Criminal Procedure (Midterms) Transcript | Atty. Eduardo Soleng | A.Y.
2017-2018 1
RULE 110— PROSECUTION OF OFFENSES (starting
with Duplicity of offenses)
1. Is it allowed to charge more than 1 offense in
the complaint or information? Is duplicity of
offense allowed in 1 information? Reason.
Exception. Art 48 complex crimes, special
complex crimes, continued crime, doctrine of
absorption
2. What are complex crimes? Example of
complex crimes. When one act results into 2 or
more grave or less grave felonies, or a felony is
committed as a means to committing another
felony. (for examples, check Art 48)
3. If automatic weapon used—is it complex or
separate offenses? Separate because the
offender will keep pressing the trigger
4. What is a continued crime? (important:
SINGLE intent) single crime consisting of a series
of acts but all arising from one criminal resolution
Note: Different firearms cannot be lumped in
one information but has to be filed differently
because of the different penalties involved
5. Is there a remedy as to duplicitous
information? Motion to quash as provided in Sec
3, Rule 117 before arraignment
6. Reason why the cause of the accusation to be
stated in the information. Relate to double
jeopardy. So the prosecutor cannot anymore file
a subsequent case that may violate a person’s
right against double jeopardy.
7. Effect of the marriage of the offended party to
the offender in private crimes. Constitutes
pardon that will erase criminal liability.
8. Is there a need to allege qualifying and
aggravating circumstances in the complaint or
information? Reason. Yes, otherwise it will not
be appreciated as such even when proven during
trial.
9. Difference between qualifying and aggravating
(generic). Qualifying circumstances change the
penalty. Generic aggravating increases the period.
10. Is it enough to state “crime was qualified with
treachery”? No. What is controlling is the recital
of facts constituting the aggravating
circumstances
11. Reason for the elements of the crime to be
alleged. Right to be informed, prevent the
violation of a person’s right against double
jeopardy
12. Venue is jurisdictional in a criminal case.
Why? Court’s authority is lodged only in its
territorial jurisdiction; court cannot render a valid
decision over a crime committed outside its
territorial jurisdiction; give accused chance to
bolster his defense and not give him a great deal
of inconvenience
13. Does the place of the commission of the crime
have to be stated in the information? When it is
essential to the crime
14. Does the place need to be proven during trial?
Reason. Implication on the court’s jurisdiction,
otherwise it may be transferred to the court with
jurisdiction
15. Remedy if venue was incorrect. Quashal of the
information before arraignment because the court
does not have jurisdiction over the offense
16. Supposing during trial, the court found out
that it does not have jurisdiction, what will the
court do? Dismiss the case because the court
does not have jurisdiction and it cannot render a
valid judgment; advise prosecution to file it in the
proper court of jurisdiction
17. Will it violate the rule on “continuing
jurisdiction”?
18. What are the exceptions of venue? Article 2,
RPC. On board a vessel. On a moving car.
Sandiganbayan. SC orders the transfer of a
criminal case to another RTC. Libel.
19. What is the rule on libel regarding venue?
Importance when public officer is involved;
RELEVANT WHEN PUBLIC OFFICER IS THE
OFFENDED PARTY
20. What is the rule on “online/ internet libel? Is
there such a thing? Residence and place where
he is in office
21. Reason for the rule.
22. Where will you file your case for perjury? (refer
to Union Bank case)
a. Modes of perjury
b. In making a false affidavit. Where
subscribed and sworn to Reason for this
rule
i. Executed in Cebu City and
filed in Lapu2x (should be filed
in Cebu City)
c. In making a false testimony in a
proceeding that is neither criminal or
civil in nature: Where oath is
undertaken
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23. BP 22 where is it filed? Place where any of the
material facts constituting BP 22 took place (e.g.
where check was issued, encashed etc.)
24. Someone took your wallet inside this
classroom then found out that one of your
classmates stole your wallet and brought it to
Cordova? Can you file it in Cordova? This is
about theft—not a continuing crime; should be
where the thing is taken
25. What is amendment? How do you effect an
amendment (by striking through the error in
the complaint or information)? (BE CAREFUL
ON THE DEFINITION CITED BY THE BOOK
REGARDING SEC 1, RULE 10 AS RULE 10 IS
PART OF CIVIL PROCEDURE; CRIMINAL
PROCEDURE STARTS FROM RULE 110-127 IN
THE ROC; HOWEVER, THIS DEFINITION IS
STILL APPLICABLE TO CRIMINAL
PROCEDURE)
a. Portion to be deleted or amended will
have a “strikethrough” in criminal
complaints to show the amended
portions and what were amended
26. Is leave of court required for an amendment?
No need when made prior before the plea
27. Exceptions to amendments before plea (With
regard to leave of court). Downgrades offense
and excludes an accused.
28. What are the requirements to effect this kind of
amendment? Motion by the prosecutor etc.
29. Why is there a need to give notice to the
offended party? There is a need to give notice to
the offended party as it may downgrade the nature
of the crime or exclude an accused. Therefore, it
may prejudice his interests over the prosecution of
the crime.
30. Why is there a need to get that leave of court?
To cut down the discretion on the part of the
prosecutor. There is a great possibility that the
accused will bribe the prosecutor to drop the case
or downgrade offense or exclude him as an
accused. That is why the discretion is being
curbed down as there is a need for the prosecutor
to file a motion, notify the offended party and get
that leave of court. Otherwise, the prosecutor will
be a very powerful prosecutor.
31. After plea, what is the rule? Only a formal
amendment
32. Why formal? Formal amendment only so it will not
prejudice the rights of the accused (against his
right to be informed of the nature and cause of the
accusation against him)
33. After the accused enters the plea, is there an
instance that a substantial amendment is
allowed? No, there is no instance. Substantial
amendment after the plea is clearly not allowed at
this stage.
34. What is the difference between substantial and
formal amendment? Determination and
differentiation are not provided in the Rules. We
are only guided by the rulings of the SC. Before, if
the amendment changes the penalty, it is
substantial but nowadays change in penalty is
merely formal. It is deemed SUBSTANTIAL IF: (1)
it changes the nature of the offense; or (2) the
evidence at hand on the part of the accused could
no longer be used; Or (3) the theory on the part of
the defense could no longer be used. For
example, from murder to homicide, the nature of
the offense is already changed and even perhaps
the theory of the defense or the evidence of the
accused may no longer be used.
35. Do you need leave of court in case of formal
amendment? Yes
36. If subsequent amendment, will the court
allow? No, as a general rule.
37. Exceptions. (1) Doctrine of supervening event
(e.g. death, passage of a new law); (2) beneficial
to the accused (e.g. from murder to homicide)
38. From simple theft to qualified theft: Considered
as substantial; the nature of committing the
offenses are different so in effect the nature of the
offense is changed
39. The crime was homicide, the prosecutor
wanted to amend the information. He would
want to include all the aggravating
circumstances of recidivism etc because he
failed to allege the circumstances. Is there a
need to allege them? Yes, otherwise they would
not be appreciated even if proven during trial. Is
that a substantial or a formal amendment?
Formal amendment, because it only relates to the
imposable penalty.
40. If the prosecutor wrongfully designated the
name of the private offended party, can he
correct the designation? Is it a formal or
substantial amendment? Formal amendment,
because it does not change the nature
41. Suppose the prosecutor wants to amend the
designation of the information from theft to
qualified theft? Formal amendment because it is
only the designation that is amended not the
recital of facts.
42. A person was charged with several charged of
illegal recruitment and pleaded not guilty to all
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of them and the prosecutor wanted to amend 51. Supposing charge was frustrated homicide but
the information into one information of large- what was found out during trial, accused is
scale illegal recruitment. Is it allowed? No, guilty of seduction. Order the substitution of the
because it is considered a substantial amendment complaint (seduction is totally different from
because it already changed the nature of the frustrated homicide). No double jeopardy (not
offense. If it was made before his plea, of course necessarily included etc.)
it is allowed. (Note: there can only be an
amendment through lumping several informations 52. Difference between amendment and
not just striking out) substitution.

43. The prosecutor would want to include another

accused in the information. Is that allowed? Amendment Substitution
Allowed because it is only a formal amendment Either formal or Necessarily involves a
substantial substantial change
44. What is substitution? There appears, before from the original
judgment, a mistake has been made in charging charge
the proper offense. Effected without leave Must be with leave of
of court when made court as the original
45. Example. Murder charges to simple rebellion before plea information has to be
dismissed
46. What will the judge do in substitution? Dismiss When it is only in Another PI is entailed
the case once the new one charging the proper FORM—no need for and the accused has
offense is filed provided the accused will not be another PI and to plead anew to the
placed in double jeopardy (not necessarily retaking of plea new information
included in the offense charged; attempt or Amended information Presupposes that the
frustration of the offense charged; same evidence refers to the same new information
rule) offense charged in the involves a different
original information or offense which does
47. Crime charged is theft but the evidence shows to an offense which not include or is not
he should be charged with robbery. What necessarily includes necessarily included
should he be convicted for? Theft, because he or is necessarily in the original charge,
was only charged with theft under the information included in the original hence the accused
even though the evidence during trial shows charge, hence cannot claim double
robbery was committed and theft is necessarily substantial jeopardy
included in the crime of robbery. If you will convict amendments to the
him for robbery, the right of the accused to be information after the
informed of the nature and cause of the accusation plea has been taken
would be violated. cannot be made over
the objection of the
48. Crime charged is robbery but the evidence accused, for if the
shows he should be charged with theft. What original information
should he be convicted for? Theft, because would be withdrawn,
even though he was charged with robbery, such the accused could
was not proven during trial. Since the defense was invoke double
able to prove theft, he can be convicted therefor jeopardy
because THEFT IS NECESSARILY INCLUDED Where the second Where the new
IN ROBBERY (even though not charged against information involves information charges
him in the information); the same offense or an offense which is
an offense which distinct and different
49. Crime charged is slight physical injuries but necessarily includes from that initially
the crime committed is really frustrated or is necessarily charged, a
homicide. Only for slight physical injuries and he included in the first substitution is in order
was not charged with frustrated homicide. SPI is information,
necessarily included in frustrated homicide. amendment is
sufficient
50. Crime charged is frustrated homicide but
crime committed is really slight physical
injuries. Only for slight physical injuries since SPI RULE 111—PROSECUTION OF CIVIL ACTION
is necessarily included in the crime charged of
frustrated homicide. 53. What is this implied institution of a civil action
with the criminal action? Sec 1(a), Rule 111,
Rules of Court

