MTQ a SW or to suppress evidence

It may be filed and acted upon ONLY BY THE COURT where the
action has been instituted not with the court which issued the SW. If
no criminal action yet, the motion may be filed in and resolved by
the court that issued the SW. If said court fails to resolve the motion
and subsequently a case is filed in another court, the latter may
resolve said motion.

Exceptions to the search warrant requirement

1. Warrantless search incidental to a lawful arrest;

2. Seizure of evidence in plain view;
Elements of the plain view exception:
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;
d. Plain view justified mere seizure of evidence without further
search.
3. Search of a moving vehicle – highly regulated by the government,
the vehicle’s inherent mobility reduces expectation of privacy
especially when its transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and frisk or Terry searches;
7. Exigent and emergency circumstances;

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8. Search of vessels and aircraft;
9. Inspection of buildings and other premises for the enforcement of
fire, sanitary and building regulations.

Search incidental to a lawful arrest – the application of this rule

presupposes that the person searched was previously arrested
lawfully. The arrest must precede the search; generally, the process
cannot be reversed. Nevertheless, a search substantially
contemporaneous with an arrest can precede the arrest if the police
have probable cause to make the arrest at the outset of the search.

Parameters of a search incident to a lawful arrest “Immediate

possession and control rule”

The provision limits the search to the ff:

a. For dangerous weapons;
b. For anything which may have been used in the commission of an
offense;
c. For anything which constitute proof in the commission of an
offense.

Search of moving vehicles – justified on the ground that it is not

practicable to secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must
be sought.

Check points

Valmonte v. De Villa – Check points are not illegal per se. Under
exceptional circumstances, as where the survival of organized
government is on the balance, or where the lives and safety of the
people are in grave peril, checkpoints may be allowed and installed
by the government. The inspection must be limited to a visual

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search, in order not to be regarded as violative of an individual right
against unreasonable search.

Buy bust operations; Warrant not needed

It is a form of entrapment legally employed by peace officers as an

effective way of apprehending drug dealers in the act of committing
an offense. No SW or WA is need in a buy-bust operation because
the accused is caught in flagrante delicto. It catches the violator in
flagrante delicto and the police officers conducting the operation are
not only authorized but duty-bound to apprehend the violator and to
search him for anything that may have been part of or used in the
commission of the crime.

Entrapment and instigation

Entrapment – is the employment of such ways and means for the

purpose of trapping or capturing a lawbreaker.
Instigation – the means by which the accused is lured into the
commission of the offense charged in order to prosecute him. Buy-
bust operation is one form of entrapment. It is legal and has been
proved to be an effective method of apprehending drug peddlers,
provided due regard to constitutional and legal safeguards is
undertaken.

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 of plain view doctrine

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1. 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;
2. The discovery of the evidence in plain view is inadvertent; and
3. It is immediately apparent to the officer that the item he observes
may be evidence of a crime contraband or otherwise subject to
seizure.

Terry searches or stop and frisk

Two parts of the terry doctrine:

1. The stop – a valid stop by an officer requires that he has a

reasonable and articulable belief that criminal activity has happened
or is about to happen.
2. The frisk – made after the stop must be done because of a
reasonable belief that the person stopped is in possession of a
weapon that will pose a danger to the officer and others. The frisk
must be a mere pat down outside the person’s outer garment and not
unreasonably intrusive. Terry v, Ohio
Consented searches – The consent to a warrantless search must be
VOLUNTARY. It must be unequivocal, specific and intelligently
given, uncontaminated by any duress or coercion.

Requisites for valid waiver against obtrusive searches:

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 has an actual intention to relinquish the right.

Effect of an illegal search and seizure; Fruit of the poisonous

tree doctrine

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* Inadmissible in evidence and the SW may be quashed through the
proper motion as in a motion to quash the SW. Also when evidence
is illegally obtained, a motion to suppress the evidence is in order.

Exclusionary Rule – prevents, upon proper motion or objection, the

admission of evidence illegally obtained. (Fruit of the poisonous
tree)

Authority of the Executive Judge and Vice Executive Judge re:

SW in Manila and QC

AM No. 99-20-09-SC dated January 25, 2000 authorizes the EJ of

the RTC of Manila and QC to ACT ON ALL APPLICATIONS OF
SW involving HEINOUS CRIMES, ILLEGAL GAMBLING,
DANGEROUS DRUGS, ILLEGAL POSSESSION OF FIREARMS
on application filed by the PNP, NBI, PRESIDENTIAL ANTI-
ORGANIZED CRIME TASK FORCE (PAOC-TF), AND
REACTION AGAINST CRIME TASK FORCE (REACT-TF)

The warrants issued may be served in places outside the territorial

jurisdiction of said courts.

Bail (Rule 114)

Bail – is the security give for the release of a person in custody of

the law, furnished by him or a bondsman, to guarantee his
appearance before any court as required under certain specified
conditions.

Purpose of bail – to guarantee the appearance of a person before

any court where so required.

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* Constitutional right, personal in nature and is therefore, waivable.
This right springs from the presumption of innocence.

Constitutional bases of the right to bail

All persons except those charged with offenses punishable by

reclusion perpetua when evidence of guilt is strong, shall, before
conviction be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.

* Does not only involve the right of the accused to temporary liberty
but likewise the right of the State to protect the people and the peace
of the community from dangerous elements.

Exceptions to the right to bail

1. Not available in the military. The right to a speedy trial is given

more emphasis in the military where the right to bail does not exist.

2. Bail in extradition proceedings – sui generis and not criminal in

nature.

Exception to the “no bail rule” in extradition proceedings (Only

upon a clear and convincing showing that:

a. Once granted bail, the applicant will not be a flight risk or a

danger to the community;
b. 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.

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3. Bail in deportation proceedings
GR: Aliens have no inherent right to bail.
XPN: Unless expressly granted by law.

The power and discretion to grant bail in deportation proceedings

conferred upon the Commissioner of Immigration is merely
permissive and not mandatory.

GR: The applicant for bail must be in custody not at large. A

freeman therefore is not entitled to bail. A fugitive therefore, may
not apply for bail unless he gives himself up first so he may be
placed under the custody of law.

XPN: Bail to secure the appearance of a material witness. (May be

ordered to post bail even if he is not under detention for the purpose
of guaranteeing his appearance.)

Bail for those not yet charged – may apply for bail with any court
in the province, city or municipality where he is held.
Forms of bail

1. Corporate surety – furnished by a corporation.

2. Property bond – constituted as lien on real property.
3. Cash deposit – bail in form of cash.
4. Recognizance – obligation of record entered in court on condition
of accused appearance during trial. (A particular act.)

When release on recognizance may be ordered by the court

1.When the offense charged is for violation of an ordinance, a light

felony, or a criminal offense, the imposable penalty of which does

35
not exceed 6 months imprisonment and/or 2,000 fine, under the
circumstances provided in RA 6036.

2. 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 ISL or any modifying circumstance, in which
case, the court may allow his release on his own recognizance, or on
a reduced bail, at the discretion of the court.

3. 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.

4. 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 PD 603, as amended.

5. 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.

Duration of the bail

1. Shall be effective upon approval and unless cancelled, shall

remain in force at all stages of the case until promulgation of
judgment of the RTC, irrespective of whether the case was
originally filed in or appealed to it.

2. The bail bond posted by the accused can only be used during the
15-day period to appeal not during the entire period of appeal.

When bail is not required

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1. Generally, bail is not required when the law or the ROC 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 trial or the proceedings on appeal. Also if maximum
penalty is destierro, he shall be released after 30 days of preventive
imprisonment.

3. In cases filed with the MTC or MCTC for an offense punishable

by imprisonment of less than 4 years, 2 months and 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 WA. Since no
arrest is made, bail is not required.

4. Under Sec. 1 of RA 6036, bail shall not be required if a person is

charged with a violation of a municipal or city ordinance, a light
felony and/or a criminal offense, the prescribed penalty for which is
not higher than 6 months imprisonment or a fine of 2,000 or both
where it is established that he is unable to post the required cash or
bail bond.

Exceptions to No. 4

a. When he is caught committing the offense in flagrante;

b. When he confesses to the commission of the offense unless
repudiated alleging force or intimidation in the extraction of his
confession;
c. When he is found to have previously escaped from legal
confinement, evaded sentence or jumped bail;
d. When he is found to have previously violated the provisions of
Sec. 2 of the law;

37
e. When he is found to be a recidivist or a habitual delinquent or has
been previously convicted for an offense to which the law or
ordinance attaches an equal or greater penalty or for two or more
offenses to which it attaches a lighter penalty;
f. When he commits the offense while on parole or under
conditional pardon; and
g. When the accused has previously been pardoned by the municipal
or city mayor for violation of municipal or city ordinance for at least
2 times.

When bail is not allowed

1. A person charged with a capital offense or an offense punishable

by RP or LI shall not be 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 is not allowed after the accused has commenced to serve
sentence.

When Bail is a matter of right

a. Before conviction by the MeTC, MTC, MTCC, MCTC;

b. After conviction by the courts mentioned in a;

c. Before conviction by the RTC of an offense NOT PUNISHABLE

by death, RP or LI.

Remedy when bail is denied – Petition for Certiorari under rule 65.

When Bail is a matter of discretion

38
When the accused has been convicted in the RTC of an offense NOT
PUNISHABLE by death, RP or LI.

* If the grant of bail becomes discretionary when the accused has

been convicted in the RTC of an offense not punishable by death,
RP or LI, it follows that if the penalty imposed is death, RP or LI,
bail should be denied because this means that the reason for the
conviction is that the evidence of guilt against him is strong.

* If the decision of the RTC convicting the accused changed the

nature of the offense from non-bailable to bailable, the application
for bail can only be filed with and resolved by the appellate court.

Hearing of application for bail in offenses punishable by death,

RP, LI; Burden of proof in bail application

In the hearing, the prosecution has the burden of showing that the
evidence of guilt is strong. Bail in this type of offense is not a matter
of right.

Summary hearing – such brief and speedy method of receiving and

considering the evidence of guilt as is practicable and consistent
with the purpose of hearing which is merely to determine the weight
of evidence for the purposes of bail. Without hearing, the bail which
may be granted to the accused would be arbitrary and without basis.
(Indispensable – Mandatory in order to give the prosecution
reasonable opportunity to oppose the application by proving that the
evidence of guilt is strong.)

Where application or petition for bail may be filed

GR: May be filed with the court where the case is pending.

39
XPN: If the judge thereof is absent or unavailable, may be filed with
any RTC judge, Metropolitan Trial Court judge, Municipal Trial
Court judge, or Municipal Circuit Trial Court judge in the province,
city or municipality.

Cancellation of the bail; Remedy

1. Cancellation by application of the bondsmen – bail may be

cancelled upon application of the bondsmen with due notice to the
prosecutor upon surrender of the accused, or proof of his death.

2. Automatic cancellation – upon acquittal of the accused, dismissal

of the case or execution of the judgment of conviction.

3. Cancellation of bail where the penalty imposed by the trial court

is imprisonment exceeding 6 years if any of the grounds in the said
section is present as when the circumstances indicate the probability
of flight.

Remedy against the trial court’s order cancelling the bail – filing
with the CA a motion to review the said order in the same regular
appeal proceedings which the appellant himself initiated, such
motion being an incident to his appeal. (Certiorari is proscribed
constitutes forum shopping and contravenes the rule against
multiplicity of suits.)

* Application or admission of the accused to bail shall not bar him

from challenging both the validity of his arrest or the legality of the
warrant issued therefore, provided that he raises them before
entering his plea. It shall not likewise bar the accused from assailing
the regularity or questioning the absence of a prel. Investigation of

40
the charge against him provided the same is raised before he enters
his plea.

Rights of the Accused (Rule 115)

1. The right to be presumed innocent until the contrary is proved

beyond reasonable doubt;
2. The right to be informed of the nature and cause of accusation
against him;
3. The right to be present and defend in person and by counsel at
every stage of the proceedings, from arraignment to promulgation of
judgment.
* However, he may WAIVE HIS PRESENCE AT THE TRIAL
pursuant to the stipulations set forth in his bail, UNLESS HIS
PRESENCE IS SPECIFICALLY ORDERED by the court for
purposes of identification.

Waiver as to his right to be present:

a. Absence of the accused without justifiable cause;
b. An accused under custody escapes, he shall be deemed to have
waived his right to be present on all subsequent trial dates until
custody over him is regained.

4. the right to testify as a witness in his own behalf but subject to

cross-examination on matters covered by direct examination. His
silence shall not in any manner prejudice him.
5. The right to be exempt from being compelled to be a witness
against himself;
6. The right to confront and cross-examine the witnesses against him
at the trial.
7. The right to have compulsory process issued to secure attendance
of witnesses and production of other evidence in his behalf;

41
8. The right to have speedy, impartial and public trial;
9. The right to appeal in all cases allowed and in the manner
prescribed by law.

Presumption of innocence

An accused in criminal prosecutions is to be presumed innocent

until his guilt is proven beyond reasonable doubt. This constitutional
guarantee cannot be overthrown unless the prosecution has
established by such quantum of evidence sufficient to overcome this
presumption of innocence and prove that the crime was committed
and that the accused is guilty thereof. This presumption prevails
over the presumption of regularity in the performance of official
duty.

GR: The testimony of the police officers who apprehended the

accused is usually accorded full faith and credit because of the
presumption that they have performed their duties regularly.

XPN: However, when the performance of their duties is tainted with

irregularities, such presumption is effectively destroyed. This
presumption cannot prevail over the constitutional right of the
accused to be presumed innocent and cannot by itself constitute
proof of guilt beyond reasonable doubt.

Proof beyond reasonable doubt

Presumption of innocence ends when it is overcome in a final

conviction. Quantum of evidence to overcome such presumption is
PROOF BEYOND REASONABLE DOUBT (Indispensable).
Without such quantum, the accused is entitled to acquittal. (The
prosecution is not required to show the guilt of the accused with

42
absolute certainty. Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced mind.)

Reasonable doubt – that doubt engendered by an investigation of

the whole proof and an inability after such investigation to let the
mind rest each upon the certainty of guilt.

The equipoise rule

The application of the rule is triggered by a situation where the court
is faced with conflicting versions of the prosecution and the defense
and where the evidence, facts and circumstances are capable of two
or more explanations, one of which is consistent with the innocence
of the accused and the other consistent with his guilt. This situation
cannot fulfill the test of moral certainty and is not sufficient to
support a conviction. The court will have to resort to the equipoise
rule.

The equipoise rule provides that where the evidence in a criminal

case is EVENLY BALANCED the constitutional presumption of
innocence tilts the scales in favor of the accused.

Right to be informed of the nature and cause of accusation

It is a basic constitutional right of the accused persons to be

informed of the nature and cause of accusation against them. It
would be a denial of accused-appellant’s basic right to due process if
he is charged with simple rape and consequently convicted with
certain qualifying circumstances which were not alleged in the
information. (People v. Legarde)

In order to inform the accused of the nature of the accusation against

him, it is necessary for the complaint or information to contain
matters required by the statute or the ROC, to wit:

43
1. Name of accused;
2. Name of offended party;
3 Acts or omissions constituting the offense and state the
designation of the offense;
4. The qualifying and aggravating circumstances;
5. To allege that the crime was committed or its essential ingredients
occurred at some place within the jurisdiction of the court;
6. The date of the commission of the acts or omission constituting
the offense;

7. 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.

Right to counsel of the accused and of persons arrested, detained

or under custodial investigation

In criminal cases, the right of an accused person to be assisted by a

member of the bar is immutable. Otherwise, there would be a grave
denial of due process. Thus, even if the judgment had become final
and executory, it may still be recalled and the accused afforded the
opportunity to be heard by himself and counsel.