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54. Why is there an implied institution? Criminal
case has 2 aspects (criminal and civil); offends 2
parties; speedy disposition of cases
55. Exceptions to the implied institution. waiver of
his right; reservation of his right; institution of civil
action prior to criminal action
56. Civil liability may be awarded even if accused
is acquitted. Reason. Different quantum of proof
needed
57. Instances when accused is acquitted and there
is no civil liability. Showing that the accused did
not commit the crime or the crime was not at all
committed. (Note: However if the prosecution just
failed to prove his guilt beyond reasonable doubt,
he can still be made to answer the civil liability)
58. Supposing the accused is found guilty, does it
follow that the accused should be found civilly
liable? Not necessarily, because there is a
different quantum of proof (beyond reasonable
doubt vs preponderance of evidence) needed.
There should be a separate and distinct set of
evidence presented for criminal and civil aspect
(duty of the private prosecutor is to show that truly
his client has suffered these damages). You have
to prove the amount and value of damages before
it can be awarded. More often than not, when there
is already conviction, it is already very easy for the
court to award civil damage.
59. There are crimes which do not have private
offended parties. Example. Espionage, violation
of neutrality, flight to enemy country and crime
against popular representation
60. Can there be a civil liability in plunder? Can
the state act as the private offended party?
The government can act as a private offended
party (e.g. Province of Cebu as a governmental
entity). The Sandiganbayan can order the
governor to restitute the amount pocketed, as well
as other damages proper on the basis of the
evidence shown during the trial.
61. In perjury, is there a private offended party?
Example, perjury was shown to be hurtful to the
credence of the person against whom the
testimony was made (Lee Pue Liong v Chua Pue
Chin Lee). At all times? Passed a false affidavit
in Certificate of Forum Shopping. Note: If you
believe you have suffered damage because of
the false testimony etc., you can be a private
offended party; case to case basis
62. What is this independent civil action? Civil
action not arising from crime
63. Do you need to reserve the same? No, it is
considered separate and distinct
64. What are cases where reservation is not
allowed, meaning you need to institute the
civil liability in the same case as your criminal
case? BP 22 cases Reason. Prevent clogging of
court. Another example. Tax cases Reason.
Cases need to be resolved speedily because tax
is the lifeblood of the government. Another
example. Cognizable by the SB because SB is
primarily a criminal court. You cannot separate
the criminal case in the SB and the civil aspect in
the RTC.
65. If you reserve your right to file the civil action
arising from crime, supposing there is already
a criminal case and you reserve your right.
Can you now file the civil action while the
criminal case is pending? The reserved civil
action should be filed after the termination of the
criminal action.
66. Supposing you instituted the civil action
ahead of the criminal and the prosecutor filed
the criminal case, what will happen to the civil
action? Civil action will be suspended and be
revived after the termination of the criminal case.
67. What is the option of the offended party? Ask
for a consolidation of the cases.
68. What happens to the evidence presented in
the civil action? Deemed reproduced in the
criminal case
69. What is a counterclaim? It may be a compulsory
(arose from the same transaction) or permissive
(not arise from the same transaction)
counterclaim. In a CIVIL case, plaintiff alleges a
cause of action (there is a right, there is a violation
of the right and you suffered some damages). The
defendant files his Answer (responses to the
allegations; counterclaim that you are the one
who is damaged in the transaction).
70. Is that allowed under a criminal case? No (Sec
1(a), Rule 111: 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). It may be made
subject of a separate civil action. E.g. reckless
imprudence resulting to damage of property; car
owner alleges his car was totally wrecked by the
driver (supposedly accused has a compulsory
counterclaim that he is actually the one who is
damaged but he cannot put the same in the same
criminal case as counterclaims are not allowed in
criminal proceedings)
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71. What are cross-claims? One plaintiff with
several defendants and one of the defendants
avers that he is not liable but only the other
defendants.
72. What is a third-party claim? Claim by a person
not yet a party to this case.
73. Should filing fees be paid? Paid when damages
are being claimed by the offended party. No filing
fees required for actual damages (damages
suffered by a person on the basis of pecuniary
estimation of the actual loss) claimed except
those violations of BP 22 and Estafa (courts are
made collection agents of the creditors). In BP 22
cases, the filing fees shall be based on the
amount of the check and shall be paid in full. In
estafa, the filing fees shall be paid based on the
amount involved.
74. What about other types of damages? If the
filing fees are specified, it should be paid by the
offended party. If it is not specified, it will be
regarded as a first lien on the judgment (whatever
is the award granted to the offended party, the
filing fees should be deducted)
75. What is a moral damage? Sleepless nights,
besmirched reputation, serious anxiety, mental
anguish
76. What is a temperate damage? Actual damage
is proven but the court cannot substantiate his
claim.
77. What is a nominal damage? No proof of actual
damage.
78. What is an exemplary damage? Corrective type
of damage that will set as an example; e.g.
offense is so grave
Note: After arraignment, accused dies—both civil and
criminal liability are extinguished; before
arraignment, accused dies—only criminal liability is
extinguished but civil liability may be proven against
the estate. REMEMBER THE DEMARCATION OF
“BEFORE ARRAIGNMENT”
Ruling in Bayotas:
1. Death of the accused pending appeal of his
conviction extinguishes his criminal liability
as well as the civil liability based solely
thereon. As opined by Justice Regalado, in this
regard, "the death of the accused prior to final
judgment terminates his criminal liability
and only the civil liability directly arising from and
based solely on the offense committed, i.e., civil
liability ex delicto in senso strictiore."
2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the
same may also be predicated on a source of
obligation other than delict. Article 1157 of the
Civil Code enumeratesthese other sources of
obligation from which the civil liability may arise
as a result of the same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) x x x
e) Quasi-delicts
3. Where the civil liability survives, as explained in
Number 2 above, an action for recovery therefor may
be pursued but only by way of filing a separate civil
action and subject to Section 1, Rule 111 of the 1985
Rules on Criminal Procedure as amended. This
separate civil action may be enforced either against the
executor/administrator or the estate of the accused,
depending on the source of obligation upon which the
same is based as explained above.
4. Finally, the private offended party need not fear a
forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of the
criminal action and prior to its extinction, the private-
offended party instituted together therewith the civil
action. In such case, the statute of limitations on the civil
liability is deemed interrupted during the pendency of the
criminal case, conformably with provisions of Article 1155
of the Civil Code, that should thereby avoid any
apprehension on a possible deprivation of right by
30
prescription. (Emphases supplied)
79. Supposing X is convicted with murder in the
RTC. While his case is pending on appeal, he
died. What happens to the criminal liability? It
is extinguished
80. Person charged with rape. During trial, he
died. What happens to the criminal liability? It
is extinguished.
81. What about his civil liability? Civil liability
arising from the crime is extinguished, as well.
82. May the offended party still file for an
independent civil action? Yes. Just those
damages not arising from crime
83. Before arraignment, said rapist died. What
happens to the criminal liability? Extinguished
84. What about the civil liability? Civil liability is not
automatically extinguished. Rule provides civil
liability can be against his estate which is the
continuation of the personality of the deceased up
to a certain extent (Sec 4, Rule 111)
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85. After arraignment and he died, what happens?
Both the criminal and civil liability are
extinguished.
86. Will novation extinguish criminal liability? No.
BUT IT MAY ONLY PREVENT What is
novation? Note: Guingona v City Fiscal of
Manila (1984)—VERY IMPORTANT CASE
where SC said novation may, in effect, prevent
the incipient criminal liability to arise for as long
as novation is made prior to the institution of the
criminal proceedings. However, if novation is
made after the institution, it will not affect the
criminal liability.
87. Supposing a person was charged with
robbery then after charge was filed in court,
he returned the amount to the private
offended party. Will he still be criminally
liable? Yes, compromise agreement between the
accused and the private offended party will not
affect the prosecution of the criminal case
88. Supposing X filed an ICA against Y for
physical injuries, the court denied his claim.
Later on, he filed a civil case against Y for
damages arising from the same criminal act.
Will the subsequent claim for damages
prosper? What the law prevents is double
recovery; it is based on different sources of
obligation
89. What is subsidiary liability? If the party who is
bound to pay but cannot because he is insolvent,
a person may be bound to pay for him subject to
certain conditions (e.g. employer for his
employee); liability is not direct—the offender
must be insolvent
90. What is a prejudicial question? Question based
on a fact distinct and separate from the crime but
it is so intimately connected with the crime that it
determines the guilt or innocence of the accused;
jurisdiction of the case is lodged in a different
tribunal
91. Reason. Avoid 2 conflicting decisions in the civil
and criminal case
92. Requisites. Section 7, Rule 111: (1) previously
instituted civil action involves an issue similar or
intimately related to the issue raised in the
subsequent criminal action, and (2) resolution of
such issue determines whether or not the criminal
action may proceed (and (3) jurisdiction to try said
question must be lodged in another tribunal)
93. When can you apply the doctrine of a
prejudicial question? Previously instituted civil
action and a subsequent criminal case (EXCEPT:
one admin and one crim case involving HLURB
and specific performance to deliver the TCTs—
San Miguel Properties v Perez)
94. X filed estafa against Y; Y filed specific
performance against X. Can prejudicial
question be invoked? No, criminal case is filed
before civil case.
95. Effects of the prejudicial question. The
suspension of the criminal case
96. Supposing there is only one RTC in the area
and the criminal case and civil case was
lodged in the same court. May the judge motu
propio suspend the criminal case? No,
suspension of the criminal case is only on the
basis of the petition filed by the parties
97. Supposing X commenced a civil case against
Y and Y filed a complaint in the office of the
prosecutor. May the party concerned ask for
suspension of the criminal case? Yes, it is
sufficient that the case be in the stage of
preliminary investigation, hence it may be filed
with the office of the prosecutor
98. Is dismissal the same as suspension?
Suspension only of the criminal case, not a
dismissal thereof
99. Supposing a person was accused of
committing murder against his wife. Then a
case was filed against him. After the filing of
the parricide case, there was a civil action
filed for declaration of nullity of the marriage.
Can he ask for suspension of the criminal
case? No, the civil action was filed subsequent to
the criminal action.
100. Supposing a civil action was filed for
challenging the authority of the one acting for
the corporation. Thereafter, a criminal case
was filed involving the one acting for the
corporation charged with estafa (acting in
behalf of the corporation). Can there be a
prejudicial question? Yes, if it is determined in
the civil case that the one acting for the
corporation really does not have authority then
estafa case cannot prosper. Since the alleged
offended party is the corporation, validity of the
demand rests upon the authority of the person
making such demand. If the supposed authority
of the petitioner is found to be defective, it is as if
no demand was ever made, hence estafa cannot
prosper.
101. Is there a prejudicial question involving
specific performance and BP 22 case? No, in
BP 22, what is penalized is the mere issuance of
the check with the knowledge of having
insufficient funds. The only issue to be resolved in
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the BP 22 case is whether or not you issued that
worthless check and put it into circulation.
102. Whether or not bigamy case can be
suspended based on a previous filing of
declaration of nullity of marriage (void from
the very beginning; annulment= valid until
annulled). No. Without a judicial declaration of its
nullity, the first marriage is presumed to be
subsisting. It is not upon you to decide that your
marriage is void, you must get that declaration of
nullity first. (same with bigamy and annulment;
concubinage and annulment—for as long as the
marriage is subsisting, there will be no prejudicial
question there)
103. ICA, is it a ground for prejudicial question?
No, ICA can be filed separately. It is based on a
different cause. It proceeds independently of the
criminal action (specific right given by law)
RULE 112—PRELIMINARY INVESTIGATION
104. What is PI? Inquiry or a proceeding to determine
whether there is sufficient ground to engender a
well-founded belief that a crime has been
committed and the respondent is probably guilty
thereof (Sec 1, Rule 112)
105. Purposes of conducting PI. Determine WON a
crime has been committed and respondent is
probably guilty thereof; secure innocent against
hasty, malicious and oppressive prosecution and
the State from the trouble of a public trial; minimize
clogging of dockets in court; preserve evidence
and keep the witnesses within the control of the
State and to determine the amount of bail if
offense is bailable
106. Why do you say it is an executive function?
Conduct of PI is a function that belongs to the
prosecutor
107. What is probable cause? Facts and
circumstances that would lead a reasonable and
prudent person to believe that a crime has been
committed and the person is probably guilty
thereof
108. Why is it said to be part and parcel of due
process? Accords the respondent opportunity to
be hear (produce his response and evidence)
109. Why is it said to be a statutory right only not a
constitutional right? PI is only given when it is
provided to be given by law
110. When a person is denied of his right to PI,
what is his remedy, if any? Motion to conduct PI
to court so the court can suspend the proceedings
and forward all the documents to the prosecutor to
conduct the necessary PI
111. When are you supposed to ask for the PI?
Before plea or within 5 days upon learning about
the filing of the information in court
112. What’s the effect if the accused already enters
his plea before asking for PI? Deemed waived.
It is as if he already submitted himself to the JD of
the court.
113. “Based on reasonable belief”, what does this
mean? Calibration of evidence in PI is necessary.
Higher than mere suspicion. Not absolute certainty
114. Can it be based on hearsay? As long as based
on substantial basis; not for the prosecutor to
appraise evidence; what is only needed is a
reasonable basis to believe that a crime has been
committed and the respondent is probably guilty
thereof
115. What is hearsay? Information was never
attained by the witness using his personal
knowledge (information passed to him using his
senses)
116. “Doctrine of independent relevant statement”.
Hearsay testimony may be admitted to prove a
fact but not of the crime (e.g. to prove that A and
B talked about the commission of the crime BUT
NOT to prove that C committed that crime to A)
117. Difference between PI and PE. (focus on judicial
determination of PC and executive determination
of PC; filing of information in court and issuance of
warrant of arrest)
118. Judicial review and filing of information by the
prosecutor. It is based on the principle of
separation of powers.
119. Importance of the prosecutor’s discretion in
determining PC to file information. Prosecutor
is deemed to exercise his best judgment in the
exercise of his exclusive function. You cannot
supplant the decision of the prosecutor by going to
court. EXCEPTION when there is already a grave
abuse of discretion (not based on any evidence;
evasion of a positive duty) amounting to lack or
excess in jurisdiction (discretion is exercised in a
very whimsical or despotic manner)
120. What is your remedy of the aggrieved party of
the resolution of the prosecutor? Motion for
Recon is not necessary, but of course you are not
prevented to file the MR so you may give the
prosecutor the opportunity to correct his errors.
121.From the office of the prosecutor, where will
you go? Depends on the crime involved
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122.When can you appeal to the Regional State
Prosecutor? When the crime is cognizable by the
MTC
123.When are you supposed to go to the Office of
the Secretary Justice? When the crime is
cognizable by the RTC
124. From RSP, where can you appeal? Resolution
of the RSP is final. DOJ through Secretary of
Justice MAY review the resolution of the RSP in
the exercise of its supervision over RSP. Rule of
thumb: don’t go to the Secretary of Justice—he will
most probably just dismiss the appeal.
HOWEVER, ATTY’S ADVICE is go to the CA by
way of filing MR
125. Why do you file an MR first rather than filing
by way of Rule 65 directly? Because under Rule
65, it is required that “there is no other adequate
plain speedy remedy”. So before you can file Rule
65, you must first exhaust all your remedies first
which is the MR
126. From the Office of the Secretary of Justice
(crime is cognizable by the RTC), where can
you go? Office of the President under the given
conditions. You do not go to the CA.
127. Supposing penalty is below reclusion
perpetua, what is your remedy? MR then CA
under Rule 65 (MR IS ALWAYS NECESSARY
BEFORE YOU CAN AVAIL OF RULE 65)
128. If there is already a resolution in the Office of
the President, where can you go? CA by Rule
43 (by filing a verified petition for review). NOT
RULE 65 BECAUSE YOU HAVE ANOTHER
AVAILABLE REMEDY UNDER RULE 43
129. REMEMBER the 3 instances that the
resolution can go to the CA. appeal from the
RSP under Rule 65, appeal from the Sec of Justice
under Rule 65 and from the Office of the President
under Rule 43. (REMEMBER BEFORE RULE 65
CAN BE AVAILED OF, ALWAYS FILE AN MR)
130. After CA, where can you go? SC under Rule 45
on PURE QUESTIONS OF LAW.
131. Can you include mixed questions of law and
fact? No. SC is not a trier of facts. It only resolves
PURE QUESTIONS OF LAW
132. What is a question of fact? Factual issues
133. What is a question of law? Facts are already not
in issue. Question of the application of law to the
set of facts.
134. Instances when PC is required. Determined by
prosecutors (for filing of information in court).
Determined by judges (for issuance of warrant of
arrest). Determined by peace officer or private
individual (in warrantless arrest). Determined by
judge (for issuance of search warrant)
135. When does PC apply in warrantless arrest?
Hot pursuit under Sec 5(b) of Rule 113. Personal
knowledge of FACTS AND CIRCUMSTANCES
(not necessarily of the crime itself) enough to
believe that a crime has been committed and the
person is probably guilty thereof.
136. Who may conduct PI? Section 2, Rule 113.
Prosecutors. In certain instances, COMELEC
(through duly authorized legal officers for
violations of Omnibus Election Code; DOJ can
conduct PI; “power, CONCURRENT with the other
prosecuting arms of the government”),
Ombudsman (PRIMARY jurisdiction of crimes
cognizable by SB; ANY ACT OR OMISSION OF
ANY PUBLIC OFFICER OR EMPLOYEE,
OFFICE OR AGENCY WHEN SUCH ACT OR
OMISSION APPEARS TO BE ILLEGAL,
UNJUST, IMPROPER OR INEFFICIENT) and
PCGG (with the assistance of the OSG and other
government agencies; to investigate, file and
prosecute cases investigated by it under EO 14)
137. Even if the crime was not committed in
relation to his office, can the Ombudsman
investigate? YES, THE ANSWER IS YES
CLASS. THE OMBUDSMAN CAN IVESTIGATE
FROM THE HIGHEST OF THE HIGH TO THE
LOWEST OF THE LOW, FOR AS LONG AS THE
PERSON RECEIVES EMOLUMENTS FROM
THE RP, with the exception of IMPEACHABLE
OFFICERS, ombudsman can investigate but it
cannot file an information in court. NOTE ALSO
CLASS, THE INVESTIGATION IS NOT LIMITED
TO THE CRIMINAL LIABILITY BUT ALSO TO
ADMINISTRATIVE MATTERS OR
INFRACTIONS (Ombudsman sits as a judge; to
render a decision in the administrative case). In
criminal matters, Ombudsman does not determine
the guilt as a judge. He can only investigate to
determine PRO-BA-BLE CAUSE and if he finds
PROBABLE CAUSE, HE MAY NOW FIIIIILEEEE
THE INFORMATION IN COURT. (PLEASE
REMEMBER THIS KAY SI ATTY SOLENG
GRABE SIG HAPAK SA TABLE ANI HUHU)
138. Supposing Ombudsman learned that DOJ
(since Ombudsman JD is concurrent with the
DOJ) investigated a public officer accused of
rape, may he conduct the investigation? DOJ
is not precluded HOWEVER Ombudsman has
discretion to take over the investigation AND
prosecution (primary jurisdiction).
139. What is meant by “primary jurisdiction of the
Office of the Ombudsman”? Primary jurisdiction
over those cases cognizable by the
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Criminal Procedure (Midterms) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 9
Sandiganbayan; at any stage of the proceedings,
the Ombudsman may come in and take that
investigation from the entity currently conducting
the investigation.
Ombudsman Conchita and then Secretary of Justice Leila
(who is already in jail hehe) entered in a MOA in 2012 that
if upon the filing of the complaint, the prosecution office of
the DOJ determines that the crime falls in the exclusive
jurisdiction of the SB, it will advise complainant to bring
the complainant to the office of the ombudsman. In
another instance when DOJ prosecution office receives a
complaint cognizable by the SB, it will immediately
endorse the matter to the OMB. (SO: upon receipt—
advise complainant to go to OMB; received complaint
already—immediately endorse the same to the OMB). In
a case of multiple respondents where one of the
respondents is cognizable by the SB, DOJ will remand the
case to the ombudsman. OMB and DOJ have
CONCURRENT JURISDICTION for the crimes by
government officers or employees who fall outside the
jurisdiction of the SB (first one who takes cognizance of
the case will proceed over the exclusion of other courts
provided further OMB MAY refer or endorse any
complaint to the DOJ if it is filed first therein—recognize
that OMB lacks resources to prosecute BUT IT CANNOT
BE REVERSED; IF THE MATTER IS FILED FIRST IN
THE DOJ, IT CANNOT REFER THE SAME TO THE
OMB)
Note: due to the MOA, our discussion in primary
jurisdiction of the Office of the Ombudsman is somehow
changed since when DOJ receives a complaint
cognizable by the SB, it will immediately endorse the
same to the OMB
140. Discuss the case against Leila de Lima. Why
was the same not forwarded by the DOJ to the
OMB? Because the DOJ, class WAS NOT OF
THE OPINION THAT THE SAME IS NOT
COGNIZABLE IN THE SB. It opined that the crime
committed by De Lima is cognizable in RTC not in
the SB, that is why it did not endorse the same to
OMB.
141. When is PI not required? Crime is punishable by
less than 4 years, 2 months and 1 day.
142. How do you initiate your complaint if PI is not
required? 2 modes of instituting—directly file a
complaint with Office of the prosecutor, or file
directly a complaint or information in the MTC
Note class: when you say “complaint directly filed in court”
is not the same as the “complaint filed in the prosecutor”.
The complaint directly filed in court is entirely separate
and distinct form that filed in the prosecutor. To be
sufficient in form and substance, the complaint filed
directly in court should have all the elements. IT MUST
BE IN THE NAME OF THE RP NOT THE NAME OF THE
COMPLAINANT. The second complaint filed in the
prosecutor’s class is just a simple complaint affidavit in
the NAME OF THE COMPLAINANT/ OFFENDED
PARTY.
Note further: In Manila and other chartered cities, there is
no other option but to FILE THE COMPLAINT IN THE
PROSECUTOR’S OFFICE for the prosecutor to
determine PC even if it does not require PI in the basis of
the documents submitted to it. The only difference is that
he will not anymore conduct a full-blown PI. BUT if you
are the counsel of the other party, you should insist to file
your counter-affidavit to the prosecutor so he can also
read your client’s defenses.
143. In the conduct of his investigation where PI is
not required, and the Prosecutor determines
PC, what should the prosecutor do? Prosecutor
may now file the information in court
144.Supposing the information is now filed in court
and you are the judge, what will you do? Judge
will determine PC and dismiss the same if he does
not find PC. Judge may issue a warrant of arrest if
PC is determined. But if the accused is already
arrested, he will issue a commitment order. If the
court finds there is no need to issue the same, he
may issue summons.
145. If the complaint is directly filed in MTC
because PI is not required, what will the judge
do? Sec 8, Rule 112. The judge should determine
PC by personally examining in writing and under
oath, the complainant and his witnesses in the
form of searching questions and answers. Judge
may also require the submission of additional
evidence within 10 days from notice. If the judge
finds no PC within 10 days, he will dismiss the
complaint. If the judge finds PC, he shall issue
WOA but if accused is already arrested, the court
shall issue a commitment order. When the judge
is satisfied that there is no necessity for placing the
accused under custody, he may issue summons
instead of a warrant. The judge will issue
summons so the COURT CAN ACQUIRE
JURISDICTION OVER THE PERSON of the
accused (JD over person is acquired through
arrest or voluntary submission to the JD of the
court). In civil cases, court acquires JD over
person of defendant by serving summons or
voluntary submission to the JD of the court.
However, when the judge issues a warrant based
solely in the statement of a witness who was not
even personally examined in writing and under
oath and in the form of searching questions and
answers, it may be said that he abused his
discretion in issuing a warrant.
146. Why does the court issue summons? When
the judge does not find the necessity to put the
accused in his custody or the crime is punishable
by fine only or the offense is charged under the
Rules of Summary Procedure.
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Criminal Procedure (Midterms) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 10
147. When can we dispense with PI even if it is
required? Valid warrantless arrest and the
accused is deemed to have waived his right to a
PI
148. What is an inquest? Summary proceeding
conducted when person is validly arrested without
a warrant involving even an offense which requires
a PI. Informal proceedings, summary in nature
(has to be decide by the prosecutor within a limited
period of time) if a person is LAWFULLY take note
LAW-FULLY arrested without a warrant, then the
prosecutor will conduct inquest proceedings
149. What is the purpose of inquest? Determine if
the accused has been validly arrested without a
warrant and whether the person detained should
remain under custody and then charged in court
150. What if the person is UNLAWFULLY arrested
without a warrant? The inquest proceeding will