The right is not only available during trial but also during custodial
investigation.

The purpose of providing counsel to a person under custodial

investigation is to curb the uncivilized practice of extracting a
confession. It’s purpose it to curb the police-state practice of
extracting a confession that leads suspects to make self-
incriminating statements.

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* Failure to inform the suspect of his right to counsel during
custodial investigation attains significance only if the person under
investigation makes a confession in writing without aid of counsel
and which is then sought to be admitted against the accused during
trial. In such case, the tainted confession obtained in violation is
inadmissible in evidence against the accused. (People v. Rapeza)

* A police line up is not part of the custodial investigation since the

accused at that stage is not yet being investigated.

Competent and independent counsel – that he is willing to fully

safeguard the constitutional rights of the accused. As far as
reasonably possible, the choice of the individual undergoing
questioning.

* The right to a counsel may be waived but to insure that the waiver
is voluntary and intelligent, the waiver must be IN WRITING AND
IN THE PRESENCE OF THE COUNSEL OF THE ACCUSED.

* The right to counsel has been written in our Constitution in order

to prevent the use of duress and other undue influence extracting
confessions from a suspect in a crime.

* When an accused did not enjoy an effective and vigilant counsel

before he extrajudicially admitted his guilt, the extrajudicial
confession cannot be given any probative value. It is deemed an
uncounseled confession and therefore inadmissible in evidence.

Right to counsel in administrative cases – assistance of counsel is

not indispensable in administrative proceedings. A party may or
may not be assisted by counsel irrespective of the nature of the
charges and of respondent’s capacity to represent himself.

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Rights of persons under custodial investigation (The Miranda
Doctrine)

1. The right to be informed of his right to remain silent, that any

information he would give could be used against him;

2. The right to have competent and independent counsel preferably

of his own choice. If he cannot afford the services of counsel, he
must be provided with one;
3. These rights cannot be waived except in writing and in the
presence of counsel.

* Admissions under custodial investigation made without the

assistance of counsel are barred as evidence.

Requisites for an extrajudicial confession to be valid

1. Voluntary;
2. Made with assistance of counsel;
3. Express;
4. In writing.
Right to speedy trial; speedy disposition of cases

This right is explicitly guaranteed under the Constitution, reinforced

and echoed in Rule 115 of the ROC.

Defined by the court as one free from vexatious, capricious and

oppressive delays, its purpose being to assure that an innocent
person may be free from anxiety and expense of a court litigation, or
if otherwise, of having his guilt determined within the shortest
possible time with the presentation and consideration of whatsoever
legitimate defense he may interpose.

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* The right however does not preclude justifiable postponements
and delay when warranted by the situation.

* The right to speedy disposition of cases is not limited to the

accused in criminal proceedings but extends to all parties in all
cases, including civil and administrative cases, and in all
proceedings, including judicial and quasi-judicial hearings.

Remedy for a violation of the right to speedy trial – (File a

motion nolle prosequi) Dismissal for failure to prosecute.
Equivalent to an acquittal and double jeopardy may attach.

Guidelines to determine violation of the right to speedy trial and

speedy disposition of cases; Balancing test

1. Length of the delay (Triggering mechanism, until there is some

delay which is presumptively prejudicial, there is no necessity for
inquiry into the other facts that go into balance.);
2. The reasons for the delay;
3. The assertion or failure to assert such right by the accused;
4. The prejudice caused by the delay.

Approaches to speedy trial

Two rigid approaches on speedy trial, as ways of eliminating some

of the uncertainty which courts experience protecting the right:

1. Fixed-time period – which holds the view that the Constitution

requires a criminal defendant to be offered a trial within a specified
time period. (Rejected – no constitutional basis)
2. 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 approach, a prior

47
demand is a necessary condition to the consideration of the speedy
trial right. (Rejected – insensitive to a right which is deemed
fundamental.)

The court instead adopted the BALANCING TEST in which the

conduct of both the prosecution and defendant are weighed. The test
compels the courts to approach speedy trial cases on an AD HOC
basis where courts should assess in determining whether a particular
defendant has been deprived of his right such as the length of delay,
the reason for the delay, the defendant’s assertion of his right, and
prejudice to the defendant.

The privilege against self incrimination

The privilege is expressed in the ff provisions:

1. No person shall be compelled to be a witness against himself.
(Sec. 17, Art. III, Philippine Constitution)

2. In all criminal prosecutions, the accused shall be entitled to the

following rights x x x (e) to be exempt from being compelled to be a
witness against himself. (Sec. 1(e), Rulee 115, ROC)

The privilege is intended to prevent the State, with all its coercive
powers, from extracting from the suspect testimony that may convict
him and to avoid a person subject to such compulsion to perjure
himself for his own protection.

The privilege rests upon the principle that “forcing a man to be a

witness against himself is at war with the fundamentals of a
republican government,” that it may suit the purposes of despotic
power but it cannot abide the pure atmosphere of political liberty
and personal freedom. x x x

48
* the court may not extract from a defendant’s own lips and against
his will an admission of his guilt. Because, it is his right to forego
testimony, to remain silent, unless he chooses to take the witness
stand – with undiluted, unfettered exercise of his own free, genuine
will.

* The right against self-incrimination is NOT SELF EXECUTING

or automatically operational. It must be claimed. If not claimed by
or in behalf of the witness, the protection does not come into play. It
follows that the right MAY BE WAIVED expressly or impliedly as
by failure to claim it at the appropriate time.

* The privilege applies only to natural persons as the privilege is a

personal one.

* The privilege protects a person from TESTIMONIAL

COMPULSION OR EVIDENCE OF COMMUNICATIVE
NATURE ONLY.

* The privilege offers NO PROTECTION AGAINST

COMPULSION TO SUBMIT TO:
1. Fingerprinting;
2. Photography;
3. Measurements;
4. To write or speak for identification;
5. To appear in court;
6. To stand;
7. To assume a stance;
8. To walk;
9. To make a particular gesture.
None of these activities becomes testimonial within the scope of the
privilege.

49
* Forced re-enactment, uncounselled or coerced confessions come
within the ban against self-incrimination. Thus, all evidence are
deemed to be in violation of the Constitution and hence,
INCOMPETENT EVIDENCE.

Compulsion defined – as it is understood does not necessarily

connote the use of violence. It may be the product of unintentional
statements. Pressure which operates to overbear his will, disable him
from making a free and rational choice, or impair his capacity for
rational judgment would be sufficient. So is moral coercion tending
to force testimony from the unwilling lips of the defendant.

* A mere writing exemplar, in contrast with the content of what is

written, is an identifying physical character outside the protection.

* The privilege is not limited precisely to testimony, but extends to

the giving or furnishing of evidence. Writing is not a purely
mechanical act because it requires the application of intelligence and
attention. However, not every act of affixing one’s signature is
within the protection of the privilege against self-incrimination.
(signature was merely to authenticate the envelopes as the ones
seized.) Marcelo v. Sandiganbayan

Witness – may be compelled to take the witness stand and claim the
privilege as each question requiring an incriminating answer is shot
at him. Hw may refuse to answer any incriminating question.
Objection must be made after the incriminating question is asked.

Accused – may altogether refuse to take the witness stand and may
refuse to answer any and all questions.

* The privilege can be asserted in any proceeding, civil or criminal,

administrative or judicial, investigatory or adjudicatory.

50
The privilege will not apply when witness is given immunity
from prosecution

1. Transactional immunity (Blanket or total immunity) – a

witness can no longer be prosecuted for any offense whatsoever
arising out of the act or transaction to which the testimony relates.
(Completely protects the witness from future prosecution for crimes
related to his or her testimony.)

2. Use-and-derivative-use immunity – a witness is only assured

that his or her particular testimony and evidence derived from it will
not be used against him or her in a subsequent prosecution.

Immunity statutes

1. The State may not be sued without its consent. (Sec 3, Art XVI,
Philippine Constitution)

2. Parliamentary immunities – a senator or any member of the HR

shall, in all offenses punishable by not more than 6 years
imprisonment, be privileged from arrest while the CONgress is in
session. No member shall be questioned nor be held liable in any
other place for any speech or debate in the Congress or in any
committee thereof.

3. One among the powers and functions of the Commission on

Human Rights is to grant immunity from prosecution to any person
whose testimony or whose possession of documents or other

51
evidence is necessary or convenient to determine the truth in any
investigation conducted by it or under its authority.
4. The Ombudsman may grant immunity from criminal prosecution
to any person whose testimony or whose possession and production
of documents or other evidence may be necessary to determine the
truth in any hearing, inquiry or proceeding being conducted by the
Ombudsman or under his authority, in the performance or in the
furtherance of its constitutional functions and statutory objectives.
The immunity granted under this shall not exempt the witness from
criminal prosecution for perjury or false testimony nor shall he be
exempt from demotion or removal from office.

5. PCGG is granted the authority to grant immunity to informants or

witnesses. (to any person who provides information or testifies in
any investigation conducted by such Commission, to establish the
unlawful manner by which any respondent, defendant or accused
has accumulated the property or properties in question in any case
where such information or testimony is necessary to ascertain or
prove his guilt or civil liability.

6. RA 6981 also known as Witness Protection Program, Security

and Benefit Act. – discharge of an accused to become a State
Witness. Said witness is entitled to immunity from criminal
prosecution for the offense or offenses in which his testimony will
be given or used and all the rights and benefits provided under Sec.
8 of the law.

7. Immunity from prosecution of informants under PD 749.

The right to defend himself; right to be heard

52
The accused is accorded the right to defend himself either in person
or by counsel. As a consequence of such right, he has the right to be
present at the trial at every stage of the proceedings from
arraignment to the promulgation of the judgment.

The accused may be allowed by the court to defend himself in

person when it sufficiently appears to the court that he can properly
protect his rights without the assistance of counsel.

* The accused has the right to waive his presence at the trial but he
shall be required to be at the trial, if his presence is specifically
ordered by the court for purposes of identification. (The waiver of
the right of the accused to be present at the trial may be inferred
from his absence without justifiable cause provided he had prior
notice of the said trial.)

* When the accused filed a motion for leave to file a demurrer to

evidence which was granted by the trial court, and the demurrer was
eventually denied, the trial court should give the accused the
opportunity to present his evidence. T deny him will amount to
miscarriage of justice and procedurally unfair on his part.

The right to testify as a witness

- subject to cross-examination on matters covered by the direct

examination. (The questions during cross is limited to the matters
covered by the direct examination.)

Cross examination of an ordinary witness is not limited to matters

stated in the direct examination or those connected with the matters
stated in the direct examination but the cross examiner is given
sufficient fullness and freedom to ask questions that would test the

53
accuracy and truthfulness of the witness, his freedom from interest
or bias, or the reverse. (as long as the question has relevance to the
issues of the case.)

* If the accused does not want to testify in his behalf and chose to
remain silent, his silence shall not in any manner prejudice him.

The right to confront and cross-examine the witnesses against

him

- basic constitutional rights embodied in Sec. 14, Art. III of the

Philippine Constitution. (part of due process)

Cross examination is essential to test his or her accuracy, expose

falsehoods or half-truths, and demonstrates inconsistencies in
substantial matters which create reasonable doubt as to the guilt of
the accused and thus give substance to the constitutional right of the
accused to confront the witnesses against him.

* The right is a personal one and which may be waived expressly or

impliedly by conduct amounting to a renunciation of the right of
cross-examination. (If a party fails to avail himself of such right, the
testimony given on direct examination of the witness will be
received and allowed to remain in the record.

* The right of confrontation DOES NOT APPLY in a preliminary

investigation. The parties may however submit to the investigating
officer questions which may be asked to the party or witness
concerned.

* If the adverse party is deprived of the right to cross examine the

persons who executed the affidavits, said affidavits are generally
REJECTED FOR BEING HEARSAY.

54
* In the absence of a cross-examination, the direct examination of
the witness should be expunged from the records. If the witness is a
lone witness, the trial court would not have a basis to deny a
demurrer to evidence.

Right to compulsory process

This right may be invoked by the accused to secure the attendance of

witnesses and the production of witnesses in his behalf. This is also
a constitutional right embodied in Sec. 14(2), Art. III of the
Philippine Constitution.

In connection with this right, the accused may move the court for the
issuance of a SUBPOENA AD TESTIFICANDUM or a
SUBPOENA DUCE TECUM pursuant to the provisions of Rule 21
of the ROC.

In case of the unjustified failure of the witness to comply, the court

or judge issuing the subpoena, upon proof of the service of such
subpoena and proof of his failure to attend, may issue a warrant for
his arrest.

Right to appeal

In all criminal prosecutions, the accused shall have the right to

appeal in the manner prescribed by law. It opens the entire case for
review and the appellate court may correct even unassigned errors.
(In contrast with civil cases wherein unassigned errors will not be
considered by the appellate court unless such errors affects the
jurisdiction of the court, affects validity of the judgment appealed
from or the error is closely related to or dependent upon the assigned

55
error properly argued in the brief, or when the error is simply plain
or clerical.

* The trial court’s findings are accorded respect, if not conclusive

effect, UNLESS there appears in the record some facts or
circumstances of weight and influence which have been overlooked
and, if considered, would affect the result. (Generally, the findings
of the trial court relative to the credibility of the witness are
normally respected and not disturbed on appeal.)

Arraignment and Plea (Rule 116)

Arraignment – is that stage where, in the mode and manner

required by the Rules, an accused, for the first time, is granted the
opportunity to know the precise charge that confronts him. It is the
formal mode and manner of implementing the constitutional right of
an accused to be informed of the nature and cause of the accusation
against him. (It is an INDISPENSABLE REQUIREMENT OF DUE
PROCESS. Without prior arraignment, the accused cannot invoke
double jeopardy and cannot be tried in absentia.)

Duty of the court before arraignment – to inform accused of his

right to counsel, and ask him if he desires to have one and must
assign a counsel de officio to defend him unless the accused is
allowed to defend himself in person or has employed a counsel of
his own choice. (Such DUTY is MANDATORY.)

Options of the accused before arraignment and plea

1. Motion for Bill of Particulars

2. Motion for Suspension of arraignment
When suspension of arraignment may be asked:

56
a. 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.
b. There exists a prejudicial question.
c. There is a petition for review of the resolution of the prosecutor
which is pending at either DOJ or Office of the President. (Period of
suspension shall not exceed 60 days counted from the filing of the
petition with the reviewing office.
3. Motion to Quash – at any time before entering his plea, the
accused may move to quash the complaint or information on any of
the grounds provided under Sec. 3, Rule 117, in relation to Sec. 1,
Rule 117.
4. 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. (The arraignment of the accused
constitutes a waiver of the right to preliminary investigation or
reinvestigation. Such waiver is tantamount to a finding of probable
cause.)

Arraignment under an amended information; substituted

information

Substantial amendment – arraignment on the amended information

is mandatory. (Right to be informed of the accusation against him.)

Formal amendment – no need for another preliminary

investigation ad the retaking of the plea of the accused.

In substitution of information, another preliminary investigation is

entailed and the accused has to plead a new to the new information.

How arraignment is made – in open court by the judge or clerk by

furnishing the accused with a copy of the complaint or information,

57
reading the same in the language or dialect known to him, and
asking him whether he pleads guilty or not guilty. It shall be held
within 30 days from the filing of the information, or from the date
the accused has appeared before the justice, judge or court in which
the charge is pending, whichever date last occurs. If the plea is not
guilty, the accused shall have at least 15 days to prepare for trial.
(Speedy Trial Act of 1998, RA 8493)

Arraignment is the formal mode and manner of implementing the

constitutional right of an accused to be informed of the nature and
cause of the accusation against him.
Presence of the offended party during arraignment

It is required for the following purposes:

1. Plea bargaining
2. Determination of civil liability;
3. Other matters requiring his presence.

When a plea of guilty shall be entered

Aside from an actual plea of not guilty, a plea of not guilty shall be
entered for the accused if:
1. He refuses to plead;
2. He makes a conditional plea;
3. When he pleads guilty but presents exculpatory evidence in which
case the guilty plea shall be deemed withdrawn and a plea of not
guilty shall be entered.