not proceed. The inquest prosecutor shall
recommend the release of the detainee.
Prosecutor will determine if the detained person
has been lawfully arrested by summarily
examining the ARRESTING OFFICERS ON THE
CIRCUMSTANCES surrounding the arrest
151. During the conduct of PI, what should the
prosecutor do? Prosecutor should inform the
accused that he can avail of PI but the accused
shall execute a waiver under Article 125 of the
RPC
152. Supposing there is no inquest prosecutor and
the accused was validly arrested without a
warrant, what shall happen? An inquest may be
dispensed with. The rule allows the filing of the
complaint directly with the proper court by the
offended party or arresting officer.
153.Can a person arrested lawfully without a
warrant ask for PI? Yes, even when an inquest
should apply, a person may nevertheless ask for a
PI in accordance with Rule 112, before the
complaint or information is filed. However, he must
sign a waiver of the provisions of Art 125 of RPC
in the presence of his counsel.
154. Can the accused apply for bail even pending
resolution of the prosecutor? Yes. If your client
is already behind, your client has the right to post
bail in order to get that temporary liberty. Even
during inquest proceedings class, there is no need
to wait for PI. Even if the inquest has not yet
begun, once your client is already in the custody
of the law, you can already apply for bail. All you
need to present to the trial court is the affidavit of
the arresting officer. No need for that information
to be filed in court in order to apply for bail.
155. Where do you post bail? Where your client was
withheld.
156. Can a person still ask for PI even he already
posted bail? Yes, application for bail does not bar
the person to avail of PI
157. Is judgment of conviction valid even with the
absence of PI when it is required? It is invalid
since it is a denial of the person’s right to due
process, but it is a different matter if you raised it
properly in the right time then the trial court
disregards your request. Then in that case it is
already tainted with grave abuse of discretion.
158. Is it a ground for a motion to quash? No, it is
not one of the grounds enumerated in Sec 3, Rule
117
159. Who conducts the inquest? Inquest officers
who are prosecutors
160. When is inquest deemed to have
commenced? When inquest officer receives the
referral documents and complaint from the police
officer (SISA—statements of the complainant and
witnesses, investigation report, supporting
evidence gathered and affidavit of arrest)
161. What is the duty of the inquest officer?
Determine WON arrest was lawfully made without
warrant
162. When it is found that the arrest was lawfully
made without warrant, what shall he do?
continue with the inquest proceedings so that he
will determine WON accused will continue to be in
custody of the law. IO will first ask the detained
person if he desires to avail himself of a PI and if
he does, he must execute a waiver under Art 124
of the RPC with the assistance of counsel. PI may
be conducted by the IO or by any other Assistant
Prosecutor. If the IO finds PC exists, he shall
prepare the corresponding information with the
recommendation that the same be filed in court. If
no PC is found, he shall recommend the release
of the detained person.
163. When it is found that the arrest was unlawfully
made, what shall he do? Recommend the
release of the accused from detention. However, it
does not mean the accused is absolved from
liability. It cannot be a ground to preclude the state
from prosecuting its offenders. PI may be done
when the evidence warrants such (Notice of PI
served upon accused)
164. Can the prosecutor include VAWC even when
the culprits were arrested for concubinage?
No, the inquest conducted must be for the offense
for which the detainee was arrested.
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165. After they were arrested for concubinage, can
the prosecutor conduct another PI to
determine liability for VAWC? Yes, prosecutor
may conduct a separate PI for VAWC but the
inquest must proceed only with regard to
concubinage, the offense they were arrested for. If
the facts and circumstances would show that they
also violated VAWC, offended party may also
execute affidavits to conduct a separate PI.
166. First step in conducting PI. File a complaint
with the investigating prosecutor
167. What shall be the content of the complaint
filed with the prosecutor for PI? Address of the
respondent, affidavits of the complainant,
affidavits of his witnesses and other supporting
documents. Each respondent must be furnished a
copy and additional 2 copies for the official file.
168. Should it be subscribed? Yes
169. Why is it necessary? To present that the
document is not tainted with any malicious error
170. With whom shall be the affidavit be
subscribed to? Any public prosecutor or before
any government official authorized to administer
oaths. In their absence or in case they are
unavailable, the affidavits may be subscribed and
sworn to before a notary public.
171. If you are the prosecutor and you receive the
complaint, what shall you do next? Dismiss the
complaint if he finds no ground to conduct the
investigation or to issue a subpoena to the
respondent in case he finds the need to continue
the investigation, in which case the subpoena shall
be accompanied with a copy of the complaint and
its supporting affidavits and documents
172. Can the prosecutor immediately dismiss the
case if he finds no ground to conduct the
investigation? Yes, if he determines so within 10
days from the receipt
173. After issuing the subpoena, what shall the
prosecutor do? Order the submission of the
counter-affidavit
174. May the respondent gather or examine the
complaints or evidence against him? Yes, the
respondent has the right to examine such and to
copy them at his expense. If the evidence is
voluminous, the complainant may be required to
specify which of those he intends to present
against the respondent and these shall be made
available for examination or copying by the
respondent at his expense. Objects as evidence
need not be furnished to a party but shall be made
available for examination.
175. After the counter-affidavit is filed, a reply-
affidavit or rejoinder-affidavit are filed, is that
allowed? It may be allowed but the prosecutor
may inhibit as in the Rules, what is required is only
the counter-affidavit
176. What is the effect if the respondent will not
submit a counter-affidavit? The prosecutor will
resolve the complaint based on the evidence
presented by the complainant (ex parte
investigation—respondent cannot participate in
the proceedings)
177. What if the complainant puts in the wrong
address of the respondent? May the
prosecutor still resolve the case? Yes, the
prosecutor cannot know that the address is correct
or not. He will only rely on the information stated
in the complaint. For as long as he exhausted his
efforts to subpoena the respondent, he can
resolve the same ex parte. However, the
proceedings may be reopened to allow the
accused to submit his counter-affidavit upon a
proper motion to be done before the prosecutor
has issued a resolution. In that instance, you can
file a petition for bail unless it is bailable. But, you
can always file left-and-right cases against the
complainant who acted maliciously in stating your
wrong address, or even in such cases where there
was no deception on the part of the complainant.
Sometimes, that subpoena will not arrive or you
will receive such very late, your remedy is to post
bail and ask for you PI to be conducted.
178. What is meant by clarificatory hearing? Within
10 days from the submission of the counter-
affidavit or 10 days from the expiration of the
period for their submission, a hearing may be set
by the IO if there are facts and issues to be
clarified either from a party or a witness. It is not
indispensable and it is only within the discretion of
the IO. There is no right to cross-examine in a PI.
179. If there is PC, what shall prosecutor do? He
shall prepare both the resolution and information
with the certification. However, if there is no such
certification, the information is still considered
valid (it is the absence of PI that is not allowed).
Within 5 days from his resolution, he shall forward
the record of the case to the provincial or city
prosecutor or chief state prosecutor or OMB who
shall act on the resolution within 10 days from their
receipt thereof.
NO COMPLAINT OR INFORMATION MAY BE
FILED OR DISMISSED BY AN INVESTIGATING
PROSECUTOR WITHOUT THE PRIOR
WRITTEN AUTHORITY OR APPROVAL OF THE
PROVINCIAL OR CITY PROSECUTOR OR
CHIEF STATE PROSECUTOR OR OMB. THUS,
THE RESOLUTION OF THE INVESTIGATING
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Criminal Procedure (Midterms) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 12
PROSECUTOR MAY BE REVERSED
AFFIRMED.
180. If there is no PC, what shall prosecutor do? He
shall recommend the dismissal of the complaint.
181. What should the City Prosecutor do upon
receipt of the recommendation of the
investigating prosecutor? He may by himself
affirm or disapprove the recommendation of the
investigating prosecutor.
182. What if the City Prosecutor will not agree with
the recommendation of dismissal? He may, by
himself file the information against the respondent
or direct another assistant prosecutor or state
prosecutor to do so without conducting another PI.
183. Can you file an MR with respect to the
resolution of the prosecutor? Yes, within 15
days from receipt of the assailed resolution
184. May the City Prosecutor file an information in
court knowing for a fact that a petition for
review is pending with the Sec of Justice?
185. Supposing you are the respondent in that
case, what should you do? File for a motion for
the suspension of the arraignment. It is suspended
only for 60 days. After 60 days, the court will now
schedule your arraignment which will now resume.
The court cannot grant a suspension of
arraignment for more than 60 days, otherwise the
judge will be liable administratively. This is why
smart lawyers will file for motion for suspension of
proceedings which the court can grant based on
its sound discretion. The judge may or may not
grant, subject to his sound discretion. The judge if
he grants will simply put it to hold.
186. From DOJ, where will you go on tax matters?
Court of Tax Appeals not CA when matters are tax
and tariff offenses
187. What is your remedy from the decision of the
OMB in criminal matters? In CRIMINAL
MATTERS, OMB ruling shall be elevated to the SC
by way of Rule 65. Ruling of OMB is restricted only
to determining grave abuse of discretion. The
remedy is not certiorari under Rule 45.
188. What if it is on administrative matters by the
OMB? CA under Rule 43.
189. Records of the PI, is it part of the records of
the case? No, but the court, on its own initiative or
on motion of any party may order the production of
the record or any of its part when the court
considers it necessary in the resolution of the case
or when it is introduced as an evidence in the case
by the requesting party
OR 190. What shall the judge do upon the filing of the
complaint or information? Dismiss if there is no
PC (considered as a final order—appeal is the
proper remedy), issue the WOA if there is PC or if
there is doubt, order the prosecutor to submit
additional evidence.
191. What if the judge dismisses the case, what is
the remedy of the prosecutor? Notice of Appeal
to the CA because the dismissal of the judge is a
final order (Sec 1, Rule 122—ordinary rules on
appeal). Herein, there is no violation of double
jeopardy since the first jeopardy has not attached.
There is no arraignment.
192. What is there is already an information but
there is a pending appeal in the DOJ and
subsequently, he finds that there is no PC to
begin with. What will the prosecutor do? Follow
the orders of his superior (Note: our Secretary of
Justice is Vitaliano Aguirre II and our OMB is
Conchita Carpio Morales)
193. What will the judge do when he is presented a
motion to withdraw information? The judge
must make his independent judgment. Although
the recommendation of the prosecutor is
persuasive, it is the court’s bounded duty to
assess independently the merits of the motion. If
the case is filed in court, it is not automatic that the
judge will grant that motion for withdrawal. It is
always subject to the sound discretion of the court.
Any disposition of the case or dismissal or
acquittal or conviction rests upon within the
exclusive jurisdiction, competence and discretion
of the trial court (see: Crespo v Mogul).
194. What if the court granted that motion to
withdraw and you are the offended party, what
will you do? Appeal to the CA (?)
RULE 113—ARREST
195. What is arrest? Arrest is the taking of a person
into custody in order that he may be bound to
answer for the commission of an offense
196. How do you effect a valid arrest? Actual
restraint is not needed. A submission to the
custody of the person making the arrest already
constitutes an arrest.
197. What is you committed an offense in the
presence of a peace officer, how will you effect
the arrest? Officer shall inform the person to be
arrested his authority and the cause of his arrest
unless giving of the information falls under the
exceptions.
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
Note:
These are the Crim Pro Recitation Questions by Atty. Soleng
for Pre-finals. Some answers have been given but please
take note that these are not the 100% guaranteed correct
answers. Also, this may contain grammatical errors kay
kapoy na proofread. Sorry hehe God bless to us, guys!
CGDP
RULE 113—ARREST
1. What is arrest? Arrest is the taking of a person into
custody in order that he may be bound to answer for the
commission of an offense (Section 1, Rule 113)
2. How do you effect a valid arrest? Actual restraint is
not needed. A submission to the custody of the person
making the arrest already constitutes an arrest.
3. Why do we say that even if a person is already under
the custody of the law, JD over person is still not
acquired? For example, if the person arrested questions
the legality of his arrest (Motion to Quash his Arrest). In
that case, he is not submitting himself to the custody of
the law. It also does not mean that acquisition of JD over
person is equal to under custody of the law.
4. What is a warrant of arrest? Order issued by the judge
directed to a peace officer to arrest the person who is
sought to have committed the crime charged.
5. Requisites for the issuance of WOA. There must be a
probable cause personally determined by the judge
through personal evaluation by the judge of the
supporting documents submitted to him.
6. What if you committed an offense in the presence of
a peace officer, how will you effect the arrest? Officer
shall inform the person to be arrested his authority and
the cause of his arrest unless giving of the information
falls under the exceptions.
7. What are the requisites of a search warrant/ WOA
under the Constitution? (Section 2, Article 2,
Constitution) 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 search
warrant or warrant of arrest 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.
8. Does the judge have to personally examine the
witness in finding PC in issuing a WOA? The
constitutional provision does not mandatorily require the
judge to personally examine the complainant and his
witnesses. Instead, he may opt to personally evaluate the
report and supporting documents submitted by the
prosecutor (AAA v Carbonell)
The judge should not oblige complainant and witnesses
to appear in his sala. He may, however personally
evaluate the report and supporting documents submitted
to him.
1
9. Do you agree with the position of the SC on this
matter? Atty. does not agree with the position of the SC.
He insists on the mandatory nature of the constitutional
provision. But, SC IS ALWAYS CORRECT. This is a
clear cut case of judicial legislation. The intention of the
SC is noble but SC cannot just interpret the Constitution
like that.
Soliven v Makasiar: The constitutional provision is very
clear and mandatory in character. However, in this case,
SC said that the judge is not mandated to personally
examine. He may personally evaluate. This is primarily
for practical reasons to expedite the cases. The judge’s
time may be only allotted to personally examining the
complainant and his witnesses.
10. Why is it considered superfluous to file a motion for
judicial determination of PC? Judicial determination of
PC is already a duty of the court. There is no need for us
to file this motion. It already comes as a duty of course.
BUT, in practice, lawyers regularly file this as a reminder
to the court to re-assess its determination of PC. The
court will have the opportunity to understand where you,
as the accused’s defense is coming from.
11. How should the judge proceed with the
determination of PC? Section 8 (b), Rule 112. Judge is
duty-bound to personally evaluate the resolution of the
prosecutor and other supporting documents within 10
days from submission.
He may dismiss the case if he finds no PC. He may issue
WOA if he finds PC. If he is in doubt, he may require
prosecutor to submit additional evidence.
12. What if you are an MTC judge? He has an option to
personally examine the complainants and witnesses
under oath or affirmation. Personal examination by the
judge becomes an option of the court, only in a case
where there is a direct filing of the complaint or
information with the MTC since no PI has been
conducted. Direct filing to the MTC cannot be done in
chartered cities. Exception is when “otherwise provided
by law”.
Note:
RTC Judge—personally evaluate records or require
prosecutor to submit additional evidence.
MTC Judge—same as RTC Judge; BUT on matters
where complaint is filed directly to your sala, you
may (1) rely on the evidence presented or (2)
personally examine the complainant and his
witnesses under oath or affirmation in writing in the
form of searching questions and answers
(PERSONAL EXAMINATION IS NOT AVAILABLE AS
AN OPTION TO THE COURT WHERE PI IS
REQUIRED) or (3) require complainant to submit
additional evidence to satisfy his determination of
PC.
See Section 8, Rule 112.
13. What do you mean by “personal examination
blablabla”? It may in the form of an order or resolution.
Judge may order you to answer under oath the searching
questions and answers. The court may, based on the
evidence presented, want to clarify on some matters. The
judge will “propound questions in writing” and you will
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
have to answer in writing. In reality, this is not done by
judges usually.
Note: RTC Judge, in a criminal case, CANNOT issue
summons. He can only issue a WOA or commitment
order upon finding of PC. MTC Judge can issue
WOA, Commitment order or summons (usually
issued when penalty is not that serious)
14. Is there an expiration period for a WOA? Execution
must take place within 10 days from its receipt. Within 10
days after the expiration of the period, he shall make a
report to the judge who issued the warrant and state the
reasons for its non-execution. WOA is valid unless it is
quashed.
th
15. What if the warrant was executed on the 15 day, can
the accused move for a quashal of the warrant
th
because it was executed beyond the 10 day? No, the
arrest is not invalid. The WOA is valid unless it is
quashed. However, within 10 days after the expiration of
the period, the arresting officer should make a report to
the judge who issued the warrant and state the reasons
for its non-execution.
16. What is the duty of the arresting officer in executing
a warrant? Duty to deliver the person arrested to the
nearest police station without unnecessary delay. He
must only use such force as may be necessary. The
person arrested shall not be subject to a greater restraint
that is necessary for his detention.
17. Method of Arrest by an officer with a WOA, what does
he say? Inform person to be arrested the cause of his
arrest and the fact that a warrant of arrest has been
issued against him. However, the information may not be
announced if the person to be arrested flees, imperils the
arrest or forcibly arrested.
18. Should the WOA be in the possession of the
arresting officer? No, but it must be presented to the
person to be arrested as soon as possible when
requested by him.
19. If you are an arresting officer and you arrest me but I
resist and you have no fellow officers with you, what
will you do? Summon assistance of as many persons to
assist in the arrest (Section 10, Rule 113)
20. When can you arrest without a warrant? 3 instances
under Section 5, Rule 113. In flagrante delicto, Hot
pursuit and Escaping Prisoner.
21. How about a person who leaves the country while out
on bail? Person may be validly arrested without a
warrant if he leaves the country WITHOUT PERMISSION
of the court where his case is pending
22. What is a citizen’s arrest? Valid warrantless arrest
under the instances provided by Section 5, Rule 113 by
a private person
23. What is the Break Open Doctrine? Section 11, Rule
113. Officer may break into any building or enclosure
where the person to be arrested is or is reasonably
believed to be, if he is refused admittance thereto, after
announcing his authority and purpose
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24. What is the Break Out Doctrine? Section 12, Rule 113.
Whenever an officer has entered the building or
enclosure in accordance with Section 11, Rule 113, he
may break out therefrom when necessary to liberate
himself.
25. What are the requisites of in flagrante delicto
doctrine? Overt act done in the presence or within the
view of the arresting person
26. What is an overt act? Outward manifestation indicative
that the person has committed, is committing or is
attempting to commit a crime. It is determined based on
the facts and circumstances of a situation. It is on a case-
to-case basis.
27. Amminudin case. No outward act by descending down
a gangplank to indicate any criminal intent. Also, the
peace officers had sufficient time from acquiring the tip
or information to procure a WOA
28. Laguio case. Accused was merely walking from the
apartment and was about to enter a parked car when the
police arrested him. He was not committing any visible
offense then. Reliable information alone, absent any over
act indicative of a felonious enterprise in the presence
and within the view of the arresting officers, is not
sufficient to constitute probable cause that would justify
an in flagrante delicto arrest.
29. Molina case. An arrest made merely on the basis of
reliable information that the persons were carrying
marijuana is invalid. The accused were arrested while
inside a pedicab despite the absence of any outward
indications of a crime being committed.
30. Malacat case. No crime can be inferred from the fact that
the eyes of the person arrested were moving fast and
looking at every person passing by.
31. Mengote case. There was no offense which could have
been suggested by the acts of Mengote of looking from
side to side while holding his abdomen. These are not
sinister acts.
32. Claudio case. The act of the accused was unusual for a
traveller, hence, the suspicion of the agent was aroused.
Feeling that something was unusual, the trained
narcotics agent inserted his finger inside the buri-like
plastic bag from which emanated the smell of marijuana.
Accused was thereafter arrested.
33. Tangliben case. Police went to a bus station based on
reliable information and found suspicious activity by the
persons (bringing a red luggage). When asked to open,
it revealed marijuana leaves
34. Maspil case. Reports from informers showed that two
persons would be transporting marijuana, hence, the
police set up a checkpoint in Benguet. A jeepney was
flagged down and on board were the persons identified
by the informers who went with the police. When the
sacks in the jeepney were opened, marijuana was found.
They were then arrested. The arrest as valid because of
the sense of urgency. A jeepney on the road is not the
same as a passenger boat which ordinarily cannot
deviate or alter its course.
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Note: In these exceptional cases, SC created an
exception—that is when there is an urgency. For
example, when the police are given an on-the-spot
information and thereafter, they processed the said
information. Basically, it is the totality of the facts and
circumstances that surround the case that have to be
taken into consideration. For purposes of your bar
exams, always go back to the general rule! OVERT ACT
MUST BE SHOWN. You go to the exception if the specific
facts of the problem will fall under the exceptional cases
decided by the SC. The exception is so hard to prove,
mind you.
35. What is the validity of the arrest if it is a drug sniffing
dog? No Philippine jurisprudence on the matter.
36. What is a buy-bust operation? A police officer will act
as a poser-buy and pretend to buy drugs from the people
to be arrested.
37. Doctrine of hot pursuit. A crime has just been
committed and he has PC to believe based on personal
knowledge of facts and circumstances that a person to
be arrested has committed it. Immediacy is a very
important element.
38. What is the time needed for hot pursuit to still be in
effect? It is relative. As long as the there is immediacy
with regard to the “chase” conducted by the officers.
39. How about if an officer has been chasing a criminal
for 2 days straight? Is it still hot pursuit? Yes,
because he is actually pursuing the offender. There was
a pursuit without let up conducted.
40. Difference between in flagrante and hot pursuit? (Sec
5, Rule 113) In Flagrante delicto—in the presence or
within the view of the arresting officer; Hot Pursuit—
probable cause based on personal knowledge of facts
and circumstances that a crime has been committed
41. How is personal knowledge different in in flagrante
and hot pursuit? In flagrante—personal knowledge of
the crime happening, has happened or is about to
happen; Hot pursuit—PC based on personal knowledge
of facts and circumstances that a crime has been
committed
42. What are the rights of the accused? Right to remain
silent; right to be assisted by a competent and
independent counsel; right to be informed of these rights;
right to be visited by counsel, immediate family, municipal
mayor etc.
43. Can counsel confer with the accused at any time?
Yas, bitch. Because the accused needs to be assisted in
the protection of his rights.
44. How about his relatives? No, it cannot likened in all
fours to the rights of the counsel in relation to the
accused.
45. When is the time of an arrest made? How is it
different from the time that a search warrant is
made? Arrest—any day and at any time of the day or
night; Search—GR: during the day; EXC: when it is
stated in the warrant itself that the item to be seized is
with the person or can be seized during the night
3
46. What are Miranda Rights? (Watch 21 Jumpstreet hehe)
“You have the right to remain silent. Anything you say can
and will be used against you in a court of law. You have
the right to an attorney. If you cannot afford an attorney,
one will be provided for you. Do you understand the rights
I have just read to you? With these rights in mind, do you
wish to speak to me?”
47. How are confessions and admissions by an accused
treated in custodial investigation? It may be used
against if properly waived and in the presence of counsel
48. What is a custodial investigation? RA 7438—begins
as soon as the investigation ceases to be a general
inquiry into an unsolved crime and the interrogation is
then aimed on a particular suspect who has been taken
into custody and to whom the police would then direct
interrogatory questions that tend to elicit incriminating
statements; mere invitation to a person who is
investigated is included
49. Is counsel needed in custodial investigation at all
times? OF COURSE, BITCH
50. Can court still pronounce judgment on a person who
has been illegally arrested? Yes, deemed waived if not
questioned before plea.
51. When must the accused object to the validity of the
arrest? Before plea
52. May the illegality of the arrest affect conviction by the
court? Legality of the arrest affects only the JD of the
court over person; illegality of arrest, cannot in itself be
the basis for acquittal (not negate the validity of the
conviction)
53. If he fails to object to its validity what are his other
remedies? Herein, the only right waived is the right to
assail the arrest but accused cannot be deemed to have
waived the right to question the admissibility of the
evidence seized by virtue of the illegal arrest