* The accused by entering a plea of not guilty, submits himself to

the jurisdiction of the trial court, thereby curing any defect in his
arrest.

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* Plea of guilty is a judicial confession. A judicial confession of
guilt embraces all the material facts alleged in the information,
including all the aggravating circumstances listed therein.

Plea of guilty to a lesser offense; plea bargaining

Plea bargaining – a process whereby the accused and the prosecution

work a mutually satisfactory disposition of the case subject to court
approval. It usually involves the defendant’s pleading guilty to a
lesser offense or to only one of the counts of a multi-count
indictment in return for a lighter sentence than that for the graver
charge.
Requisites for a plea of guilty to a lesser offense
(Allowed not only during arraignment but also after arraignment
(before trial) and after his prior plea is withdrawn.) – Not considered
mitigating when done after arraignment.

1. The lesser offense is necessarily included in the offense charged;

and
2. 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

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 the voluntariness of
the plea, and whether or not the accused has full comprehension of
the consequences of his plea;

59
b. To require the prosecution to prove the guilt of the accused and
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.

Plea of guilty to a non-capital offense

The court may receive evidence from the parties to determine the
penalty to be imposed.

Improvident plea of guilty (At any time before the judgment of

conviction becomes final)

May be withdrawn and be substituted by a plea of not guilty. (As

when the court failed in its duty to conduct the prescribed searching
inquiry into the voluntariness of the accused’s plea of guilty and full
comprehension thereof, the plea of guilty is deemed made
improvidently and rendered inefficacious.

Production of inspection of material evidence

Purpose – to prevent surprise, suppression, or alteration of the
evidence.

The court is authorized to issue an order to the prosecution to

produce and permit the inspection and copying and photographing
of any written statement given by the complainant and other
witnesses in any investigation of the offense conducted by the
prosecution or other investigating officers, as well as any designated
documents, papers, books, accounts, letters, photographs, objects or
tangible things not otherwise privileged, which constitute or contain
evidence material to any matter involved in the case and which are
in the possession or under the control of the prosecution, police or
other law investigating agencies.

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Motion to Quash (Rule 117)

May be made at any time before the accused enters his plea. (Not
allowed in a summary procedure XPN: Lack of jurisdiction over the
SM or failure to comply with the barangay conciliation proceedings)

Grounds for a motion to quash

1. That the facts charged do not constitute an offense;

2. That the court trying the case has no jurisdiction over the offense
charged;
3. That the court trying the case has no jurisdiction over the person
of the accused;
4. That the officer who filed the information has no authority to do
so;
5. That it does not conform substantially to the prescribed form;
6. That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;
7. That the criminal action or liability has been extinguished;
8. That it contains averments which, if true, would constitute a legal
excuse or justification;
9. 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.

Effect of failure to assert any ground of a motion to quash

GR: It shall be deemed a waiver of any objections.

XPNS: (Grounds not waived)

1. That the facts charged do not constitute an offense;

61
2. That the court trying the case has no jurisdiction over the offense
charged;
3. That the criminal action or liability has been extinguished;
4. Double jeopardy.

GR: Order sustaining a motion to quash is not a bar to another

prosecution. (another complaint may be filed)

XPNS:
1. Extinction of criminal liability
2. Double jeopardy

Double Jeopardy

Jeopardy – the danger of conviction and punishment which the

defendant in a criminal action incurs when a valid indictment has
been found.

Requisites of double jeopardy

1. A first jeopardy must have attached prior to the second;
2. The first jeopardy must have been validly terminated; and
3. The second jeopardy must be for the same offense or the second
offense includes or is necessarily included in the offense charged in
the first information, or is an attempt to commit the same or a
frustration thereof.

The first jeopardy is already attached when:

1. The accused has been convicted or acquitted, or the case against

him was dismissed or terminated without his express consent;
2. That the conviction, acquittal or dismissal was made by a court of
competent jurisdiction;

62
3. There is a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction;
4. The accused has pleaded to the charge;
5. The subsequent prosecution is for an offense which is the same as
the former complaint or information or offense which necessarily
includes or is necessarily included in the offense charged in the
former complaint or information.

Effects of double jeopardy

1. The conviction or acquittal of the accused or the dismissal of the

case shall be a bar to another prosecution for the offense charged, or
for any attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information. As a rule,
an acquittal rendered by a court of competent jurisdiction after trial
on the merits is immediately final and cannot be appealed on the
ground of double jeopardy. XPN: When the trial court acted with
grave abuse of discretion or when there was mistrial.

2. It is immediately executory and the State may not seek its review
without placing the accused in double jeopardy.

3. Jurisprudence dictates that the rule that acquittal of the accused

does not affect the right of the offended party to appeal the civil
aspect of the case. The concept of double jeopardy having reference
only to a criminal case and has no effect on the civil liability of the
accused.

* Double jeopardy is not applicable in preliminary investigation and

administrative cases.

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Dismissals equivalent to acquittal even with the consent of the
accused; speedy trial; demurrer to evidence

A dismissal based on a violation of the right to speedy trial is

equivalent to an acquittal. A waiver of double jeopardy will not
apply even if the accused expressly moved for the termination of the
proceedings. If the dismissal was predicated on the unreasonable
delay in the proceedings in violation of the accused’s right to speedy
trial, double jeopardy may attach even if the dismissal of the case
was with the consent of the accused.

The invocation of the right to speedy trial should be preceded by

insisting on a trial. If the accused wants to exercise his constitutional
right to a speedy trial, he should ask not for the dismissal but ask for
the trial of the case. After the prosecution’s motion for
postponement is denied and upon order of the court the fiscal does
not or cannot produce his evidence, and, consequently fails to prove
the defendant’s guilt, the court upon defendant’s motion shall
dismiss the case, such dismissal amounting to an acquittal of the
defendant. (Andres v. Cacdac)

Doctrine of double jeopardy in quasi-offenses – (Ivler v.

Modesto-San Pedro)

2 separate charges of RIR/SLI/PHY/INJ/ AND

RIR/HOM/DAM/PROP/. Ivler pleaded guilty to the charge of
RIR/SLI/PHY/INJ/ and was meted with the penalty of public
censure. His counsel moved to quash the information for
RIR/HOM/DAM/PROP invoking double jeopardy. MeTC denied
the motion on the ground that there is no identity of offenses in the
two cases. MR denied. Petition for Certiorari was filed before the
RTC. MeTC proceeded with the arraignment and due to absence of
accused, cancelled his bail and ordered his arrest. MR denied.

64
Elevated the case up to the SC. Motion to Quash remained
unresolved. SC held, reckless imprudence under Art. 365 is a single
quasi-offense by itself and not merely a means to commit other
crimes. Hence, conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of its
various resulting acts. (similar with People v. Diaz)

When double jeopardy shall not apply despite a prior conviction

1. The graver offense developed due to SUPERVENING FACTS

arising from the same act or omission constituting the former
charge; (Double jeopardy does not exist because one cannot be in
jeopardy for an offense which did not as yet exist at the time of the
filing of the first information.)
2. The facts constituting the graver charge BECAME KNOWN or
were discovered ONLY AFTER A PLEA WAS ENTERED in the
former complaint or information;
3. The plea of guilty to a lesser offense was made without the
consent of the prosecutor and of the offended party except as
otherwise provided in Sec. 1(f) of Rule 116.

Time bar rule; When provisional dismissal becomes permanent

under Rule 117
1. The case is NOT REVIVED within 1 year after the issuance of
the order of provisional dismissal with respect to offenses
punishable by imprisonment not exceeding 6 years or a fine of any
amount or both;
2. The case is NOT REVIVED within 2 years after the issuance of
the order of provisional dismissal with respect to offenses
punishable by imprisonment of more than 6 years.

Pre-Trial, Trial and Demurrer to Evidence (Rules 118 and 119)

65
Pre-trial (Rule 118)

Pre-trial is mandatory in the following courts:

1. Sandiganbayan
2. RTC
3. MeTC, MTCC, MTC, MCTC

Matters to be considered during Pre-trial; Purposes

1. Plea bargaining;
2. Stipulation of facts;
3. Marking for identification of evidence of the parties;
4. Waiver of objections to admissibility of evidence;
5. Modification of the order of trial if the accused admits the charge
but interposes a lawful defense;
6. Such matters as will promote a fair and expeditious trial of the
criminal and civil aspects of the case.

It shall be held after arraignment and within 30 days from the date
the court acquired jurisdiction over the person of the accused, unless
a shorter period is provided for in special laws or circulars of the
SC.

Pre-trial in civil cases v. Pre-trial in criminal cases

PT in civil cases PT in criminal cases

Preceded by a motion ex parte Such motion is not required from

by the plaintiff to set the case for the prosecution in a criminal
pre-trial. case.

66
Set by the court after the The pre-trial shall be held after
requisite motion from the arraignment and within 30 days
plaintiff after all pleadings have from the date the court acquired
been served and filed. jurisdiction over the person of
the accused, unless a shorter
period is provided for in special
laws of circulars of the SC.
The purpose of pre-trial is to Such is not a purpose in criminal
consider the possibility of cases.
amicable settlement or of
submission to alternative modes
of dispute resolution.
The sanction for non-appearance The sanction is upon the counsel
is imposed upon the non- or the prosecutor upon whom
appearing party. proper sanctions or penalties
may be imposed for non-
appearance in case of failure to
offer an acceptable excuse for
lack of cooperation.
The parties are required to file No such requirement.
and serve their respective pre-
trial briefs.
Trial (Rule 119)

Summary of periods:

1. Arraignment – within 30 days from the date the court acquired

jurisdiction over the accused but the time of the pendency of the
motion to quash or for a bill of particulars or other causes justifying
suspension of arraignment shall be excluded in computing the
period. When the accused is under preventive detention, his case
shall be raffled within 3 days from the filing of the complaint or

67
information. The accused shall be arraigned within 10 days from the
date of the raffle.

2. Pre-trial – after arraignment and within 30 days from the date the
court acquires jurisdiction over the person of the accused, unless a
shorter period is provided for in special laws or circulars of the SC.
If the accused is under preventive detention, the pre-trial shall be
held within 10 days after arraignment unless a law provides for a
shorter period.

3. Trial – the general period applicable is 30 days from receipt of

the pre-trial order. The accused after a plea of not guilty shall have
at least 15 days to prepare for trial. (If the accused is not brought to
trial in accordance within the time limit set by the ROC, the
information may be dismissed upon motion of the accused on the
ground of denial of his right to speedy trial. The motion must be
made prior to trial otherwise failure to do so shall be deemed a
waiver of the right to have the charge dismissed.

Delays to be excluded from computing the period for

commencement of the trial; some examples
Delay resulting from:

1. An examination of the physical and mental condition of the

accused;
2. Proceedings with respect to other criminal charges against the
accused;
3. Extraordinary remedies against interlocutory orders;
4. Pre-trial proceedings; provided that the delay does not exceed 30
days;
5. Order of inhibition, or proceedings relating to change of venue of
cases or transfer from other courts;
6. A finding of the existence of prejudicial question;

68
7. Delay reasonably attributed to any period, not to exceed 30 days,
during which any proceeding concerning the accuse is actually
under advisement;
8. 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. 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 the co-accused over whom the court has notacquired
jurisdiction, or, as to whom the time for trial has not run and no
motion for separate trial has been granted;
12. 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.

Trial period – in no case shall the entire period exceed 180 days
from the first day of trial, except as otherwise authorized by the SC.

Postponements

Postponements are subject to judicial discretion. There are certain

factors, among others, which the court shall consider in determining
whether or not to grant a continuance.

69
Prohibited grounds for a continuance

1. Congestion of the court’s calendar or due to lack of diligent

preparation; or
2. Failure to obtain available witnesses on the part of the prosecutor.

How to secure appearance of a material witness

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 oath that a material witness will not testify when
required.

Discharge of accused to be a state witness; Requisites

One or more of the accused tried jointly with the others, may
however, be discharged with their consent so that they may be
witnesses for the state. For this purpose, the prosecutor shall comply
with the following:
a. File a motion for the discharge of the accused; and
b. File the motion before the prosecution rests its case.

Requisites for discharge of a witness

1. There is ABSOLUTE NECESSITY for the testimony of the

accused whose discharge is requested;
2. That 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;

70
4. Said accused does not appear to be the MOST GUILTY; and
5. Said accused has NOT at any time CONVICTED of any offense
involving MORAL TURPITUDE.

* Where a crime is contrived in secret, the discharge of one of the

conspirators is essential because only they have knowledge of the
crime. (Salvanera v. People)

* The evidence adduced in support of the discharge shall

automatically form part of the trial. (Sec. 17, Rule 119)

* If the court denies the motion for discharge of the accused as state
witness, his sworn statement shall be INADMISIBBLE IN
EVIDENCE.

Effect of discharge of an accused to be a state witness:

It 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.

Order of trial

1. Prosecution presents its evidence to prove the charge and the civil
liability in the proper case.
2. The accused will then present his evidence to prove his defense
and the damages be 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
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;

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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. (Sec. 11, Rule 119, ROC)

Modification of the order of trial;reverse trial

The order of trial may be modified when the ACCUSED ADMITS
the act or omission charged in the complaint or information BUT
INTERPOSES A LAWFUL DEFENSE.

Reopening of proceedings

At any time before the 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 30 days from the order
granting it.

Requirements for reopening of case

1. The reopening must be before the finality of a judgment of

conviction;
2. The order is issued by the judge on his own initiative or upon
motion;
3. The order is issued only after a hearing is conducted;
4. The order intends to prevent a miscarriage of justice; and
5. The presentation of additional and/or further evidence should be
terminated within 30 days from the issuance of the order.

Trial in absentia

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While the right to be present may be waived like any other right, the
rule should not be taken to mean that the accused may, as a rule, be
tried in his absence (trial in absentia). He can only be tried in
absentia when the following requisites concur:

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 presence of the accused is required

1. At ARRAIGNMENT and plea, whether of innocence or guilt;

2. During trial, whenever necessary for IDENTIFICATION
PURPOSES;
3. At the PROMULGATION of the 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.

Corpus delicti in criminal cases; murder or homicide

Corpus delicti – defined as the body, foundation or substance of a

crime. The evidence of a dead body with a gunshot would on its
back would be evidence that murder has been committed.

Elements of corpus delicti

1. That a certain result has been established, for example, that a man
has died, and

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2. That some person is criminally responsible for it.

The prosecution is burdened to prove corpus delicti beyond

reasonable doubt either by direct evidence or by circumstantial
evidence or by presumptive evidence.

Lack of formal offer of evidence during the trial

Documents which may have been identified and marked as exhibits

during the pre-trial or trial but which were not formally offered in
evidence cannot in any manner be treated as evidence. The evidence
shall be excluded and rejected. A formal offer is necessary because
the judges are mandated to rest their findings of facts and their
judgment only and strictly upon the evidence offered by the parties
at the trial. On the other hand, this allows opposing parties to
examine the evidence and object to its admissibility.

Demurrer to Evidence (Rule 119)

Demurrer to evidence – it is actually a MD that is filed by the

accused after the prosecution has rested its case on the ground of
INSUFFICIENCY OF EVIDENCE. The court may on its own
initiative dismiss the action without waiting for a DE from the
accused also on the ground of insufficiency of evidence but the court
shall do so only after giving the prosecution the opportunity to be
heard.