54. If the accused has participated in the trial after plea
can he still question the validity of the arrest? No, it
is deemed waived. Accused has therefore submitted
himself to the JD of the court over his person.
55. What effect does the waiver of the illegality of the
arrest have on the admissibility of evidence? Nothing,
it does not preclude questioning the admissibility of the
evidence seized.
56. Who are the persons not subject to arrest? Members
of Congress when in session for offenses punishable not
more than 6 years. (EXACTLY 6 YEARS, HE CANNOT
BE ARRESTED); principle of reciprocity (RA 75)
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
RULE 126—SEARCH AND SEIZURE
57. What is a search warrant? Sec 1, Rule 126—A search
warrant is an order in writing issued in the name of the
People of the Philippines, 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.
58. What is the constitutional provision of a search
warrant? Sec 2, Article 3—The 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
search warrant or warrant of arrest 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
(BOLD—requisites of SW or WOA)
59. Difference of arrest and search and seizure? The
main difference is that in Arrest, it is the person himself
you are seizing. While in Search, it is personal property
that is the subject
60. Where will you apply for a search warrant?
GR: filed before any court within whose territorial
jurisdiction a crime has been committed;
EXC:
(1) before any court within the judicial region where the
crime was committed if the place of commission is
known;
(2) before any court within the judicial region where the
warrant shall be enforced
NOTE: IN BOTH EXCEPTIONS, compelling reasons
should be stated in the application
(3) only in the court where the criminal action is pending,
if the criminal action has already been filed.
61. How about those given by the NBI for heinous
crimes? See: AM 99-20-09-SC (dated January 25,
2000)—in cases involving HEINOUS CRIMES, ILLEGAL
GAMBLING, DANGEROUS DRUGS and ILLEGAL
POSSESSION OF FIREARMS, Executive Judge and
Vice Executive Judge of RTC of Manila and QC filed by
PNP, NBI, PAOC-TF, REACT-TF are authorized to act
on all applications for search warrants (these warrants
may be served in places outside the territorial JD of said
courts)
62. Difference of PC in arrest and PC in SW. Arrest—crime
has been committed and the person to be arrested has
committed it; Search—particular things connected with a
crime are found in a specific location.
63. May the judge rely on the statement based on reliable
information for the issuance of SW? No, he must
personally examine complainant and witnesses on the
facts personally known to them. Likewise, he cannot just
rely on affidavits. He must personally examine them
through searching questions and answers.
64. SW can be filed ex parte, what does this mean? Judge
can rely on the affidavits of the complainant and his
witnesses, no notice should be given to the person to be
searched.
4
65. What are the properties subject to a search warrant?
Personal property indicated therein (subject, fruits and
those used as a means in committing the crime)
66. Why are real properties not subject to a search
warrant? No, only personal property are allowed to be
subject of a search.
67. When you stole the Mona Lisa and put it to the wall
and mounted it with the intention of permanency, can
that be considered immovable property? No,
paintings are considered immovable only when placed by
its owner with the intention of placing it there
permanently.
68. What is meant by searching questions and answers?
Questions not merely answerable by yes or no but
could be answered by the applicant and the witnesses on
facts personally known to them. It must be probing and
exhaustive—not just rehash on the facts stated in the
affidavits.
69. What is a leading question? Questions which suggests
to the witness the answer to the question. Most often, it
is answerable with a yes and no. Therefore, in personal
examination for the issuance of a SW, judge cannot ask
leading questions. Otherwise, judge is asking questions
that are not probing or exhaustive.
70. Requisites of a SW.
(1) PC—facts and circumstances that would engender a
well-founded belief in a reasonable prudent and discreet
man that a crime has been committed and the things and
objects to be seized can be found in the place to be
searched;
(2) searching questions and answers by the judge; (3)
upon the complainant and witnesses he may produce,
personally examined by the judge, in writing and under
oath;
(4) applicant and witnesses testify on facts personally
known to them;
(5) PC must be in connection with a specific offense;
(6) describes person, place and things to be searched
and seized with particularity;
(7) sworn statements with affidavits must be attached to
the record.
71. Is the failure to attach the records/ transcripts of the
personal examination by the judge invalidate the
SW? No, it is merely a procedural defect. What
invalidates the SW is the absence of the personal
examination duly conducted by the judge.
72. May the court which issued the SW also quash the
SW? Yes, he may quash the same. See Sec 14, Rule
126.
73. Is the quashal of the SW valid upon the reason that
the evidence obtained during Search is not sufficient
to hold person for trial? No, otherwise, the TC then
raised the standard of PC for a SW to whether there was
sufficient cause to hold petitioner for trial. In doing so, TC
committed grave abuse of discretion.
74. In a situation wherein a search warrant is made for
guns in a specific cabinet in the suspect’s house,
and when the officers open the cabinet they find
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shabu is it admissible as evidence? Yes, under plain
view doctrine, the shabu is admissible as evidence.
75. In the same situation, if they opened the cabinet and
found the guns but they also looked under a sofa and
found drugs what happens to the drugs? The drugs
can be confiscated because it is a contraband, but cannot
be used as evidence as it is fruit from the poisonous tree
76. Why should the place be particularly described?
Officers who will execute the SW will not have the
discretion to search other places?
77. Should the applicant know the place to be searched?
Yes, otherwise how else would the judge know what
place to be searched to be indicated in the SW.
78. Should the occupant of the place to be searched be
named in the SW? Yes, however the failure to name the
owner or occupant in the affidavit and SW does not
invalidate the warrant. where the name of the owner is
incorrectly inserted, it is not a fatal defect if the legal
description of the premises is otherwise correct that no
discretion is left to the officer making the search as to the
place to be searched.
79. Test of determining the sufficiency of the description
of the person in the SW. For as long as the person is
sufficiently described in the warrant and the police
officers can set him apart from other persons.
80. Test of determining the sufficiency of the description
of the place in the SW. Nothing is left at the discretion
of the executing officers with regard to the premises to be
searched.
81. What if the address in the SW is erroneous to where
the officers conducted the search? What is controlling
is the address stated in the SW not to where the officers
conducted the search. But, WHAT IS ESSENTIAL is the
officers know for certain and can pinpoint where the
warrant can be served. (e.g., SW: “A. Cortes St., Cebu
City” searched at A. Cortes St., Mandaue, VALID:
because there is no A.Cortes St. in Cebu City)
82. Test of determining the sufficiency of the description
of the things in the SW. Nothing is left at the discretion
of the executing officers with regard to the things to be
searched and seized.
83. What should be the subject of a SW? subject of the
offense, embezzled or stolen or fruits of the crime or
things used as a means in commission of a crime
84. What is a general warrant? It is a warrant that allows
broad discretion or authority to law enforcement officers
to search and seize unspecified places and things due to
the lack of particularity in its description. It also does not
specify any particular offense in relation to a specific law.
85. What is reasonable restriction? The description in the
search warrant is:
(1) as specific as the circumstances will ordinarily allow;
(2) expresses a conclusion of fact – not of law – by which
the peace officers may be guided in making the search
and seizure; and
(3) limits the things to be seized which bear direct relation
to the offense for which the warrant is being issued. (see
P.269, Riano 2017)
5
86. Does it require that the property to be seized should
be owned by the person against whom the search
warrant is directed? No, the warrant does not need to
specify the owner of the thing to be searched and seized.
It is enough that the person stated is one who has control
and possession of the thing.
87. Case of Stonehill v Diokno. Books of accounts,
financial records, vouchers etc. were deemed too broad
and general because it authorized the search and seizure
fo records pertaining to all business transactions of
petitioner herein, regardless of whether the transaction
were illegal or legal.
th
88. Case of 20 Century Fox Film Corp v CA. television
sets, video cassette recorders, rewinders etc. used or
intended to be used in the unlawful reproduction, sale,
rental/lease, distribution of the above-mentioned video
tapes which she is keeping and concealing in the
premises above-described
89. What is a John Doe Warrant? John Doe warrant is the
exception of stating the name of the person to be
searched with particularity. For as long as the officers can
properly distinguish the person to be searched apart from
the others - description personae
90. Example of John Doe Warrant. John Doe living in
Perez Building medium-sized man with a heart-shaped
tattoo in the face hehehe
91. What if what is indicated in the SW is the bedroom of
X, can officers search the adjoining room of such
bedroom? No, the search should only be limited to the
bedroom as stated in the warrant.
92. Can the officers search the bathroom of X for drugs
and paraphernalia when the warrant states “house of
X”? Yes, the bathroom is included in X’s house. Drug
paraphernalia may also be found in his bathroom.
93. Can the officers search the barn next to the house of
X in the preceding example? No, the barn is different
and distinct from the house as indicated in the SW.
94. Can the search warrant only indicate “materials used
for abortion”? Yes, the judge is allowed a degree of
liberality in not being able to describe the items to be
seized with utmost detail. For as long as the seizure of
the items is warranted as it can be a subject of a SW and
the officers have no discretion in executing such, it
cannot invalidate the SW.
95. The SW indicated the house of Y to be searched, at
the same time X was there, can the officers conduct
a search on X? No, the search cannot extend to the
authority to search all persons in the place. The officers
have no PC to search and detain a person not
particularized in the warrant.
96. What is the validity of the SW? 10 days, after which, it
will expire
97. When should it be executed? General rule—during
daytime.
98. When can you execute the SW during nighttime?
When the affidavits state that the effects are with the
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
person and the judge directs that the SW can be served
at anytime.
99. Proper way of implementing a SW. officer should
knock, introduce himself and announce his purpose.
Remember, only when he is refused admittance that he
can break into the house. The search shall be made in
the presence of the lawful occupant of the house or any
member of his 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.
100. Can you immediately break open in serving the SW?
No, an officer can only break open in serving the SW
upon being refused entry thereto after announcing his
authority and purpose or in order to get away from the
premises.
101. Duty of the executing officer after serving the
warrant? He must give a detailed receipt for the same to
the lawful occupant in the premises in whose presence
the search and seizure were made (Duty of officer
seizing the property). Then, officer must deliver the
property seized to the judge who issued the warrant, and
deliver a true inventory of the property seize which must
be verified under oath (Duties of the officer after the
search and seizure)
102. Duty of the judge issuing the warrant after its
execution. Ascertain if the return has been made 10
days after the issuance. If no return, he shall summon the
officer and require him to explain why no return was
made. If the return has been made, he shall ensure the
compliance with the requirements for:
(1) issuance of a detailed receipt for the property
received;
(2) delivery of the seized property to the court; and (3) a
verified true inventory of the items seized.
The judge, in neglect of his duties during the entire
proceeding of procuring a search warrant, may be held
administratively liable for gross ignorance of the law.
103. Who should have the custody of the items seized?
The court who issued the search warrant (?).
104. Who should have the custody of the SW? the return
of the search warrant shall be filed and kept by the
custodian of the log book on search warrants and enter
the:
(1) date of the return;
(2) the result; and
(3) other actions of the judge.
105. When should you file motion to quash SW? Before
plea during arraignment.
106. Where should you file motion to quash SW? General
Rule: before the court where the action has been
instituted
Exception: if no criminal action has been instituted,
before the court that issued the warrant
Exception to the Exception: if the above court failed to
resolve the motion and a criminal case is subsequently
filed in another court, the motion shall be resolved by the
latter court.
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107. Can another person file a motion to quash SW and
not by the person who is searched? No, questioning
the SW is a personal right. It cannot be exercised other
than that of the one who was searched.
108. May a partnership or corporation question the SW?
No, the corporation cannot question the SW as the same
does not have the requisite personality to question the
same.
109. What are the remedies of the accused?
(1) Motion to quash search warrant;
(2) Motion to suppress evidence
110. What is the remedy for the quashal of the SW?
Determine if the quashal of the SW is a mere
interlocutory order or a final order.
111. What is the remedy of the quashal of SW as a mere
interlocutory order? Rule 65 of the CA (must file MR
before Rule 65)
112. What is the remedy of the quashal of SW as a final
order? Ordinary appeal, not Rule 65 since ordinary
appeal is the next adequate remedy provided.
113. What are the exceptions to procuring a search
warrant?
(1) Search incidental to a lawful arrest;
(2) plain view doctrine;
(3) search of a moving vehicle;
(4) consented warrantless search;
(5) customs search;
(6) stop and frisk or Terry search;
(7) exigent and emergency circumstances;
(8) search of vessels and aircraft.
114. What is a search incidental to a valid arrest? Search
that can be validly done without a warrant pursuant to a
valid arrest that preceded such search.
115. May the search precede the arrest? No, the arrest
must always precede the search, otherwise, it cannot be
considered as “search incidental to a valid arrest”
116. What if the thief you caught swallowed all the gems
he stole, can you bring said person to the hospital
and see if the gems were truly ingested? Yes, the
arrest herein was lawful, either through a WOA or falls
under the exceptions. (BUT WALA NIYA GITUBAG
HUHU)
117. What are the permissible areas to search under this
exception? Permissible area within person’s reach and
immediate person of the accused
118. Purpose. To ensure the safety of the arresting officer
from dangerous weapons that may be used against him
and to preserve evidence that may be destroyed by the
accused.
119. X was validly arrested through a WOA, can the
person be arrested? Yes, of course. Provided that the
WOA is validly issued, the person indicated can be validly
arrested by virtue of such.
120. Can his house be searched? No, his house cannot be
deemed as the permissible area within his reach or his
immediate person.
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121. What if the person to be arrested at the time of arrest
was in his car, can his car be searched? Yes, provided
that it is within the permissible area within his reach or his
immediate person.
122. However, when the officers opened his hood, they
found 20 lbs of shabu, is that valid? No, the hood is
not considered a permissible area within his reach.
Hence, the search is not considered incidental to a valid
arrest.
123. What if X was arrested in his sala and he was
handcuffed by the arresting officers, can the officers
seize the firearm duly showcased in his sala? No, first
of all, the firearm is not within his immediate area of
reach. Also, even in the context of the plain view doctrine,
the firearm cannot be seized since the officers do not
have proof that there was no license to possess such.
(please recheck this with others, I am not so sure about
this)
124. Nolasco v Pano. Accused was arrested at 1130 am in
the streets of Quezon City. On the same day at 12 noon,
the officers searched his home armed with a SW.
however, in its issuance, judge did not personally
examine the complainant. Prosecutor argued that it was
a search incidental to a lawful arrest. But, SC said it was
not a search incidental to a lawful arrest. The search was
made not within the immediate control of the accused.
125. Supposing you are a drug pusher. While you are
preparing for school, you were arrested by a police
officer through a WOA. They searched your person
and found a kilo of shabu. The officers asked you if
you have more drugs. You said yes in your house.
When the officers went to your house, the search
yielded to more kilos of shabu. Can the evidence be
used against you? The evidence seized at the gate can
be used against you but the evidence from the house
cannot. It is not a search incidental to a lawful arrest as
the house is not within your immediate search. It also
cannot be considered as a consented search.
126. Supposing due to the rampant reports of drugs, a
checkpoint was conducted and the search was made
to a vehicle. It yielded kilos of shabu. Can the shabu
be used against the vehicle owner? No, although
search of a moving vehicle is allowed, extensive search
can only be conducted when there is PC in relation to the
car being searched.
127. Can checkpoints warrant a bodily search of the
persons inside or an extensive search? No, you
cannot conduct a body search or an extensive search of
the vehicle without the existence of a PC.
128. What is your concept of a valid checkpoint search?
Vehicle must only be subject of a visual search and
conducted in the least intrusive manner. Absent PC to
conduct extensive search or body search, such cannot
be done unless passengers validly waive the right. Police
officers have no right to order you to come down and
open your hood etc. If you are riding a motorcycle, police
officers cannot order you to come down and open your
toolbox. That is not the proper way to conduct a
checkpoint search.
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129. In the house owned by X, a police officer was invited
as a guest. While there, he saw this plastic material
hanging in the door, but, he cannot see what was
inside. When he passed the door, he was able to
detect that it was marijuana leaves inside because he
sniffed the plastic box. He seizes it and filed a case
against X. Can it prosper? No, although there was a
valid intrusion on his part, the object was not open to his
sight or hand. He could not see what was inside the bag
and marijuana leaves cannot be known just by mere
touching or feeling the bag. Sense of smell is not
included.
130. In the house owned by X, a police officer was invited
as a guest during the fiesta. While there, he saw this
plastic (transparent) material hanging in the door. He
was able to detect that it was marijuana leaves
inside. He seizes it and filed a case against X. Can it
prosper? Yes, the object falls in the plain view doctrine.
The plastic bag is transparent where it is apparent to him
that the bag contains marijuana leaves.
131. Difference of entrapment and instigation.
Entrapment—ways and means are resorted to for the
purpose of capturing violators (who have ALREADY
DECIDED to commit the crime). Instigation—accused is
induced to commit the crime (he has NOT YET DECIDED
to commit the crime). The police officer becomes a
principal by inducement
132. Concept of 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
133. Requisites for plain view doctrine to apply.
(1) officer has a prior justification for an intrusion or is in
a position from which he can view a particular area (Valid
Intrusion);
(2) discovery of the evidence is inadvertent; and (3) the
evidence is immediately apparent to the officer that the
item he observes may evidence of a crime.
134. What is inadvertence? Officer must not have known in
advance the location of the evidence and discovery is not
anticipated. There must be no specific intention to look
for the thing.
135. Person was armed with a SW to search the garage
of X. allegedly, there are drug paraphernalia therein.
When you tried to implement the SW, you saw a
toolbox. When you opened the toolbox, you saw a
closed receptacle. Upon opening the receptacle, you
saw a hand grenade. Can it be used against the
accused? Yes, all the requisites are present. They were
there by virtue of the SW. They only found the grenade
during their search for the drug paraphernalia that may
be presumed to be contained inside the toolbox. During
their search, they were able to stumble upon the
grenade, so it can be said to be inadvertently found. It
was not wrongful to open the box, because he was there
on a purpose to check, locate and seize the drugs and its
paraphernalia. When he opened the box, it became
readily apparent to him. The contraband became readily
apparent to him subject to the valid seizure. Worthy to
note is that the grenade at first was not apparent, but the
condition was complied when the officer validly opened
the receptacle. Supposing if it is not validly opened, the
search is not valid.
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
136. Can you use your sense of smell in plain view
doctrine? No, what is included is only the sense of touch
and sight.
137. People v Hua (2004—on prior valid intrusion). The
constitutional proscription against unreasonable search
and seizure applies to Filipino citizens, as well as to
aliens temporarily residing in the country. Generally,
officers implementing a search warrant must announce
their presence, identify themselves to the accused and to
the persons who rightfully have possession of the
premises to be searched, and show to them the search
warrant to be implemented by them and explain to them
said warrant in a language or dialect known to and
understood by them. Unless the person to whom the
warrant is addressed and whose property is to be
searched is notified of the search warrant and apprised
of the authority of the person serving the warrant, he may
consider the unannounced intrusion into the premises as
an unlawful aggression on his property which he will be
justified in resisting, and in the process, may cause injury
even to the life of the officer implementing the warrant for
which he would not be criminally liable. Additionally,
arresting a person not named in the search warrant is not
proscribed when the arresting officers have probable
cause for such warrantless arrest.
138. Abenes v CA. This Court has ruled that not all
checkpoints are illegal. Those which are warranted by the
exigencies of public order and are conducted in a way
least intrusive to motorists are allowed. For, admittedly,
routine checkpoints do intrude, to a certain extent, on
motorists’ right to "free passage without interruption," but
it cannot be denied that, as a rule, it involves only a brief
detention of travelers during which the vehicle’s
occupants are required to answer a brief question or two.
For as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the inspection
of the vehicle is limited to a visual search, said routine
checks cannot be regarded as violative of an individual’s
right against unreasonable search. In fact, these routine
checks, when conducted in a fixed area, are even less
intrusive. The checkpoint herein conducted was in
pursuance of the gun ban enforced by the COMELEC.
The COMELEC would be hard put to implement the ban
if its deputized agents were limited to a visual search of
pedestrians. It would also defeat the purpose for which
such ban was instituted. The "plain view" doctrine applies
when the following requisites concur: (a) 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…
Note: Prior valid intrusion—for as long as your presence
there is valid and you are not intruding in that space,
plain view doctrine can still apply. It does not mean that
you are armed with a SW.
People v Cubcubin Jr and People v Leangsiri: “What the plain
view cases have in common is that the police officer in each
of them had a prior justification for an intrusion in the course
of which[,] he came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to supplement
the prior justification whether it be a warrant for another
object, hot pursuit, search incident to lawful arrest, or some
other legitimate reason for being present unconnected with a
search directed against the accused and permits the
warrantless seizure. Of course, the extension of the original
8
justification is legitimate only where it is immediately apparent
to the police that they have evidence before them; the plain
view doctrine may not be used to extend a general exploratory
search from one object to another until something
incriminating at last emerges”
139. What is a Terry Search? The officer has a reasonable
belief based on a genuine reason and in light of the
officer’s experience and the surrounding circumstances,
that a crime has either taken place or is about to take
place and the person to be stopped is armed and
dangerous.
140. Are you saying a police officer can just stop and
frisk everyone all the time? No, there must be genuine
reason on the part of the officer, in accordance with his
experience and surrounding condition to warrant the
belief that a person to be searched has weapons or
contraband concealed.
141. What are the parts of the Terry Doctrine? A valid
“stop”—reasonable and articulable belief that criminal
activity has happened or is about to happen; valid
“frisk”—mere pat down outside the person’s outer
garment
142. What is the test for the validity of this doctrine?
Genuine reason—based on “specific and articulable
facts” and not merely upon bare suspicion or hunch. It
must be on the light of an officer’s experience and
surrounding circumstance.
143. Why is a Terry Search allowed?
(1) general interest of effective crime prevention and
detection; and
(2) safety of the police officer to take steps to assure
himself that the person with whom he deals with is not
armed with a deadly weapon that could be used against
him
144. Is Terry stop considered an arrest? No, it only
pertains to the search about to be conducted in the “frisk”.
It does not fall in any of the enumerated exceptions of a
search.
145. So after Terry Stop, you cannot be arrested? Not
necessarily. If the search yields a contraband, the officer
then can arrest the person on the basis of in flagrante
(possession of the drugs is already considered a crime).
146. Search incidental to a lawful arrest vs. Terry stop
that results to an arrest. In the former, the arrest must
precede the search. In the latter, the search is done prior
to the arrest, provided there is a contraband that is seized
on the person of the accused.
147. What is a consented search? Person to be searched
voluntarily and validly consents the officer to conduct the
search.
148. Requisites of a valid waiver.
(1) right exists;
(2) knowledge of such right; and,
(3) actual intention to relinquish the right.
149. Consent. It must be unequivocal, specific and
intelligently given, uncontaminated by any duress and
coercion.
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150. Can you refuse a police officer to open your bag and
search it? Yes, you can. You have this right granted by
the Constitution.

151. If the police officer asks you to open your bag and
you open it, is your act of opening the bag
considered a consent? If you by your own volition and
intention, open your bag without any intimidation given by
the officer, then it may be considered as consent. Your
intention to relinquish must be clear and convincing.

152. Proverbial fruits of the poisonous tree. Evidence

illegally obtained during the unreasonable search.

153. Doctrine of exclusionary rule. Evidence obtained by

virtue of an unlawful search and seizure shall be
inadmissible for any purpose in any proceeding.

154. Non-exclusionary doctrine. See Stonehill v Diokno.

This is the FORMER rule. Evidence seized by the police
officer can always be used against the accused. The
reason is, the state should not suffer by reason of the
person who made the search. In effect, all the evidence
taken by the officer can be used against the accused.

155. What if a police officer asks for the issuance of a SW

on improper grounds, can there be sanctions or
liabilities against you if it is illegally issued? Officer
may be held liable civilly for damages based on an
independent civil action.

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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
RULE 114—BAIL
156. What is bail? Security given for the release of a person
in custody of the law.
157. Who is a bondsman? Person who provides the bond in
behalf of the accused.
158. Purpose of bail. To secure a provisional release on the
accused and guarantee his appearance when asked by
the court
159. Can you waive your right to bail? Yes, it is a personal
right and that person can validly waive such.
160. What is your basis for your right to bail? Sec 13,
Article 3. 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.
161. X was charged with murder, evidence of his guilt was
not strong. He was allowed bail. However, trial
ensued and the court convicted him of the crime. In
the decision, he was also held civilly liable. Can the
bail be used to pay his civil liability? No, it cannot be
used to pay his civil liability. The reason for the bail is for
a different purpose not allowed to cover civil liability.
162. Can the bail be used to pay fines and costs? Yes, it
is noted that although it cannot be used to pay off civil
indemnity, the bail bond may be used to pay off fines and
costs. The excess would be returned to the person.
163. Can a person practice his profession while on
preventive detention? No, basically because of the fact
that he is still on preventive detention. What is needed
first is for him to apply and post bail to secure his
provisional release.
164. What is preventive detention? If there is no judgment
yet, that is still preventive detention. You are only there
by virtue of a valid arrest.
165. What if he is serving his final sentence already? If
there is already a final judgment, the accused cannot
post bail anymore, in case of conviction. In effect, he
cannot anymore practice his profession.
166. Who may post bail? Accused himself or a bondsman
167. Any and all crimes are bailable. What is the
exception? Where the offense is punishable by RP, LI
AND evidence of guilt is strong
168. What is the writ of habeas corpus? (Remember: The
right to bail is not impaired even when the privilege
of the writ of habeas corpus is suspended) It is a writ
or order by a judge requiring that a prisoner be brought
before a judge or into court to decide whether he is being
held lawfully.
169. Why is that even if the writ of habeas corpus is
suspended, right to bail is not affected? The person is
yet to be proven guilty for a crime cannot be held in
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custody of law without even granting the option of posting
bail (springs from presumption of innocence).
170. What is excessive bail? Excessive bail is when the
amount of bail is set much more than or higher than
necessary to ensure accused’s presence before the court
when required.
171. Is the financial capacity of a person being
considered in determining the amount of bail? Yes, it
is considered but not limited to just that factor. The
principal factor considered is the probability of the
appearance of the accused, or of his flight to avoid
punishment.
172. What are the other factors considered?
(1) financial capability;
(2) nature and circumstances of the offense;
(3) penalty of the offense charged;
(4) character and reputation of the accused;
(5) age and health of the accused;
(6) weight of the evidence against the accused;
(7) probability of the accused appearing at the trial;
(8) forfeiture of other bail;
(9) fact that the accused was a fugitive when arrested;
(10) pendency of other cases where the accused is on
bail
173. X was broke as in nothing jud. Should the bail be
fixed at zero? The accused may file for a motion to
reduce bail.
174. X was accused of murder. Bail was approved on the
ground that evidence of guilt is not strong. However,
trial court convicted him guilty of murder. Was the
court correct? Yes, the quantum of evidence for
granting or denying bail and conviction is different. What
is needed to grant or deny bail is evidence of guilt as
strong. In conviction, it is guilt beyond reasonable doubt.
The evidence presented during the actual trial may be
comprehensive enough to convict the accused, and the
same that evidence presented during the bail hearing
which is summary in nature and the court found that
evidence of guilt is not strong.
175. What if he was convicted by the RTC? Can he still
post bail on appeal? No, his guilt has already been
proven beyond reasonable doubt. Obviously, his
evidence of guilt is strong, as well as remembering that
murder is punishable with reclusion perpetua.
176. Can he insist to increase the bail instead? No,
herein, his right to bail is not available to him. The
Constitution and Rules of Court are very explicit.
177. Why is bail not available in the military? It is not
allowed considering their unique structure and their
different set of skills that would make them more
dangerous than an ordinary person, if released on bail.
What is given more emphasis in the military is the right to
a speedy trial.
178. What if the accused who is a military is not tried in
the court martial, but rather in the RTC, can he post
bail? Yes, because his right to bail is only curtailed when
he is tried in the court martial. (re-check please)
179. In extradition cases, may the extradite post bail?
Yes, as held in Government of Hongkong Special
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
Administrative Region v Olalia, the State’s power to
deprive an individual of his liberty is not necessarily
limited to criminal proceedings.
180. How about in deportation proceedings? As also
mentioned in Government of Hongkong case, as held in
a long line of Philippine jurisprudence, bail is also granted
in deportation proceedings. The right to bail is not,
however a matter of right but a matter of discretion on the
part of the Commissioner of Immigration and
Deportation.
181. Difference between deportation and extradition.
Extradition is police assistance extended by a state to
arrest a person charged with a crime in another state and
surrender him to the authorities of that state. The power
to arrest by the assisting state is legitimized by a treaty.
Please take note that Extradition proceedings are not
criminal in nature nor civil but sui generis (class in itself).
Deportation is defined as an administrative means in
which a foreigner who is sojourning or residing in a
foreign country is removed or deported to his own country
after being adjudged by competent authority to be in
violation of immigration laws or has been declared a clear
and present danger to the tranquility of the community
where he is
182. Under what circumstances that a person may be
allowed to post bail in extradition proceedings?
Applicant bears the burden of proving the 2-tiered
requirements:
(1) once granted bail, applicant will not be a flight risk or
a danger to the community
(2) there exists special, humanitarian and compelling
circumstances
Applicant must prove with clarity, precision and emphatic
forcefulness.
183. Rights and obligations of a bondsman. To surrender
the accused to the court for the execution of the final
judgment. He may arrest the accused for the purpose of
surrendering him to the courts. This is because once the
obligation of bail is assumed, the bondsman becomes the
jailer of the accused and is subrogated to all the rights
and means which the government possesses to make his
control over him effective.
184. X was arrested and placed under custody of the law.
He escaped the detention facility. Thereafter, he
approached a bondsman to post his bail. Advise. Bail
cannot be availed of by one who is not in custody of the
law. It would be incongruous to grant bail to one who is
free. Likewise, it is not allowed to petition for bail for
someone whose freedom has yet to be curtailed.
Therefore, an application for admission to bail by one
who is at large is premature.
The rationale is to discourage and prevent the practice
where the accused could just send another in his stead
to post his bail, without recognizing the jurisdiction of the
court by his personal appearance.
185. How does the court again acquire jurisdiction over
the person of the accused? Valid arrest or voluntary
submission (which includes voluntary surrender,
participation during trial, etc.)
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186. Should the trial court act on the pleading for Motion
to Quash Information submitted to it by one who is
not in custody because he escaped? Yes, the trial
court need not have custody over the accused in order to
act on the pleading submitted to it. It is only bail that
requires first, custody of the law.
187. Can X, in the above case, direct his lawyer after his
re-arrest from escaping, to post bail on and in his
behalf? Yes, because by virtue of his re-arrest, there is
already custody of the law. Therefore, he may post bail
(but naglibog ko ani tungod sa phrase na “post bail on
and in his behalf”)
188. Can a person who is hospitalized but is arrested be
allowed to post bail? Yes, an accused who is confined
in a hospital, may be deemed to be in the custody of the
law if he clearly communicates his submission to the
court while confined in a hospital. This is called
Constructive Custody. This is the exception to the
general rule which requires prior custody of the law to be
allowed to post bail. (Defensor-Santiago v Vasquez)
189. When does your right to bail commence? The
moment he is in the custody of the law subject to the
exception for Constructive Custody.
190. When are you deemed to be in the custody of the
law? If there is a restraint on the person. It is literally
custody over the body of the accused. It includes but is
not limited to detention. This is where the liberty of your
client is being deprived.
191. Is a warrant of arrest sufficient to make one in the
custody of the law? No, you need to be under the
custody of the law (General Rule).
Note: YOU SHOULD NOT WAIT for the information to
be filed in court, or the inquest or PI proceedings to
finish. AS LONG AS YOUR CLIENT is behind bars or
his freedom is being restrained (being under the
custody of the law), apply for bail right away, subject
to certain exceptions (e.g. offense punishable by RP
when evidence of guilt is strong)
192. Can a judge insist on first going through
arraignment before entertaining an application for
bail? No, grant of bail should not be conditioned upon the
prior arraignment of the accused. In cases where bail is
authorized, bail should be granted before arraignment;
otherwise, the accused will be precluded from filing a
motion to quash which is to be done before arraignment.
To condition the grant of bail on his arraignment would
be to place him in a position to choose between:
(1) filing a motion to quash or question the validity of his
arrest (and thus, delay his release until his motion
can be resolved because prior to its resolution, he
cannot be arraigned);
(2) foregoing the filing of a motion to quash (so that he
can be arraigned at once and thereafter be released
on bail)
Remember, if X was arrested Friday evening, your
priority is to have your temporary liberty on Monday
morning. Therefore, if you require arraignment before
application for bail, you are basically curtailing the
accused’s right to the remedies granted to him that
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should be filed before arraignment (e.g. motion to quash
or question the validity of the arrest)
193. May a person who is NOT under the custody of the
law allowed to post bail, other than the previous
example of Miriam Defensor? Yes, bail may likewise
apply to a material witness. Bail to secure the
appearance of a material witness does not require prior
custody of the law. It is only when he refuses to post bail
shall he be committed to prison. Therefore, herein, even
though the person did not commit any crime or there is
no custody of the law over him, bail may still apply to him.
When the court is satisfied, upon proof or oath, that a
material witness will not testify when required, it may,
upon motion of either party, order the witness to post bail
in such sum as may be deemed proper (Requirements
for Bail to apply to Material Witness). If he refuses to
post bail, the court shall commit him to prison until he
complies or is legally discharged after his testimony is
taken.
The task to produce witnesses is the task of the
prosecutor or the accused who may need them for his
defense, but of course you may ask the aid from court.
Hence, a subpoena may be issued. But remember, a
subpoena cannot be invoked abroad. So, your remedy is
to ask the trial court to ask the witness to post a bond to
secure the material witness to testify in court, provided
that the court is satisfied with the proof of the importance
of the material witness and the high probability of him
disappearing.
194. Where are you supposed to post your bail?
As a general rule, it may be filed with the court where
the case is pending. If the judge is absent or
unavailable, it may be filed with any RTC or MTC judge
in the P, C, M. If there is no showing that the judge of
the court where the case is pending is unavailable,
another judge who entertains a bail application
despite knowledge of the pendency of the case in
another court is clearly in error. Judge may be guilty
of gross ignorance of the law
However, where the accused is arrested other than
where the case is pending, the application may also be
filed with any RTC of said place. If no judge is available,
any MTC judge in the said place.
When bail is filed with the court other than where the case
is pending, the judge who accepted the bail shall forward
it, together with the order of release and other supporting
papers, to the court where the case is pending. Failure of
the judge to transmit is a violation of the rules.
Where the grant of bail is a matter of discretion, or the
accused seeks to be released on recognizance, the
application may only be filed with the court where the
case is pending, on trial or appeal.
When a person is in custody but not yet charged, he may
apply with any court in the P, C or M where he is held.
195. What are the types of bail?
(1) Corporate surety—furnished by a corporation which
is licensed as a surety and authorized to act as such;
may provide bail by a bond subscribed jointly by the
accused and an officer of the corporation
12
(2) Property surety—undertaking constituted as lien on
the real property given as security for the amount of
bail (Remember the requirements on the procedure
for this type of bond)
(3) Cash bond—accused or any person acting in his
behalf may deposit in cash, with the nearest collector
of internal revenue or P, C, M treasurer or the clerk
of the court where the case is pending, the amount
of bail fixed by the court or recommended by the
prosecutor who investigated or filed the case
(Remember, judge is not authorized to accept cash
bond; also, remember the requirements in posting
this kind of bond)
(4) Recognizance—obligation of record entered into
before some court or magistrate duly authorized to
take it, with the condition to do some particular act,
the most usual condition in criminal cases being the
appearance of the accused for trial. It may either be
on recognizance of the accused himself or that of a
responsible person.
196. What is the difference between recognizance and a
bail bond? In recognizance, there is no monetary
amount involved. However, in bail bond (e.g. cash bond,
corporate surety), there is monetary value.
197. When can the accused be released under
recognizance?
(1) Violation for an ordinance, light felony or a criminal
offense, the imposable penalty of which does not
exceed 6 months imprisonment and/ or P2000 fine
(circumstances in RA 6036)
(2) Been in custody for a period equal to or more than
the minimum of the imposable principal penalty,
without application of the ISLAW, 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) 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 youthful offender held for physical and
mental examination, trial or appeal, if he is unable to
furnish bail and under the circumstances in PD 603
(5) In a 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.
(Note: in this case, the release of the accused
cannot be effected on his own recognizance)
198. What are the guidelines in fixing the amount of bail?
(1) financial capability;
(2) nature and circumstances of the offense;
(3) penalty of the offense charged;
(4) character and reputation of the accused;
(5) age and health of the accused;
(6) weight of the evidence against the accused;
(7) probability of the accused appearing at the trial;
(8) forfeiture of other bail;
(9) fact that the accused was a fugitive when arrested;
(10) pendency of other cases where the accused is on
bail
199. What are the conditions of bail? Sec 2, Rule 114
(1) undertaking shall be effective upon approval, and
unless cancelled shall remain in force at all stages
of the case until promulgation of the judgment of the
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RTC, irrespective of whether the case was originally
filed in or appealed to it;
(2) accused shall appear before the proper court
whenever required by the court or these Rules;
(3) failure of the accused to appeal at the trial without
justification and despite due notice shall be deemed
a waiver of his right to be present threat. In such
case, the trial may proceed in absentia; and
(4) the bondsman shall surrender the accused to the
court for execution of the final judgment
200. Duration of bail. Sec 2(a), Rule 114. The undertaking
shall be effective upon approval, and unless cancelled
shall remain in force at all stages of the case until
promulgation of the judgment of the RTC, irrespective of
whether the case was originally filed in or appealed to it;
201. When is bail not required to be posted? Sec 16, Rule
114.
(1) Person has been in custody for a period equal to or
more than the possible maximum imprisonment
prescribed, he shall be released immediately,
without prejudice to the continuation of the trial or the
proceedings on appeal
(2) Maximum penalty is destierro, he shall be released
after 30 days of preventive imprisonment
(3) MTC cases for an offense punishable by
imprisonment of less than 4 years, 2 months and 1
days and the judge is satisfied that there is no
necessity for placing the accused under custody, he
may issue summons (Since no arrest is made, bail
is not required)
(4) Sec 1, RA 6036—violation of a municipal or city
ordinance, a light felony and/ or a criminal offense
with a penalty not higher than 6 months and/or a fine
of P2000 or both where it is established that he is
unable to post the required cash or bail bond,
except:
a. Caught committing the offense in flagrante
b. Confesses to the commission of the
offense unless the confession is later
repudiated by him in a sworn statement or
in open court as having been extracted
through force or intimidation
c. When he is found to have previously
escaped from legal confinement, evaded
sentence or jumped bail
d. Found to have previously violated the
provisions of Sec 2, RA 6036
e. 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 2 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. The accused has previously been
pardoned by the municipal or city mayor for
violation of municipal or city ordinance for
at least 2 times.
202. When is bail a matter of right?
(1) Before and after conviction by the MTC
(2) Before conviction by the RTC of an offense not
punishable by death, RP or LI
203. X was convicted by the MTC, he appealed to the
RTC. Is bail still a matter of right? Yes, after the
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conviction by the MTC, bail is still a matter of right to him.
It is important to note that the penalties that the MTC can
prescribe can never be RP, LI or death
204. When is bail a matter of discretion?
(1) Before conviction by the RTC for an offense
punishable by RP, or LI to determine whether the
evidence of guilt is strong
(2) Upon conviction by the RTC of an offense not
punishable by RP or LI, provided it is shown that the
accused is not or has not:
a. Recidivist, quasi-recidivist, habitual
delinquent, reiteracion
b. Previously escaped
c. Committed the offense while under
probation, parole or conditional pardon
d. Circumstances indicate the probability of
flight if released on bai; or
e. Undue risk that he may commit another
crime
Note: If you are already convicted by the RTC with a
penalty of RP or LI, you cannot as in CANNOT
(AUTOMATICALLY JUD) be granted bail.
205. A person in several instances neglected his duties
in bail. In a new case filed against him, he posts bail
again. Should it be denied? No, his past instances with
regard to prior cases cannot prejudice his right to bail to
this new case.
206. What if the RTC has already determined that the
evidence of guilt is not strong for an offense
punishable by RP, LI or death? Bail becomes a matter
of right because the TC has already determined that
evidence of guilt is not strong
207. When is bail not a matter of right?
(1) Before conviction by the RTC of an offense
punishable by death, RP or LI and the evidence of
guilt is strong
(2) After conviction by the RTC, pending appeal of an
offense punishable by death, RP or LI
(3) After conviction by the RTC of an offense with an
imposable penalty of imprisonment of more 6 years
but not exceeding 20 years, and it is shown that the
accused is/ has (any one of the circumstances, if
present are enough):
a. Recidivist, quasi-recidivist, habitual
delinquent, reiteracion
b. Previously escaped
c. Committed the offense while under
probation, parole or conditional pardon
d. Circumstances that indicate the probability
of flight if released on bail
e. Undue risk that he may commit another
crime
(4) After a judgment of conviction has become final
(5) After the accused has commenced to serve
sentence
208. The conviction was changed from murder to
homicide. Can the trial court validly convict him of
homicide? Yes, homicide is necessarily included in
murder. Hence, there can be a valid conviction upon the
showing during trial that the crime is not really murder but
homicide. There is no legal impediment.
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209. Can you apply for bail? Yes, from the penalty of RP to
RT, bail can be applied for.
210. Is it a matter of right? In the above-cited situation, it is
not a matter of right. It is a matter of discretion.
211. Where should the bail be posted on appeal? If
records are not transmitted—RTC; if records are already
transmitted—appellate court;
Note: 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. (e.g. from murder to
homicide, the application for bail during appeal should be
filed in the appellate court even if the records are still with
the RTC)
212. When should bail be denied by the RTC?
(1) If the penalty imposed is death, RP or LI, bail should
be denied since the conviction indicates strong
evidence of guilt based on proof beyond reasonable
doubt
(2) Even if the penalty imposed is not any of the above,
but merely imprisonment exceeding 6 years, the
accused shall be denied bail or his bail already
allowed shall be cancelled, if the prosecution shows
the following or other similar circumstances:
a. Recidivist, quasi-recidivist, habitual
delinquent, reiteracion
b. Previously escaped
c. Committed the offense while under
probation, parole or conditional pardon
d. Circumstances that indicate the probability
of flight if released on bail
e. Undue risk that he may commit another
crime
213. Supposing all those circumstances are not present,
accused applied for bail, trial court knows the
circumstances are not present. The trial court may
grant, but not on this sole basis, because it is still subject
to the sound discretion of the RTC.
In an application for bail pending appeal by an appellant
sentenced by the trial court to a penalty of imprisonment
for more thn 6 years, the discretionary nature of the grant
of bail pending appeal does not mean that bail should
automatically be granted absent any of the cirumstances.
Even in the case of People v Sandiganbayan, the
evidence of guilt was found as not strong for an offense
punishable RP or LI, the court may still not grant the
application for bail because the probability of escaping is
great. HOWEVER, Atty has strong reservations on this
because as already discussed, for an offense punishable
by RP or LI where evidence of guilt is not strong, bail
becomes a matter of right.
214. LI or RP, should there be an application? Of course.
It does not automatically mean bail cannot be granted
just because the offense is punishable by RP or LI.
215. Who has the burden of proof that evidence is
strong? Prosecution
216. Is it not the duty of the applicant? No, it is the duty of
the prosecutor.
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217. Is hearing necessary? Yes
218. Even if the prosecutor says that they give their
conformity that bail should be granted? Yes, judicial
consideration for bail is independent from the stand of the
prosecution. Hence, a bail hearing is necessary in order
to determine whether or not evidence of guilt is strong.
219. Duties of the judge in a hearing for bail.
(1) Notify the prosecutor of the hearing of the application
for bail
(2) Conduct hearing regardless of the prosecution
refusing to submit evidence
(3) Decide whether the evidence of guilt of the accused
is strong based on summary evidence
(4) If the guilt of the accused is not strong, discharge the
accused upon the approval of the bail bond.
220. What happens to the evidence presented during the
bail hearing? It is automatically reproduced in the trial
221. What is a capital offense? Offense that is punishable
by death. Remember, there is no more death penalty
today, so please if you mention the penalties in the RPC,
remove the penalty of death.
222. Can you increase the bail? Yes, the court may
223. Can you reduce the bail? Yes, the court may consider
the financial capability of the accused
224. Bail may also be forfeited. On what grounds?
225. What is the difference of an Order of Forfeiture and
an Order of Confiscation?
226. What are the grounds of cancellation of bail?
227. A bail may not be granted anymore when the
decision is final. Why?
228. What is the exception to this rule, such that even if
the decision is already final, bail may still be
granted? When the accused applies for probation,
because remember, when you apply for probation, you
forego your right to appeal so the decision becomes final.
Probation may be applied for offenses with a penalty of 6
years below. So, during the window period of the
application of probation being acted upon, bail may be
applied for.
229. Exception to the exception? If you are already starting
to serve your sentence (even when you applied for
probation)
230. Who is a youthful offender? (Note: this is relevant
with regard to granting recognizance) Article 189, PD
603, as amended—A youthful offender is one who is over
9 years of age but under 18 years at the time of the
commission of the offense (not sure though)
231. Who is a recidivist? One who, at the time of his trial for
one crime, shall have been previously convicted by final
judgment of another crime embraced in the same Title of
the RPC
232. Quasi-recidivist. Person after having been convicted
by final judgment shall commit a new felony before
beginning to serve sentence or while serving the same
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233. Habitual Delinquent. One who is a third-time or oftener

offender and commits another crime within a period of 10
years of the crimes listed (serious or less serious physical
injury, theft, robbery, falsification, estafa)

234. Reiteracion. One who has served out his sentence for
his first conviction and has committed a subsequent
offense not embraced with the same Title in the RPC.