Demurrer to evidence with leave of court

The motion for leave of court to file a DE shall specifically state its
grounds and shall be filed within a NON-EXTENDIBLE PERIOD
OF 5 DAYS after the prosecution rests its case. Opposition same
period from receipt of motion.

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If motion is granted, file DE within 10 days from notice. Opposition
same period from receipt of DE.

If motion is denied, said denial of the motion is not reviewable by

appeal or certiorari before judgment.

If the court grants the demurrer, the case is DISMISSED and the
accused is as good as acquitted.

If the court denies, the DE filed with LOC, the accused MAY
ADDUCE EVIDENCE in his defense. The order denying the DE
shall not be reviewable by appeal or certiorari before judgment.

Demurrer to evidence without leave of court

If granted, case is dismissed and the effect is an acquittal.

If denied, the accused WAIVES RIGHT to present evidence and

submits the case for judgment on the basis of the evidence for the
prosecution.

* A MD not grounded upon the insufficiency of evidence is NOT A

DE.

DE in a Civil Case v. DE in a Criminal Case

DE in a Civil Case DE in a Criminal Case

Anchored upon the failure of the Predicated upon insufficiency of

plaintiff to show that upon the evidence.
facts and the law, he is entitled
to relief.
Requires no prior leave of court. May be filed with or without
leave of court.

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When the DE is denied, the The accused may adduce his
defendant does not lose his right evidence in his defense ONLY
to present his evidence. WHEN DE was filed with LOC.
If without LOC, the accused
waives his right to present
evidence and submits the case
for judgment on the basis of the
evidence for the prosecution.
If the DE is granted, the plaintiff No appeal when DE is granted
may appeal and if the dismissal because the dismissal is deemed
is REVERSED, the defendant is an acquittal. (To grant an appeal
deemed to have waived his right would place the accused in
to present his evidence. double jeopardy.) *If the order is
issued with GADALEJ, it may
be reviewed by a petition for
certiorari under Rule 65. (P v.
Sandiganbayan)

JUDGMENT, REMEDIES AFTER JUDGMENT OF

CONVICTION AND PROVISIONAL REMEDIES

Judgment (Rule 120)

Judgment – is the adjudication by the court that the accused is

guilty or not guilty of the offense charged and the imposition on him
of the proper penalty and civil liability, if any.

Requisites of a judgment

1. It must be written in the official language;

2. It must be personally and directly prepared and signed by the
judge; and

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3. It must contain clearly and distinctly a statement of the facts, and
the law upon which it is based.

Rule when there are two or more offenses in a single

information or complaint (duplicitous complaint or information)

When two or more offenses are charged in a single information or

complaint, the accused must file a Motion to Quash because of the
rule that a complaint or information must charge ONLY ONE
OFFENSE EXCEPT when the law prescribes a single punishment
for various offenses.

If the accused fails to object before trial, he is deemed to have

waived the defect and the court MAY CONVICT HIM for AS
MANY OFFENSES as are charged and proved, and impose on him
the penalty for each offense, setting out separately the findings of
law in each offense. (Sec 3, Rule 120, ROC)

The motion should be raised during arraignment otherwise, it

amounts to a waiver and the objection can no longer be raised on
appeal.

Variance doctrine; variance between the allegation and proof

A situation where the offense proved is different from the offense as

charged in the complaint or information, and the offense as charged
is either included in the offense proved or necessarily includes the
offense proved. (The accused shall be convicted of the offense
proved which is included in the offense charged. He may also be
convicted of the offense charged which is included in the offense
proved.)

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Offense charged necessarily includes the offense proved – when
some of the essential elements or ingredients of the former, as
alleged in the complaint or information, constitute the latter.
Offense charged is necessarily included in the offense proved –
when the essential ingredients of the former constitute or form part
of those constituting the latter.

Promulgation of judgment

GR: Promulgated by reading it in the PRESENCE of the accused

and any judge of the court in which it was rendered.

XPN: If the conviction is merely for a light offense, the judgment

may be pronounced in the presence of his counsel or representative.

* Judgment may be promulgated by the COC if the judge is absent

or outside the province or city.

* If the accused is confined or detained in another province or city,

the judgment may be promulgated by the EJ of the RTC having
jurisdiction over the place of confinement or detention upon request
of the court which rendered the judgment. The court promulgating
the judgment shall have authority to accept the notice of appeal and
to approve the bail bond pending appeal. If the nature of the offense
is changed from non-bailable to bailable, the application for bail can
only be filed and resolved by the appellate court.

Rule if the accused fails to appear in the promulgation of

judgment

Promulgation shall be made by recording the judgment in the

criminal docket and serving him a copy thereof at his last known
address or thru his counsel.

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If the judgment is for conviction, and the failure of the accused to
appear was without justifiable cause, he shall LOSE THE
REMEDIES available in the ROC against the judgment and the
court shall order his arrest. If the accused surrenders within 15 days
from promulgation of judgment, he may file a motion for leave of
court to avail of the remedies. He shall state the reason for his
absence and if he proves the absence is justified, he shall be allowed
to avail of the remedies within 15 days from notice.

Modification of judgment – a judgment of conviction may be

modified or set aside upon motion of the accused, before the
judgment becomes final or before appeal is perfected.

When judgment becomes final (Memorize)

1. After the LAPSE of the PERIOD for perfecting an appeal, or

2. When the sentence has been partially or totally satisfied or served,
or
3. When the accused has waived in writing his right to appeal, or
4. Has applied for probation.

* An acquittal is immediately final.

* Entry of judgment is done after a judgment has become final.

New trial or Reconsideration (Rule 121)

MNT or MR – of the judgment adverse to the accused. Although

the court may, at its own instance, grant a new trial or a
reconsideration of the judgment but with the consent of the accused.

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Grounds for new trial (A new trial shall be granted on any of the
ff grounds)

1. The errors of law have been committed during the trial;

2. That irregularities prejudicial to the substantial rights of the
accused have been committed during the trial; and
3. That new and material evidence has been discovered.

Requisites for newly discovered evidence (as a ground for new

trial)

1. The evidence must have been discovered after the trial;

2. It could not have been previously discovered and produced at the
trial even with the exercise of reasonable diligence;
3. It is a new and material evidence. (Not one which is discovered
during the trial and would probably change the judgment)
4. If introduced and admitted, it would probably change the
judgment.
Grounds for MR

1. Errors of law in the judgment which requires no further

proceedings; and
2. Errors of fact which also requires no further proceedings.

Effects of granting a new trial or reconsideration

1. When the NT was granted on the grounds of errors of law or

irregularities during the trial, all the proceedings and evidence
affected thereby shall be (a) set aside, (b) taken anew and the court,
in the interest of justice may allow additional evidence from the
movant.

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2. When the new trial is granted on the ground of newly-discovered
evidence, the evidence already adduced shall stand. The newly-
discovered evidence together with other evidence which the court
may allow in the interest of justice, shall be taken and considered
together with the evidence already in the record.

3. In all cases, when a new trial or a reconsideration is granted, the

original judgment shall be set aside or vacated and a new judgment
shall be rendered accordingly.

The Neypes Rule

On September 14, 2005, in a civil case, the SC speaking through

then Assoc Justice Corona explained the period of appeal in civil
cases. Invoking Sec. 3 of Rule 41, the Court emphasized that the
period of appeal is NOT ONLY WITHIN 15 DAYS from notice of
the judgment BUT ALSO WITHIN 15 DAYS from notice of the
final order appealed from. If a MR or a MNT is denied, such denial
is to be DEEMED AS THE FINAL ORDER. From receipt of such
notice of denial, the movant has another “fresh period” within which
to appeal. Obviously, added the Court, the new 15-day period may
be availed of ONLY IF either motion is filed; otherwise the decision
becomes final and executory after the lapse of the original appeal
period from notice of the judgment.

The court held:

“To STANDARDIZE THE APPEAL PERIODS provided in the

Rules and to afford litigants FAIR OPPORTUNITY TO APPEAL
their cases, the Court deems it practical to allow a FRESH PERIOD
OF 15 DAYS within which to file the notice of appeal in the RTC,
counted from receipt of the order dismissing a MNT or MR.