235. Probation. A defendant, after conviction and sentence,

is released subject to conditions imposed by the court
and to the supervision of a probation officer.

236. Parole. Conditional release of an offender from a

correctional institution after he has served the minimum
of his prison sentence

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RULE 115—RIGHTS OF THE ACCUSED
1. What are the rights of the accused? Sec 1, Rule 115.
(1) To be presumed innocent until the contrary is
proved beyond reasonable doubt.
(2) To be informed of the nature and cause of the
accusation against him.
(3) To be present and defend in person and by
counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment. The
accused may, however, 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. The absence of
the accused without justifiable cause at the trial of
which he had notice shall be considered a waiver of
his right to be present thereat. When 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. Upon motion, the accused may be
allowed to defend himself in person when it
sufficiently appears to the court that he can properly
protect his right without the assistance of counsel.
(4) 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) To be exempt from being compelled to be a
witness against himself.
(6) To confront and cross-examine the witnesses
against him at the trial. Either party may utilize as
part of its evidence the testimony of a witness who
is deceased, out of or can not with due diligence be
found in the Philippines, unavailable or otherwise
unable to testify, given in another case or
proceeding, judicial or administrative, involving the
same parties and subject matter, the adverse party
having the opportunity to cross-examine him.
(7) To have compulsory process issued to secure the
attendance of witnesses and production of other
evidence in his behalf.
(8) To have speedy, impartial and public trial.
(9) To appeal in all cases allowed and in the manner
prescribed by law
2. What is presumption of innocence? Accused is
presumed innocent until the contrary is proved.
3. What is the basis for this?
(1) Sec 14(2), Art 3 of the Constitution. xxx in all
criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved xxx
(2) Sec 1(a), Rule 115. To be presumed innocent until
the contrary is proved beyond reasonable doubt
4. Why is there a presumption of innocence? To protect
the accused from all of the state’s power and resources
that may be used against him in contrast, to only one
person’s resources to defend himself. It is the protection
granted by the state that the accused should be deemed
innocent until proven guilty beyond reasonable doubt.
5. Is presumption of innocence disputable? Yes, once
proven beyond reasonable doubt.
6. Is it valid, for some laws to presume the guilt of the
accused? Yes, since the logical inference derived from
such act is to presume that indeed the accused is guilty
16
thereof (e.g. presumption of guilt when a person is in
possession of a stolen item is the thief; malversation of
public funds). There is a valid or rational causal
connection between the facts proved and the ultimate
facts presumed (connection between the presumption
and the facts).
Note: This is only disputable in character. You can
dispute this and prove your innocence with evidence
proving your innocence. It is not conclusive in character.
7. What if the law presumes that when a person is
killed by cyanide poisoning and it has been
established that you own cyanide, it is presumed
that you are guilty, is this allowed? Nah girl, there is
no rational connection between these facts.
8. What is reasonable doubt? In a criminal prosecution a
reasonable doubt can be created by many things but to
be sufficient to prevent a conviction, it must arise from
the evidence adduced or from the lack of evidence, and
can arise from no other legitimate source. While no test
definitively determines which is and which is not
considered reasonable doubt under the law, it must
necessarily involve genuine and irreconcilable
contradictions based, not on suppositional thinking, but
on the hard facts constituting the elements of the crime.
It is not mere possible doubt, because everything
relating to human affairs is open to some possible or
imaginary doubt. It should not be vague, speculative or
whimsical, but intelligent, reasonable and impartial and
based on a careful examination and conscious
consideration of all the evidence in the case.
It is that state of the case which, after the entire
comparison and consideration of all the evidence leaves
the mind of the judge in that condition that he cannot say
that he feels an abiding conviction to a moral certainty
of the truth of the charge. Absolute certainty is not
demanded by the law to convict of any criminal charge
but moral certainty is required, and this certainty must
attend every proposition of proof requisite to constitute
the offense. (You examine the facts using the mindset
of a Judge—if the judge still has doubts regarding the
guilt of the accused, he must acquit him) Even after the
investigation, there is still this nagging doubt in the mind
of the judge whether the accused is really guilty.
9. Why is it that the burden is given to the prosecution
to prove that the accused is guilt? The accused is
not supposed to prove his innocence. It is the
prosecution who must prove his guilt. However, just
because the burden of proof is with the prosecution and
the accused does not have to present evidence for his
innocence, the counsel of the accused is not prevented
by the Constitution to present evidence.
Note: Acquittal is of 2 forms—(1) statement by the court
that the accused is not guilty of committing the crime;
and (2) acquittal by reasonable doubt
10. What is the duty on the part of the defense? To
present evidence that would engender a doubt on the
back of the mind of the judge to warrant his acquittal.
11. Supposing X was already convicted, he appeals. Is
there still a presumption of innocence? Not sure. On
the first hand, he may not be presumed innocent
anymore since during appeal, the burden of proof to
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reverse the decision of the trial court is already upon the
accused. In that point, it is you that has to prove your
innocence to the higher courts.
However, there is an article written about it, “There is
only one Presumption of Innocence” (Netherlands
Journal of Legal Philosophy) by Antony Duff where he
said, “The criminal process is terminated when the
judgment has become final or the case has been finally
dismissed. Legal systems differ, however with respect
to acknowledging the presumption of innocence during
the appeals process. Whereas in the common law
tradition, the verdict of the jury concludes the trial
process and thus removes the protection of the
presumption of innocence, the civil law tradition does
not regard conviction as final until all avenues of appeal
have been exhausted or waived”.
So ang ending, huwat nalang ta sa final discussion ni
Atty. Soleng.
12. Why is there a need to identify the perpetrator or the
accused? Without valid identification, there can be no
conviction. How can you convict someone you are not
even absolutely certain was the one who committed the
crime?
13. What is meant by the equipoise rule? This is when
the evidence of the parties is evenly balanced, the case
will be resolved against the plaintiff. The scales of justice
have to tilt in favor of the accused, because first and
foremost, there is this presumption of innocence. Thus,
the court has to acquit. It should be noted that for
purposes of conviction, the plaintiff must rely on the
strength of his evidence and not on the weakness of the
evidence of the defense. The prosecution must present
proof beyond reasonable doubt.
14. Why must it be in favor of the accused? In criminal
cases, when there is doubt, it must always be in favor of
the accused. Remember, the presumption of innocence
only ends upon the showing of guilt beyond reasonable
doubt.
15. What if the accused invokes self-defense? What is
the effect? The one who invoked self-defense shall
bear the burden of proof that the elements constituting
self-defense are present. This is the exception to the
rule that the accused does not bear the burden of proof
in criminal cases.
16. Why does the accused bear this burden? The
accused has already admitted his guilt. In effect of this
admission, the prosecution need not prove his case
anymore. In fact, herein, the presentation of evidence
even changes. Now, you, as the accused will present
your evidence and then, the prosecution will rebut the
evidence presented.
17. What are the matters which must be stated in the
information to inform the accused of the nature and
cause of the accusation against him?
(1) Name and surname of the accused
(2) Name and surname of the offended party
(3) Place and date when the crime was committed
(4) Acts and circumstances that constitute the crime;
designation of the crime in the statute or its
reference to the section or sub-section
(5) Aggravating or qualifying circumstances
17
Note: The circumstances have to be stated in ordinary
and concise language or in terms sufficient to enable a
person of common understanding to know what offense
is being charged and the defenses available to him.
18. Why is it that qualifying circumstances should be
specifically stated in the information? It has to be
stated in the information in order for it to be appreciated
during trial. It is well-settled that a qualifying or
aggravating circumstance cannot be appreciated in
imposing the proper penalty of the accused if in the first
place, it was not stated in the information. Otherwise, it
would violate the accused’s right to be informed and
intelligently prepare for his defense. Notwithstanding the
failure on the part of the accused to object on the
aggravating circumstance when presented during trial,
his right to be informed is still violated. In trial, as a
general rule, surprises are not allowed. You have to lay
out all your cards on the table and put everything
constituting the crime in the Information.
19. What is your basis for this right to be informed?
Section 1(b), Rule 115—To be informed of the nature
and cause of the accusation against him; Article 3,
Constitution—the right to be informed of the nature and
cause of the accusation
20. What if the judge knew for a fact that no PI was
conducted and no information had yet been filed, it
set the criminal case for arraignment and hearing?
That is very stupid for the judge, class to require
arraignment before the filing of the information. It is not
only stupid but also dumbass. It is elementary. You have
to wait for the information to be filed, otherwise, the
accused’s right to be informed of the nature and cause
of the accusation against him will be violated.
21. X was accused of estafa under BP 22. The check
number is different from the one proven during trial.
Can he be convicted? No, there was clearly a violation
of the accused’s right to be informed of the nature and
cause of the accusation against him with the
discrepancy of the identity of the checks—the checks
being an element of the crime.
22. The accused was charged of selling shabu. Can he
be convicted for selling ephedrine? Yes, although
there is a difference of what was actually sold, the two
substances are essentially the same. Ephedrine is
known as the raw material of the shabu. Therefore, it
does not alter the nature of the offense nor determine or
qualify the crime or penalty. It is a rule that where an
accused is charged with a specific crime, he is also duly
informed not only of such specific crime, but also of
lesser crimes or offenses included therein.
23. The accused has a right to counsel. What does it
mean? In criminal proceedings, the accused has a right
to independent and competent counsel, preferably of his
own choice.
24. Suppose the counsel of my choice is available only
after a year. Can I insist to the court to suspend the
proceedings before me until the lawyer of my choice
is available? No, because although the counsel of the
accused is preferably one of his own choice, this does
not mean that he can exercise this preference without
any restrictions. He cannot exercise this preference in
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order to delay the proceedings before him, otherwise, it
would unduly frustrate the ends of justice.
25. Does the accused have the right to counsel during
custodial investigation? Yes, the right to counsel
attaches the moment CI begins.
26. Why is it that the accused is entitled to a counsel
during the CI? The law recognizes that CI is oftentimes
a setting where state power is being exhausted that it
results to an intimidating and coercive nature of inquiry.
Counsel for the accused must be provided in order to
safeguard fully his rights.
27. X went to the barangay and made some statements
before the barangay chairman. At that time, he was
not assisted by a counsel of his own choice. May the
statement be taken against him? Yes, it was his own
choice that he went to the barangay chairman. He did
so without being coerced.
28. A person was requested to stand for a police line-up
because the victim would like to make an
identification of the person who committed an
offense. May he request to be assisted by counsel?
The right to counsel does not yet attach in a police line-
up. A police line-up is not a custodial investigation to
which the accused’s right to counsel would attach.
29. What if the police officers during the lineup invited
you as the suspect basing on the pointing of finger
by the witness? Now, your right to counsel will attach.
You are now under custodial investigation.
30. When does your right to counsel begin? Upon
custodial investigation.
31. What are the rights of the accused under custodial
investigation?
(1) Right to remain silent
(2) Right to counsel
(3) Right to be informed of the above-mentioned rights
32. During administrative investigation, can you invoke
your right to counsel? No, in administrative
proceedings, your right to counsel cannot be invoked.
There is no determination of guilt here. In admin
proceedings, the purpose is to determine whether there
are facts that merit disciplinary measures to be imposed
against you.
33. Why should there be a counsel during custodial
investigation? The law recognizes the hostile and
intimidating nature of the CI such that without the right
to counsel, the accused may be forced to admit false
confessions that may be incriminating, or even perjure
himself.
34. Supposing A, girlfriend narrated to the guidance
counselor that she was being harassed by B, her
boyfriend. Because B was very angry, he confided
to the counselor that once, he raped A. Can the
statement be used against B? Yes, it is a rule that the
rights under the Bill of Rights can only be invoked
against the government and its representatives. It
cannot be invoked against private persons. Herein,
because the guidance counselor is a private person, his
statement can be used against him.
18
35. What if the guidance counselor works for the
Republic of the Philippines? Still admissible, because
the guidance counselor is not a law enforcer.
36. What if due to a quarrel between neighbors, they
went to the barangay captain. There, one of the
parties divulged to the barangay captain of his
crimes against the other. Can it be admitted as
evidence? Still admissible, a barangay captain is not a
law enforcement officer. An extrajudicial confession
made without a counsel can be used against you.
37. What is meant by a competent counsel? Someone
who is able to fully and properly protect the rights of the
accused.
38. Who determines the counsel is competent? The
court determines whether or not the counsel of the
accused is competent.
39. What makes the counsel incompetent? When his
presence or aid is merely a simple perfunctory
representation
40. What is meant by “right to choose a counsel is not
plenary”? Even though your right to counsel is one
preferably of your own choice, it is not absolute such that
you will be allowed to delay the proceedings by insisting
that your representation be done by your choice of
counsel.
41. Can you waive you right to counsel? Yes. The waiver
is allowed if it is properly shown that the accused can
properly defend his rights and represent himself in court.
42. Supposing a person makes an extrajudicial
confession, can that statement made by the
accused in the presence of an incompetent
counsel? Is such confession admissible? No, it must
be in the presence of competent and independent
counsel.
43. Who is an incompetent counsel? A person who is not
capable to properly defend the rights of the accused.
44. What about the extrajudicial confession, should the
accused be assisted by counsel? For extrajudicial
confession to be admissible in evidence, it must be
(WAVE) written, assisted by independent and
competent counsel, voluntary and express.
45. An arrested barangay person linked to illegal drugs
makes confessions during an interview with Bobby
Nalzaro that he has killed several people, he has
accepted money from some people, etc. Can such
statements be used against him? Yes, the rights of
the accused can only be invoked against the State and
its law enforcers, not to private persons. Media men are
not law enforcers.
ANY CONFESSION MADE OUTSIDE THE
COURTOOM, IT IS EXTRAJUDICIAL (HENCE THE
NAME) BUT IF MADE INSIDE THE COURTOOM, IT IS
JUDICIAL. Note, class, if you give your confession to a
barangay captain without the assistance of counsel, it
can still be used against you. Even if you make it to
barangay captains, congressmen, mayors, guidance
counselors, media-men, ALL THOSE STATEMENTS
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CAN BE USED AGAINST YOU. All these people are not
law enforcement officers.
46. What are the requisites to consider an extrajudicial
confession valid? (WAVE) written, assisted by
independent and competent counsel, voluntary and
express. Remember, these requisites of a valid
extrajudicial confession are not needed when the
confession is made to a person NOT a law enforcement
officer. Again, ANY extrajudicial confession made to a
person NOT a law enforcement officer can be used
against you even in the absence of all these requisites.
47. The accused has a right to speedy trial. What does
it mean? Trial is free from capricious, vexatious and
oppressive delays. It does not mean that the trial cannot
be attended with delays, however these delays must be
reasonable.
48. What is the effect of such violation? The accused
may move for the dismissal of the case against him.
49. If such case is dismissed, is it a judgment of
acquittal? Yes, the permanent dismissal is likened to
the effect of acquittal, such that when the accused is
prosecuted for the same crime again, he can invoke
double jeopardy. The dismissal of the case is
tantamount to acquittal. It is dismissal with prejudice.
Remember, this dismissal is not an acquittal but only
akin to acquittal.
50. What are the requisites for double jeopardy?
(1) First jeopardy must have attached
(2) First jeopardy must have validly been terminated
(3) Second jeopardy must be for the same offense as
that in the first
Note: Dismissal without express consent of the accused
constitutes termination of the case, EXCEPT when (1)
dismissal is based on violation of right to speedy trial or
(2) there is insufficiency of evidence. In such cases,
even though the dismissal is WITH consent of the
accused, the case may still be permanently dismissed,
to which first jeopardy attaches.
51. Supposing a person filed a case of estafa against
you. The case has been in the prosecutor’s office for
th
10 years. On the 10 year, the prosecutor finally
found probable cause. So, the prosecutor filed the
information against you in the RTC. Can you tell the
court to dismiss the case for violation of your right
to speedy trial? Yes, herein the right of the accused to
speedy trial is being violated.
52. When does the right to speedy trial commence?
When the criminal complaint is being filed with the
investigating body (See Coscolluela v SB)
53. Under the Speedy Trial Act, what is the time limit?
Section 6. Time Limit for Trial. - In criminal cases
involving persons charged of a crime, except those
subject to the Rules on Summary Procedure, or where
the penalty prescribed by law does not exceed six (6)
months imprisonment, or a fine of One thousand pesos
(P1,000.00) or both, irrespective of other imposable
penalties, the justice or judge shall, after consultation
with the public prosecutor and the counsel for the
accused, set the case for continuous trial on a weekly or
other short-term trial calendar at the earliest possible
19
time so as to ensure speedy trial. In no case shall the
entire trial period exceed one hundred eighty (180) days
from the first day of trial, except as otherwise authorized
by the Chief Justice of the Supreme Court pursuant to
Section 3, Rule 22 of the Rules of Court
Section 7. Time Limit Between Filing of Information
and Arraignment and Between Arraignment and
Trial. - The arraignment of an accused shall be held
within thirty (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. Thereafter, where a plea of
not guilty is entered, the accused shall have at least
fifteen (15) days to prepare for trial. Trial shall
commence within thirty (30) days from arraignment as
fixed by the court.
Section 8. Time Limit Following an Order for
New Trial. - If the accused is to be tried again following
an order of a court for a new trial, the trial shall
commence within thirty (30) days from the date the order
for a new trial becomes final, except that the court
retrying the case may extend such period but in any
case shall not exceed one hundred eighty (180) days
from the date the order for a new trial becomes final if
unavailability of witnesses or other factors resulting from
passage of time shall make trial within thirty (30) days
impractical.
Section 9. Extended Time Limit. - Notwithstanding the
provisions of Section 7 of this Act, for the first twelve-
calendar-month period following its effectivity, the time
limit with respect to the period from arraignment to trial
imposed by Section 7 of this Act shall be one hundred
eighty (180) days. For the second twelve-month period
the time limit shall be one hundred twenty (120) days,
and for the third twelve-month period the time limit with
respect to the period from arraignment to trial shall be
eighty (80) days.
54. Give an example of an instance when the right of the
accused to a speedy trial is violated. When
prosecution would ask for the postponement of the trial
because he needs more time to look for witnesses and
produce evidence. Court grants it. But after a span of
time, prosecution still fails to do so. As counsel, ask for
the reason of such delay. Assert the right of the accused
to a speedy trial. File a motion to dismiss the case.
55. What is continuance? Postponement of trial as
granted by the court (only for just cause)
56. When is continuance allowed? Speedy Trial Act,
Section 11. Factors for Granting Continuance. - The
factors, among others, which a justice or judge shall
consider in determining whether to grant a continuance
under subparagraph (f) of Section 10 of this Act are as
follows:
(a) Whether the failure to grant such a continuance in
the proceeding would be likely to make a continuation of
such proceeding impossible, or result in a miscarriage
of justice.
(b) Whether the case taken as a whole is so novel, so
unusual and so complex, due to the number of accused
or the nature of the prosecution or otherwise, that it is
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
unreasonable to expect adequate preparation within the
periods of time established by this Act.
No continuance under subparagraph (f) of Section 10
shall be granted because of general congestion of the
court's calendar, or lack of diligent preparation or failure
to obtain available witnesses on the part of the public
prosecutor.
57. What is meant by fixed-time period and demand-
waiver rule?
(1) Fixed-time period rule—Constitution requires a
criminal defendant to be offered a trial within a
specified time period
(2) Demand-waiver rule—defendant waives any
consideration of his right to speedy trial for any
period prior to which he has not demanded trial.
under this rigid approach, a prior demand is
necessary to the consideration of the speedy trial
right
58. What does the balancing test mean? Middle ground
to the above-mentioned approaches. The test
necessarily compels the courts to approach speedy trial
cases on an ad hoc basis where courts should assess
and identify certain factors which courts should assess
in determining whether a particular defendant has been
deprived of his right (length of the delay, reason, the
defendant’s assertion of his right and prejudice to the
defendant). So, even though we have fixed periods in
our Rules when the trial should proceed, it does not
mean reasonable delay cannot attend. Basically, the
determination of the right to speedy trial being violated
takes into account all the circumstances or totality of the
circumstances of the case.
59. A person has a right against self-incrimination.
What does it mean? A person cannot be compelled to
testify against himself that will subject him to an
incrimination.
60. Supposing I am Trillanes and you are Vice Mayor
Duterte. May I check your tattoo? That is my
evidence against you. May you refuse and invoke
self-incrimination? No, you cannot refuse to be
checked and invoke self-incrimination. Being checked
for the tattoo that is on your body is a mechanical act
that requires no compelled testimony of a
communicative nature.
61. What about your right to privacy? No, his right to
privacy is not being violated (not sure though)
62. What if a corporation was required to produce these
books of accounts in relation to a criminal case, can
it invoke its right against self-incrimination? No, a
corporation cannot invoke its right against self-
incrimination as it is a juridical person. Only natural
persons can invoke this personal right.
63. What is meant by compulsion? Pressure which
operates to overbear his will, disable him from making a
free and rational choice or impair his capacity for rational
judgment would sufficient, so is moral coercion that
tends to force testimony from the unwilling lips of the
accused.
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64. Why is it that it is limited only to testimonial
compulsion? Because with testimonial compulsion,
siya mismo muhatag ug incriminating evidence against
himself. By the Constitution, no person shall be
compelled to be a witness against himself.
65. What if the court ordered that a person be physically
examined to test for gonorrhea in relation to the
infection that the victim of rape got from him? Can
the accused refuse? No. The privilege does not
include the body for examination. It only extends to the
prohibition of testimonial compulsion or compelled
testimony that are communicative in nature.
66. What about paraffin test? Still not violative of
accused’s right against self-incrimination. It is
tantamount to subjecting the body for examination
(People v Fieldan)
67. What is forced reenactments? Where the accused is
forced or asked by the police officers to reenact the
crime. “Here the accused is not merely required to
exhibit physical characteristics; by and large, he is made
to admit criminal responsibility against his will” (People
v Olvis)
68. Are forced reenactments allowed? No. Like
uncounseled and coerced confessions come within the
ban against self-incrimination (People v Olvis)
69. What if the police officers ask the accused to
examine your footprint and check if it matches the
one in the crime scene? Not violative. This is
considered a mechanical act that the accused is made
to execute, not meant to unearth undisclosed facts but
to ascertain physical attributes determinable by simple
observation.
70. What if the police officers ask the accused to take
laxatives in order to get the substances from your
body? Not violative, constitutes a mechanical act.
71. What if the accused is asked to submit his
handwriting to match the signatures in the forged
document? Becomes violative. In Beltran v Samson, it
was held that writing is not purely a mechanical act
because it requires the application of intelligence and
attention. Here, through writing, the accused is made to
furnish a means to determine whether or not he is the
falsifier.
72. What if your house was raided by the police and the
police officers wanted you to sign the search and
seizure receipt without counsel? Not violative. The
person is not made to sign something to produce
evidence against himself. The signature affixed is
irrelevant to the admissibility of the evidence validly
seized. (Marcelo v SB)
73. Difference between the right against self-
incrimination claimed by a witness vs. claimed by
the accused. The ordinary witness may be compelled
to take the witness stand. When applied to a witness, it
can only be claimed when the specific question,
incriminatory in character, is actually put to the witness.
The accused may altogether refuse to take the witness
stand and refuse to answer any and all questions.
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74. Is the right against self-incrimination self-
executing? No, it is not self-executing. It has to be
claimed, invoked or asserted in order to operate.
75. What is self-executing? The right operates
automatically. It does not need to be claimed, invoked
or asserted.
76. Can this right be waived? Yes. To be effective, the
waiver must be certain, unequivocal and intelligently,
understandably and willingly made; such waiver
following only where liberty of choice has been fully
accorded. A waiver is an intentional relinquishment or
abandonment of a known right.
77. Under what proceedings can this right be claimed?
The right is accorded to every person in any civil,
criminal or administrative proceeding.
78. When immunity is granted to a person, he may no
longer invoke this right against self-incrimination, is
that correct? Yes. This immunity embodies an
understanding that the prosecutor essentially agrees to
refrain from prosecuting the witness.
79. What is transactional immunity? “Blanket or total
immunity”, which completely protects the witness from
future prosecution for crimes related to his testimony
80. What is use-and-derivative use immunity? This
prevents the prosecution only from using his testimony
or any evidence derived from such testimony. However,
should the prosecutor later on acquire evidence of a
crime committed by the witness, independently from the
testimony, the witness may then be prosecuted.
81. What are these immunity statutes? Statutes where
the government grants immunity to a witness in
exchange for a testimony favorable to the prosecution.
82. Why do we have these immunity statutes? They seek
a rational accommodation between the imperatives of
the privilege and the legitimate demands of government
to compel citizens to testify. Some examples are (1)
state immunity from suit; (2) parliamentary immunity; (3)
immunity granted by the Ombudsman; (4) granted by
the PCGG to informants or witnesses; (5) PD 749 (for
graft and corruption cases); and (6) Witness Protection,
Security and Benefit Act
83. The person has the right to defend himself and the
right to be heard. What does this mean? The accused
is accorded the right to defend himself either in person
or by counsel. As a consequence, he has the right to be
present at every stage of the proceedings.
84. The right to be heard. What does this mean?
Accused is given the opportunity to be heard or “given
his day in court”. It is a part of due process,
85. The accused has the right to testify as witness. What
does this mean? He has the right to testify as a witness
in his own behalf but subject to cross-examination on
matters covered by the direct examination.
86. Can the accused invoke his right against self-
incrimination when the accused testifies as witness
in his own behalf and the prosecution cross-
examines him on matters covered by the direct
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examination? No, the exercise of the accused’s right to
testify as witness in his own behalf is subject to the
condition that he can be cross-examined only on those
matters covered by direct examination. This exercise is
deemed a waiver of his right against self-incrimination.
Note: When you are the accused, the matters asked
during cross examination is only limited to those
matters in the direct examination. Otherwise, the
accused can invoke his right against self-
incrimination on those matters that were not
covered during direct examination.
87. The accused has the right to compulsory process.
What does this mean? This is the right accorded to the
accused to secure the attendance of witnesses and the
production of witnesses in his behalf.
88. What does the right to appeal mean? The accused is
given the right to appeal in the manner prescribed by law
up until the highest court.
89. The accused has the right to secure the attendance
of the witness against him. What does this mean?
The accused may move the court for the issuance of a
subpoena ad testificandum (writ ordering a person to
attend a court) a subpoena duces tecum (writ ordering
a person to attend a court and bring relevant
documents)
90. Can you invoke this right during PI? No, the right to
confrontation does not apply in PI. The investigating
officer may set a hearing. While the parties are allowed
to present at the hearing, they are without the right to
examine or cross-examine. They may submit to the
investigating officer questions which may be asked to
the party or witness concerned.
91. When may the direct examination of the accused be
allowed to be stricken off the record? If one is
deprived of the opportunity to cross-examine without
fault on his part, it is generally held that he is entitled to
have the direct examination stricken from the record.
92. May the testimony of a deceased in another
proceeding be used as evidence during trial? Yes,
either party may use as evidence testimony of a witness
who is not present during trial, provided: (1) witness is
(a) deceased, (b) out of or cannot with due diligence be
found in the Philippines, (c) unavailable, or (d) otherwise
unable to testify; (2) testimony was given by the witness
in another case or proceeding, judicial or administrative
and involving the same parties or subject matter; and (3)
the adverse party had the opportunity to cross-examine
the witness.
93. Can the CA, upon appeal increase the penalty
imposed by the trial court? Yes, because upon
appeal, throws the whole 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.
94. May the credibility of the accused by reviewed by
the appellate court? No, factual findings of the trial
court especially the credibility of the accused is
accorded great respect since it is understood that the
trial court is in the perfect position to ascertain the
credibility of the witnesses during the trial.
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
RULE 115—RIGHTS OF THE ACCUSED
1. What is arraignment? Arraignment is the formal mode
and manner of implementing the constitutional right of
the accused to be informed of the nature and cause of
the accusation against him.
2. What is its purpose? To apprise the accused why he
is being prosecuted by the State. It is an indispensable
requirement of due process.
3. What if the accused insists to proceed with the trial
without arraignment and the court decided he was
not guilty? Can the prosecution file another case in
order to re-litigate? Absence of arraignment
regardless if there is acquittal or conviction, there can be
no first jeopardy. Hence, the prosecution can always file
a case against you. The arraignment is necessary in
order for the first jeopardy to attach. The effect of the
absence of arraignment results in the nullity of the
proceedings before the trial court.
4. Duty of the court before arraignment. The court shall
(a) inform the accused of his right to counsel; and (b)
ask him if he desires to have one. The court must assign
a counsel de officio to defend him unless the accused
(a) is allowed to defend himself in person or (b) has
employed a counsel of his choice.
5. May the court continue with the arraignment despite
the absence of the counsel of the accused? As a
general rule, the arraignment of an accused must be
with the presence of his counsel. However, the
arraignment may continue despite his absence when the
court allows the accused to defend himself in person.
Note: Upon the appointment of a counsel de officio,
such counsel may ask the court to be relieved of
being the counsel for the accused after arraignment.
But, class, if you become a counsel de officio
someday, try and talk to the accused and explain to
him the nature and cause of the accusation against
him. That is the duty of a counsel de officio.
6. What are the options of the accused before
arraignment and plea? The accused may avail of any
of the following:
(1) Bill of Particulars;
(2) Suspension of arraignment when:
(a) accused is in an unsound mental condition
which effectively renders him unable to fully
understand the charge and plead intelligently
(b) there exists a prejudicial question, or
(c) there is a petition for review of the resolution
of the prosecutor pending at the DOJ or Office
of the President (such period of suspension
shall not exceed 60 days from the filing of the
petition of review)
(3) Motion to quash
(4) Challenge the validity of the arrest, legality of the
warrant or assail the regularity or question the absence
of a PI (this option is included in a Motion to Quash)
Note: The failure of the accused to exercise these
options is deemed a waiver of its exercise and to
raise these matters to the court.
In a Bill of Particulars (remember the case of Enrile
who is 90+ years old but is still very powerful). The
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prosecution is duty-bound to reply and provide for
the evidence asked by the accused.
7. Right to bail in relation to arraignment (Motion to
quash discussion). To require an arraignment first
before the accused is allowed to avail of bail is
tantamount to not letting the accused exercise his
options to file prior to the arraignment such as a Motion
to Quash.
8. What is the effect if the person enters into an
arraignment while petition for review is pending in
the DOJ? Petition for review with the DOJ is deemed
abandoned. The reviewing body can no longer entertain
the appeal or petition for review because petitioner had
already waived or abandoned the same.
9. What if the MTC convicted the accused for a penalty
of 6 years and 1 day, can the accused by prosecuted
again? Yes, the accused cannot claim double jeopardy
because in the first place, the first conviction was done
by a court without jurisdiction.
10. What if there was already arraignment but the
information was amended? Re-arraignment is
dependent on what kind of amendment was made. If it
was a formal amendment, there is no need for a new PI
or the retaking of a plea. However, if it is a substantial
amendment, the arraignment on the amended
information is mandatory.
11. Prosecution substituted the information. Is there a
need for a new arraignment? Yes, in substitution of
information, another PI is entailed and the accused has
to plead anew to the new information.
12. Where do you conduct your arraignment? The
accused must be arraigned before the court where the
complaint or information was filed or assigned for trial.
13. How is it made? It is made in open court by the judge
or clerk furnishing the accused with a copy of the
complaint or information, reading the same in the
language or dialect known to him, and asking him
whether he pleads guilty or not.
14. When should the arraignment be made? Under the
ROC, the arraignment shall be held within 30 days from
the date the court acquires JD over person of the
accused, unless a shorter period is provided by a special
law or SC Circular.
15. Circumstances which cannot be counted in
counting the 30-day period. (1) time of the pendency
of a motion to quash; (2) time for the pendency of a bill
of particulars; (3) other causes justifying suspension of
the arraignment.
16. What if the accused is charged with rape but he was
not arraigned? The trial continued but the judge
ordered for his arraignment despite the presence of
a hearing. Is that valid? Accused’s belated
arraignment did not prejudice him. The procedural
defect was cured when his counsel participated in the
trial without raising any objection that his client had yet
to be arraigned.
17. Why is the accused required to be present during
the arraignment? So he can personally enter his plea
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
upon personal understanding of the cause and
accusation against him.
18. Can he not give an SPA to a person (e.g. counsel) to
enter into arraignment on his behalf? No.
19. Is the offended party required to be present? The
private offended party shall be required to appear at the
arraignment for (1) plea bargaining, (2) determination of
civil liability, and (3) other matters requiring his
presence.
20. When can the court enter a plea of not guilty for the
accused? If the accused (1) refuses to plead, (2) makes
a conditional plea, (3) 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.
21. What is a conditional plea? Where an accused admits
his guilt provided that a certain penalty be imposed upon
him. It is not a plea to a lesser offense. It is a plea that
made conditions on the penalty to be imposed. A plea of
guilty subject to the proviso that a certain penalty be
imposed upon him is equivalent to a plea of not guilty
and would therefore, require a full-blown trial before
judgment may be rendered.
22. What if the person is accused in rape and he invoked
self-defense, is that allowed? Self-defense in rape is
impossible (?)
23. What if murder? Yes, self-defense is a proper
justification in committing murder (?)
24. When a person enters a plea of guilty, he also admits
all the facts alleged therein including all the
aggravating circumstances. Why is that? It is
because a plea of guilty is a judicial confession of guilt—
an admission of all that is alleged in the information and
made known to him.
25. Under what instance where the plea of guilty will not
include the admission of aggravating
circumstances? When such circumstances are
disproved by evidence or the evidence adduced does
not adequately disclose the existence of such
circumstances
26. What if the accused pleas guilty to estafa, may the
trial court allow the presentation of evidence to
determine the penalty to be imposed? Yes, when
there is a plea of guilty to a non-capital offense, the court
may receive evidence to determine the penalty to be
imposed.
27. What if there was a plea of guilty to a capital offense,
should the court conduct an inquiry? Yes, it becomes
mandatory for the prosecution to prove the guilt of the
accused and the precise degree of culpability.
28. Requisites for an accused to plea guilty to a lesser
offense. (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.
23
29. What if the plea of guilty to a lesser offense is made
after the arraignment? It may also be considered
during the trial proper and even after the prosecution has
finished presenting evidence and has already rested its
case (Daan v SB). However, note that the provisions in
Rule 118 indicate that plea-bargaining is one of the
matters to be considered during the pre-trial stage.
30. What if the accused pleads guilty to a lesser offense
after arraignment, is there a need to amend the
information? When a plea of guilty to a lesser offense
was allowed by the court, there is no need to amend the
information.
31. When is a plea of guilty to a lesser offense not
mitigating? When it is made after the arraignment and
after trial had begun. Plea of guilty to be mitigating, it
must be to the offense charged.
32. What should the trial court do if the plea of guilty is
to a capital offense? The trial court is mandated to (1)
conduct a searching inquiry to ascertain voluntariness of
plea and to ascertain whether the accused has full
comprehension of the consequences; (2) require the
prosecution to prove the guilt of the accused and precise
degree of his culpability; and (3) ask the accused if he
wishes to present evidence in his behalf and be allowed
to do so.
Note: Even if there is already a plea of guilty to
capital offense, the trial court should not rely on the
plea alone in order to convict him. It is primordial to
determine the guilt of the accused outside of his
plea of guilty. He must conduct a searching inquiry
that is probing to the issue and extensive.
It is important that the trial must satisfy himself that
the accused, in pleading guilty, is truly guilty.
33. If there is a plea of guilty to a non-capital offense,
should there be a searching inquiry also? The court
may receive evidence from the parties to determine the
penalty to be imposed. In non-capital offenses, this rule
is at most, directory.
34. What is an improvident plea? A plea that is
involuntarily made and without consent.
Note: A judgment made on an improvident plea may
not be set aside at all times. If there are other
grounds for the conviction other than the plea, the
conviction is upheld. However, it is the sole ground,
it must be set aside.
35. Why can the accused demand evidence in
possession of the prosecution? The purpose of the
rule in allowing the production or inspection of material
evidence in possession of the prosecution is to prevent
surprise, suppression or alteration of the evidence.
Include in the cases to be digested—People v Mira
535 SCRA 543
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
RULE 117—MOTION TO QUASH
237. What is a Motion to Quash? Special pleading filed by
the accused asking the court to annul the complaint or
information based on the defects apparent on its face
238. What are the grounds for a Motion to Quash? (Sec 3,
Rule 117).
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over
the offense charged;
(c) That the court trying the case has no jurisdiction over
the person of the accused;
(d) That the officer who filed the information had no
authority to do so;
(e) That it does not conform substantially to the
prescribed form;
(f) That more than one offense is charged except when
a single punishment for various offenses is prescribed
by law;
(g) That the criminal action or liability has been
extinguished;
(h) That it contains averments which, if true, would
constitute a legal excuse or justification; and
(i) 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
239. Are the grounds exclusive? Yes, if they are not
included in the allowed grounds then they cannot be a
ground to file such.
240. The MTQ must also include all the grounds,
otherwise if you fail to include, those grounds may
be deemed waived. Why is that? The rule is that if you
file your MTQ, you must include any and all of the
grounds for such motion. Otherwise, the grounds not
raised will be deemed waived, subject of course to the
exceptions.
241. What are the exceptions to the above-mentioned
rule?
(1) facts charged do not constitute an offense
(2) court trying has no JD over the offense
(3) criminal action or liability has been extinguished
(4) double jeopardy
Note: You can always question or assail the
jurisdiction of the court over the offense charged,
even on appeal. However, subject to the exception of
estoppel that may prevent the person’s right to assail
the JD of the court (Tijam v Sibonghanoy)
242. When should the accused file for a Motion to Quash?
Before he enters the plea
243. Can you file your MTQ orally? Of course no.
244. Proper form of a MTQ.
(1) In writing
(2) Signed by the accused or his counsel
(3) Distinctly specify the factual and legal grounds of the
MTQ
245. Is a MTQ allowed in summary procedure? No, except
on the ground of lack of JD over the subject matter or
failure to comply with the barangay conciliation
proceedings
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246. Difference between MTQ and Demurrer to Evidence.
(1) MTQ—filed before accused enters plea; DE—filed
after the prosecution presents evidence and rests its
case
(2) MTQ—does not require prior leave of court; DE—
may be filed by the accused whether with leave or
without leave of court
(3) MTQ—grounds are not the same with demurrer;
DE—ground is insufficiency of evidence
(4) MTQ—grounds may be based on matters found on
the fact of the complaint or information; DE—
necessarily be predicated upon matters outside of
the complaint or information (such as evidence or
lack of it)
(5) MTQ—when granted, dismissal of the case will not
necessarily follow (not a bar to another prosecution);
DE—when granted, it is deemed an acquittal and
would bar a subsequent filing of the same
247. Should the court only consider those grounds stated
in the MTQ? The general rule is that, in resolving the
motion to quash, the court shall consider no ground other
than those stated in the motion. The only ground which
the court may consider even if not stated, lack of JD over
the offense charged.
248. When the court quashes the information, is it
tantamount to an acquittal? No, when the court
quashes the information, dismissal of the case (that
would tantamount to an acquittal) does not necessarily
follow.
249. If the MTQ is filed and granted by the trial court, does
it follow that the prosecution is already prevented
from re-filing the information? No, except if the
grounds granted are (1) criminal liability is extinguished
or (2) double jeopardy. Also, the court can order
dismissal of the case only upon the (3) failure of the
prosecutor to correct the defective information (because
the facts charged do not constitute an offense) even
when the court already gave the prosecution the
opportunity to correct it.
250. Is execution of an affidavit of desistance a ground for
a MTQ? No, it is not a ground for a MTQ. Additionally,
such affidavit is looked with disfavor by the court and
unreliable. Therefore, it deserves only scant
consideration. Affidavits of retraction can easily be
secured from witnesses, usually through intimidation or
for a monetary consideration
251. So you will be prosecuted still. What is your remedy?
Move for the dismissal of the case. Opt to present the
person who executed the affidavit so the judge can ask
whether such was voluntarily executed. However, this is
subject to the sound discretion of the court.
252. Is absence of PC a ground to quash the information?
No, however absence of PC is a ground for dismissal of
the case.
253. If case is dismissed on the ground of lack of PC, will
it prevent the prosecution from filing a new
complaint or information? No.
254. Difference between quashal of information and
dismissal of the case. The quashal of the information
does not mean the dismissal of the case, hence the
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
prosecutor may still re-file the information against the
accused (subject to the exceptions). However, once the
case is dismissed, refiling of the same case would violate
the accused’s right against double jeopardy.
255. Can a lawyer move to quash the information based
on evidence that the accused only committed the
murder because of self-defense? No, such defense is
not a ground for a MTQ. When the defense is on self-
defense, the accused has to prove the same in a full-
blown trial.
256. What is the proper action (in the above-mentioned
case)? Ask the court for a reverse trial to prove your self-
defense.
257. Can a motion to quash be filed based on the ground
that the accused was not aware and not able to
participate in the proceedings before prosecutor’s
office? No, but the accused may file for a petition for
reinvestigation. The court may suspend the proceedings
for the completion of the PI.
258. What is the first ground for a MTQ? (a) That the facts
charged do not constitute an offense;
259. How do you determine if the facts charged do not
constitute an offense? The determinative test in
appreciating a MTQ based on this ground is the
sufficiency of the averments in the information—whether
the facts alleged, if hypothetically admitted, would
establish the essential elements of the offense as defined
by law without considering matters aliunde (matters
extrinsic of the information). If despite hypothetically
assuming the facts to be true, it is still insufficient to
secure a conviction, then the facts charged do not
constitute an offense.
260. X was charged of murder and was acquitted. Later
on, prosecution filed an information for homicide.
May it be quashed? Yes, on ground of Sec 3(i), Rule
117 or on double jeopardy.
261. If the MTQ you first filed failed to allege double
jeopardy, may it still be granted? Yes, failure to allege
double jeopardy as a ground in your first MTQ is not a
waiver in raising this subsequently.
262. What is the remedy from a denial of a MTQ? The
accused must go on trial and raise those special
defenses invoked in the MTQ. If the trial court still
convicted the accused despite your grounds or defenses,
then you raise your grounds to the appellate court. Insist
again. However, if the court, in denying the MTQ acts
without or in excess of JD or with grave abuse of
discretion, then certiorari or prohibition lies. If Rule 65 is
your remedy, then you have to file an MR first.
263. Why is appeal not available for the defense counsel
if MTQ is denied? The order of denial of MTQ is a mere
interlocutory order, such that appeal is not available.
264. If the judge granted the MTQ filed, can the
prosecution appeal? Yes, because granting a MTQ is
considered a final order where appeal is available. It
disposes the entirety of the case. Also, there is no double
jeopardy here. Thus, the prosecution may file a new
information.
25
Note: Do not be confused with “final order” and “final
and executory order”. In the former, it means that the
trial court has nothing more to be done. In the latter,
it means the lapse of the reglementary period for
appeal after the issuance of the final order.
265. May the court order the amendment of the
information instead of quashing it? Yes, if the MTQ is
based on the alleged defect of the complaint or
information, and the defect can be cured, the court shall
order its amendment
266. Example of defect which can be cured through an
amendment. When the recital of facts constitutes the
offense of homicide but “murder” was placed in the
designation of the offense. The error in its designation
may be corrected by its amendment.
267. A person was charged with rape and the complaint is
quashed. May the prosecutor file it again? Yes, again,
there is no double jeopardy here. Hence, the prosecutor
may refile the case.
268. 2 instances when the prosecutor may no longer refile
a complaint that was already quashed.
(1) Extinction of criminal liability
(2) Double jeopardy
269. What if you already have a pending MTQ but the court
still set for a date of arraignment? Argue with the court
to settle the pending MTQ and not insist on a date of
arraignment.
270. What is double jeopardy? Constitutional prohibition by
which a person is put in danger of conviction and
punishment for the same offense more than once.
271. What is meant by “jeopardy”? Danger of conviction
and punishment which the defendant in a criminal action
incurs when a valid indictment has been found.
272. What is “res judicata in prison grey”? aka double
jeopardy (or maybe refers to the instance when the effect
of res judicata in civil cases is applied in criminal cases)
273. What is res judicata? Principle in civil cases where a
matter that has been duly adjudicated by a competent
court may not be pursued further by the same parties
274. What are the requisites for double jeopardy?
(1) First jeopardy must have validly attached prior to the
second
(2) First jeopardy must have been validly terminated
(3) 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 offense or
a frustration thereof
Additionally, these are the requisites for a first jeopardy
to attach:
(1) Valid complaint or information
(2) Court of competent jurisdiction
(3) Arraignment
(4) Valid Plea is entered
(5) Defendant is convicted, acquitted or the case was
dismissed or terminated without his express consent
Judgment should not only be final and executory but also
be promulgated before there could be a valid jeopardy.
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275. Accused was charged with rape and was later on
acquitted. May the prosecution appeal? Nah, baby g.
Otherwise, it will violate the accused’s right against
double jeopardy. After a judgment of acquittal, it is
immediately final and executory. An effect of an appeal
is that the case will be opened up for review—everything
will be at the strict scrutiny of the appellate court. In effect,
if an appeal to an acquittal is allowed, you are thus
placing the accused in danger for a conviction by the
appellate court (Remember the case of Galman, favorite
example of Atty. S.). Even an MR for a judgment of
acquittal is violative of the accused’s right against DJ.
276. Supposing the accused was convicted. May the
accused appeal? Yaassss, the right to appeal is
accorded to the convicted person.
277. If the accused appealed his conviction and later on
the appellate court increased the penalty. Is it valid?
Yes, because when the accused appeals his conviction,
he is throwing the whole case open to wide review by the
appellate court. By virtue of the appeal by the accused,
he is deemed to have waived his right to invoke double
jeopardy. The same is true for a Motion for
Reconsideration.
278. May the prosecution appeal the judgment of
conviction? Of course not, you cray. Have you not
understood the concept of double jeopardy??
Note: It’s possible that the prosecution is not satisfied of
the judgment of conviction. If the penalty that was
imposed is only 6 years, then the accused may apply for
probation. If the prosecution is allowed to appeal, the
accused may be in danger of being given a higher
penalty that is no longer probationable.
279. If the trial court convicted the accused and gave him
a penalty of 6 years. Is it probationable? Yes.
280. 6 years and 1 day? Not anymore.
281. General rule is that the prosecution cannot appeal
the judgment of acquittal. What are the exceptions?
(1) There has been a deprivation of due process and
when there is finding of mistrial (I think prosecution
is the one that is deprived of due process)
(2) There has been a grave abuse of discretion under
exceptional circumstances
The rule on the proscription of appeals in acquittal is
inapplicable in cases when the State assails the very
jurisdiction of the court that issued the criminal judgment.
282. What is meant by “mistrial”? When there was a sham
trial, the prosecution may ask the appellate court to revisit
the trial court’s decision.
283. Why doesn’t it violate a person’s right against double
jeopardy? Because it amounts to the court being
divested of its jurisdiction, and we all know that without
competent jurisdiction, there can be no valid judgment.
IOW, when you exercise your jurisdiction with grave
abuse of discretion, the court is in effect divesting itself of
its jurisdiction. Thus, it cannot be the source of an
acquittal.
26
284. Is it necessary that the trial court has jurisdiction in
order for the first jeopardy to attach? Yes. Remember
the requisites for first jeopardy to attach.
285. Can the accused appeal the civil aspect? Yes
286. Why can the accused appeal the civil aspect?
Because the concept of double jeopardy has reference
only to a criminal case and as no effect on the civil liability
of the accused.
287. Is there an occasion that the accused cannot be held
civilly liable?
(1) if the acts alleged to constitute the crime was not
committed by the accused;
(2) if acquittal was based on the ground that there was
no crime at all
288. Can the private offended party appeal the civil
aspect? Yes, of course.
289. May an erroneous acquittal be cured without a
violation of the right against double jeopardy? Yes,
the State may assail the acquittal when the court that
acquitted the accused gravely abused its discretion,
resulting in loss of jurisdiction, or when a mistrial
occurred.
290. What is the remedy? Petition for certiorari under Rule
65, not an ordinary appeal.
291. Supposing a complaint for homicide was filed
against you for killing your boyfriend. The fiscal
dismissed the complaint. Later on, the family of the
boyfriend filed another homicide complaint. Will it
prosper? Yes, there was no first jeopardy to speak of.
Hence, no double jeopardy.
292. Is there a right against DJ in administrative cases?
No, the rule on double jeopardy in inapplicable to
administrative cases as provided by several
jurisprudential authorities.
293. There has to be a valid complaint in order for the first
jeopardy to attach. What does it mean? This is the first
requisite of the first jeopardy to attach. There must be
complaint or information or formal charge sufficient in
form and substance to sustain a conviction. If it could not
sustain the conviction desired, then the charge is not a
valid one and would preclude double jeopardy.
294. Entering plea is another requisite in order for first
jeopardy to attach. Why is it important? It is an
essential requisite to double jeopardy. The accused
should have been arraigned and had pleaded to the
charge. DJ cannot be invoked where the accused has not
been arraigned. It is in line with due process—the
accused should already be informed of the charge
against him.
295. X was charged with estafa. After arraignment, he filed
a motion to dismiss which was subsequently
granted. Prosecutor filed the same case later on. Will
it prosper? Yes, right against double jeopardy herein is
waived. The dismissal of the case was with the express
consent of the accused.
296. How is consent given? The consent which precludes
another prosecution should be express. It is one which is
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Criminal Procedure (Pre-finals) Transcript | Atty. Eduarado Soleng | A.Y. 2017-2018
positive, direct, unequivocal and requires no inference or
implication to supply its meaning.
297. If both the defense and prosecution moved for the
dismissal of the case and it was granted by the judge.
Later on, prosecutor wanted to reinstate the case.
Will it prosper? Yes, the dismissal of the case was with
the express consent on the part of the accused
298. Was there express consent on the part of the
accused? Yes, it is manifested through his act of moving
for the dismissal of the case.
299. Instances when even when there is express consent,
dismissal is still tantamount to acquittal.
Dismissal is on the ground of:
(1) Insufficiency of the evidence (filed with leave of court
through a Demurrer to Evidence)
(2) Denial of the accused’s right to speedy trial
(3) Discharge of an accused to be a state witness (this
is said to be done with express consent since the
State cannot force you to be a witness against your
co-accused)
Dismissal on these grounds is tantamount to acquittal.
Note: Remember the Differences of the Motion to
Quash and Motion to Dismiss the entire case. You
are a Carolinian lawyer, make sure you know the
difference.
300. May there be double jeopardy in quasi-offenses?
Yes. It is still a crime, as punished in the RPC.
301. What is a quasi-offense? Quasi-offense under Article
365, RPC which punishes criminal negligence. It is a
crime in itself and not a mere modality in the commission
of the crime. What is punished is the careless or criminal
act and not the results thereof.
302. What happened in the Ivler case? As a result of a
vehicular accident, accused was charged with 2 separate
offenses in 2 separate informations:
1.Reckless imprudence resulting in SPI (injuries
sustained by respondent)
2. Reckless imprudence resulting in homicide and
damage to property (for death of respondent’s husband
and damage to vehicle)
Accused pleaded guilty to the charge of RI resulting in
SPI and was given a penalty of public censure. Following
the conviction, accused moved to quash the second
information for placing him in jeopardy of second
punishment for the same offense of reckless imprudence.
SC agreed with the accused. The two charges against
the accused arose from the same facts and were
prosecuted under the same provision of the RPC, Art 365
– quasi offenses.
303. The prosecution claims that the second offense is
different and that there is no DJ. How was it
debunked by the SC? The 2 charges against petitioner
arose from the same facts and were prosecuted under
the same provision of the RPC. Conviction or acquittal of
such quasi-offense bars subsequent prosecution for the
same quasi-offense, regardless of its various resulting
acts.
27
304. What are the 2 type of DJ? Sec 21, Article 3,
Constitution.
(1) DJ under the same offense (same offense, attempt,
frustration, necessarily included or necessarily
includes)
(2) DJ under the same act
305. DJ has 2 concepts—which one does this case fall to?
Subsequent conviction of the same offense—Reckless
Imprudence
306. What if your act resulted to a violation of RA A, RA B,
RA C, RA D and RPC? You were acquitted under RA
A. Can the prosecutor prosecute you again under the
same RA (so RA A)? No, that is an example of the first
kind of DJ (same offense doctrine). If you were already
prosecuted under RA A, prosecutors can no longer
prosecute you under RA A.
307. Can the prosecutor prosecute him under RA B? Yes.
Even if it is of the same act and if the elements are not
the same, it does not violate the right against DJ. What is
prohibited is prosecution of the same offense twice, not
the same act. Note also that he is prosecuted under both
RA’s (so both laws).
308. Can the prosecutor prosecute him under the RPC,
even with his acquittal under RA B? Yes, there is no
violation of his right against DJ, provided the elements of
both offenses prosecuted under different laws, are not
the same. (Think of estafa under RPC and BP 22)
Note: The exception of the “same offense” doctrine
is found in the second paragraph of the
Constitutional provision where there can be DJ
based on the same act but punished under a law and
an ordinance. So, here the conviction or acquittal of
either shall be a bar to another prosecution of the
same act. Basically the “same act” results to a
violation of a law and a violation of an ordinance.
309. What is provisional dismissal? Case is dismissed
“provisionally or temporarily” but subject to revival by the
state
310. Requirements of provisional dismissal?
(1) Consent of the accused
(2) Consent of the prosecutor
(3) Notice to the offended party
311. What is meant by time-bar rule? It provides that the
provisional dismissal of a case shall become permanent
without the case having been revived in the following
periods:
(1) 1 year after issuance of the order of provisional
dismissal – for offenses punishable by imprisonment
not exceeding 6 years or a fine of any amount, or
both
(2) 2 years after issuance of the order of provisional
dismissal – with respect to offenses punishable by
imprisonment of more than 6 years
312. How do you revive? (giving CPR??? Huehue corny mo
Atty)
(1) Refile the information
(2) Filing of a new information for the same offense or
an offense necessarily included
Note: There is no need for a new PI
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313. Why is the provisional dismissal not tantamount to