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Henceforth, the “FRESH PERIOD RULE” shall also apply to:

1. Rule 40 governing appeals from MTC to RTC;

2. Rule 42 on petitions for review from RTC to CA;
3. Rule 43 on appeals from quasi-judicial agencies to the CA; and
4. Rule 45 governing appeals by certiorari to the SC.

The new rule aims to regiment or make the appeal period uniform,
to be counted from receipt of the order denying the MNT, MR
(whether full or partial) or any final order or resolution.

* On February 9, 2011, the SC held in the case of Judith Yu v.

Samson-Tatad, February 9, 2011, THAT THE Neypes Rule applies
to appeals in criminal cases.

Appeals (Rule 122, 124, 125)

Appeal not a natural right

The right to appeal is not a natural right nor a part of due process but
merely a statutory privilege and may be exercised only in the
manner and in accordance with the provisions of law. Once it is
granted by law, its suppression would be a violation of due process.

Who may appeal – any party may appeal from a judgment or final
order, unless the accused will be placed in double jeopardy. Observe
that the subject of the appeal is a judgment or a final order.
(Prosecution and defense)
When the accused appeals his conviction, he waives the protection
on the prohibition against double jeopardy and runs the risk of being
sentenced to a penalty higher than that imposed by the trial court.

Subject matter for review on appeal

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1. In criminal cases, an appeal throws the case wide open for review
and the reviewing tribunal can correct errors or even reverse the trial
court’s decision on grounds other than those that the parties raised as
errors. An appeal in a criminal case opens the entire case for review.
The appellate court can correct errors unassigned in the appeal.

2. The above rule is in contrast with the GR in civil cases where, no

error will be considered by the appellate court unless stated in the
assignment of errors.
XPNS:
a. The error affects the jurisdiction of the court over the SM;
b. The error affects the validity of the judgment appealed from or the
proceedings therein;
c. The error is closely related or dependent on an assigned error and
properly argued in the brief; and
d. The error is a plain error or a clerical error;
e. The appellate court finds that the consideration in arriving at a
complete and just resolution of the case or to serve the interests of
justice or to avoid a piecemeal justice.

Factual findings; credibility of witnesses

The trial court’s factual findings including its assessment of the

credibility of witness, the probative weight of their testimonies, and
the conclusions drawn from the factual findings – are accorded great
respect and even conclusive effect if duly supported by evidence.
These factual findings and conclusions assume great weight if they
are affirmed by the CA. The trial court having the advantage of
directly observing the deportment and manner of testifying of the
witness, the trial court is in a better position than the appellate court
to evaluate testimonial evidence properly. However, if there is any
indication that the trial court overlooked certain facts or

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circumstances which would substantially affect the disposition of
the case, the SC will not hesitate to review the same.

As to the credibility of witnesses and their testimonies, the trial

court’s findings on such matters are binding and conclusive on
appellate courts unless some facts or circumstances of weight and
substance have been overlooked, misapprehended, misinterpreted, or
the court gravely abused its discretion.

Where to appeal; How to appeal

1. To the RTC – in cases decided by the MeTC, MTCC, MTC or

MCTC; (Notice of Appeal)

2. To the CA or the SC (in proper cases provided for by law) – in

cases decided by the RTC; (Notice of appeal – CA: RTC in the
exercise of its original jurisdiction, Petition for Review – CA: RTC
in the exercise of its appellate jurisdiction.)
* No notice of appeal is necessary in cases where the RTC imposed
the penalty of death. The CA shall AUTOMATICALLY REVIEW
the judgment as provided in Sec. 10, Rule 122.

3. To the SC – in cases decided by the CA. (Petition for review on

certiorari under Rule 45) – the same as that in civil cases.
*If penalty imposed is RP or LI or lesser penalty, notice of appeal. If
penalty is other than death, RP, LI – petition for review on certiorari
only on questions of law and should raise the errors of the CA and
not those of the RTC.

When appeal is to be taken

An appeal must be taken within 15 days from promulgation of

judgment or from notice of the final order appealed from. This

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period for perfecting an appeal SHALL BE SUSPENDED from the
time a MNT or MR is filed until notice of the order overruling the
motion has been served upon the accused or his counsel at which
time the balance of the period begins to run.
Withdrawal of appeal – Even if an appeal has been perfected from
the MTC to the RTC, an appeal may be withdrawn when so allowed
by the MTC as long as the record has not been transmitted or
forwarded to the appellate court RTC. When the appeal is
withdrawn, judgment becomes final. The court which approves the
withdrawal at this stage is the MTC.

Effect of appeal by any of several accused

GR: An appeal taken by one or more of several accused SHALL

NOT AFFECT those who did not appeal.

XPN: Insofar as the judgment of the appellate court is favorable and

applicable to the latter, PROVIDED all must interpose a COMMON
DEFENSE.

Period to apply for probation – within the period for perfecting an

appeal, which is 15 days from promulgation of judgment or from
notice of the final order appealed from, and the filing of the
application after the time of appeal has lapsed is injurious to the
recourse of the applicant.

Stay of execution – Upon perfection of the appeal, the execution of

the judgment or final order appealed from shall be stayed as to the
appealing party. (This does not benefit co-accused who did not file
an appeal.)

Power of the Ca to receive evidence

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The CA shall have the power to try cases and conduct hearings,
receive evidence and perform all acts necessary to resolve factual
issues raised in cases falling within its original and appellate
jurisdiction, including the power to grant and conduct new trial and
further proceedings. Trials or hearings conducted in the CA, must be
continuous and must be completed in 3 months, unless extended by
the Chief Justice.

Dismissal of appeal by the CA

The Ca may, upon motion of the appellee or motu proprio and with
notice to the appellant in either case, dismiss the appeal if the
appellant fails to file his brief within the time prescribed by this
Rule, EXCEPT where the appellant is represented by a counsel de
oficio. The CA may also upon motion of the appellee or motu
proprio dismiss the appeal if the appellant escapes from prison or
confinement, jumps bail or flees to a foreign country during the
pendency of the appeal.

Ground for reversal of judgment or its modification – if the CA

after examination of the record and the evidence finds that error has
been committed which injuriously affects the substantial rights of
the appellant.

Rule if the opinion of the SC en banc is equally divided

When the SC en banc is equally divided in opinion or the necessary

majority cannot be had on whether to acquit the appellant, the case
shall again be DELIBERATED upon and if no decision is reached
after the re-deliberation, the JUDGMENT OF CONVICTION of the
lower court shall be REVERSED and the accused acquitted.

PROVISIONAL REMEDIES IN CRIMINAL CASES

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The provisional remedies in civil actions, insofar as they are
applicable, MAY BE AVAILED OF in connection with the civil
action deemed instituted with the criminal action.

To avail of a provisional remedy in a criminal action, it must be one

with a corresponding civil liability. If there is a civil liability, the
civil action must be one arising from the offense charged and which
is instituted in the said criminal action. Hence, if the civil action has
been WAIVED, RESERVED OR INSTITUTED SEPARATELY,
the provisional remedy applicable may not be availed of in the
criminal action. Instead, the provisional remedy should be applied
for in the separate civil action instituted.

Example: Support for the offspring as a consequence of the crime,

and the civil aspect thereof has not been waived, reserved or
instituted separately, the accused may be ordered to provide support
pendente lite to the child born to the offended party.

When preliminary attachment is available

When the civil action is properly instituted in the criminal action as

provided in Rule 111 of the ROC 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; (May be availed of without the
need for a showing that the accused has concealed, removed, or
disposed of his property or is about to do so. What is needed is that
the following be shown:

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i. The criminal case is founded upon a claim that money or property
was embezzled, fraudulently misapplied or convered to the use of
the accused; and
ii. That the accused occupies any of the positions mentioned in Sec.
2, Rule 127 (a public officer, officer of a corporation, attorney,
factor, broker, agent or clerk or by any other person in a fiduciary
capacity) or that he committed 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.

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