DJ? Because the dismissal was with the express consent
of the accused

314. What is the import of AM No 12-11-12 SC? Provided

for the additional rules on provisional dismissal.

(a) When the delays are due to the absence of an

essential witness whose whereabouts are unknown or
cannot be determined and, therefore, are subject to
exclusion in determining if, compliance with the
prescribed time limits which caused the trial to exceed
one hundred eighty (180) days, the court shall
provisionally dismiss the action with the express consent
of the detained accused.
(b) When the delays are due to the absence of an
essential witness whose presence cannot be obtained by
due diligence though his whereabouts are known, the
court shall provisionally dismiss the action with the
express consent of the detained accused provided:
(1) the hearing in the case bas been previously
twice postponed due to the non-appearance of
the essential witness and both the witness and
the offended party, if they are two different
persons, have been given notice of the setting
of the case for third hearing, which notice
contains a warning that the case would be
dismissed if the essential witness continues to
be absent; and
(2) there is proof of service of the pertinent
notices of hearings or subpoenas upon the
essential witness and the offended party at
their last known postal or e-mail addresses or
mobile phone numbers.
(c) For the above purpose, the public or private
prosecutor shall first present during the trial the essential
witness or witnesses to the case before anyone else. An
essential witness is one whose testimony dwells on the
presence of some or all of the elements of the crime and
whose testimony is indispensable to the conviction of the
accused.

Note: Provisional dismissal is also used by the

prosecutor especially in the instance of procuring
witnesses and to buy time in doing so. However, the case
cannot also be provisionally dismissed for a looooong
time. It is subject to exceptions such that if it is
permanently dismissed, it is tantamount to an acquittal.

315. Difference between Motion to Withdraw Information

and Motion to Dismiss. The order granting the
withdrawal of the information attains finality after 15 days
from receipt thereof, without prejudice to the refiling of the
information upon reinvestigation. While the order
granting a motion to dismiss becomes final 15 days after
receipt thereof, with prejudice to the re-filing of the same
case once such order achieve finality. A motion to
dismiss when filed thus puts into place the time-bar rule
on provisional dismissal.

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Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018
Note:
These are the Crim Pro Recitation Questions by Atty. Soleng
for Finals. Some answers have been given but please take
note that these are not the 100% guaranteed correct
answers. Also, this may contain grammatical errors kay
kapoy na proofread. Sorry hehe God bless to us, guys!
CGDP
RULE 118—PRETRIAL
1. What is pre-trial? proceeding before the trial proper for
the purpose of considering:
(1) Plea bargaining
(2) Stipulation of facts
(3) Making for identification of evidence
(4) Waiver of objections to admissibility of evidence
(5) Modification of the order of the trial if the accused
admits the charge but interposes a lawful defense
(6) Other matters that will promote a fair and
expeditious trial of the criminal and civil aspects
2. Why is it mandatory? It is mandatory in the SB, RTC
and MTC. It is especially important since no evidence
shall be allowed to be presented and offered during trial
other than those identified and marked during the pre-
trial except when allowed by the court for good cause.
3. May there be a pre-trial before the Office of the
Prosecutor? None, because the Office of the
Prosecutor does not conduct trial, the same as OMB.
4. What about in the Court of Appeals? Or SC? No, they
are both appellate courts that do not have original
jurisdiction of conducting trial for criminal cases
5. What about the Labor Arbiter? Nope, that is not a
criminal case.
6. Is pre-trial in a civil case mandatory? Yes
7. When are you supposed to conduct pre-trial?
8. At all time? No, if accused is under preventive
detention, then within 10 days after the raffle of the case
9. What if X, accused fails to appear in the pre-trial
conference? There will be a waiver on his opportunity
for plea bargaining.
10. What is the effect when the accused does not
appear in the pre-trial? Plea bargaining deemed
waived
11. What is the effect if the private offended party fails
to appear? Plea for Lesser offense
12. Supposing the counsel of the accused failed to
appear? Why would you sanction him? He has
contributed to the delay on the prosecution of the case
or the criminal proceedings; in effect right to speedy trial
violated
13. Prosecutor absent? Same effect and same reason as
the counsel of the accused
14. Difference between preliminary conference and pre-
trial conference? Preliminary conference—
1
Comparison and marking of the documentary exhibits
done before the Branch Clerk of Court; Pre-trial
conference—done before the judge to consider the
other matters of pre-trial other than the marking of
documentary evidence, such as but not limited to
studying the allegations, the statements in the affidavits
of witnesses and other documents which form part of the
PI
15. Why is it important to record the proceedings? All
agreements and admissions made or entered during the
pre-trial conference shall be (1) reduced in writing, and
(2) signed by the accused and counsel. If this is not
followed, such admissions cannot be used against the
accused. likewise, the proceedings during the
preliminary conference shall be recorded in the Minutes
of Preliminary Conference to be signed by both parties
and counsel.
16. What is plea bargaining? Accused and the
prosecution work a mutually satisfactory disposition of
the case, subject to court approval. As a rule, it must be
with the consent of the offended party. Usually, it
involves the pleading guilty to a lesser offense
17. You were charged with rape, you want to plea
bargain to slight physical injuries, can it be done?
No, slight physical injuries is not considered necessarily
included in the offense charged.
18. Duty of the Judge when a plea bargaining is agreed
upon.
(1) Issue an order to that effect
(2) Proceed to receive evidence on the civil aspect of
the case
(3) Render and promulgate the judgment of conviction
including the civil liability or damages duly
established by evidence
19. Why should the judge still ask for evidence for the
civil aspect of the case? To determine civil liability,
there is a different quantum of proof needed. It is only
mere preponderance of evidence, in contrast to criminal
cases which require guilt beyond reasonable doubt.
20. What is pre-trial order? It is an order issued by the
judge setting forth the actions taken during the pre=trial
conference—the facts stipulated, the admissions made,
the evidence marked, the number of witnesses
presented and the schedule of trial. Remember, the Pre-
Trial Order governs the entire trial
21. What is the difference between the pre-trial in a civil
case and that in a criminal case?
(1) In Civil Case—preceded by a motion ex parte to set
the case for pre-trial; the purpose is to consider the
possibility of amicable settlement or of submission
to alternative modes of dispute resolution; sanction
for non-appearance is upon the non-appearing
party; parties are required to file and serve their pre-
trial briefs
(2) In Criminal Case—motion is not needed to set pre-
trial in order; amicable settlement is not its purpose;
sanction for non-appearance is imposed upon the
counsel of the prosecutor; no pre-trial briefs are
required
22. What is the sanction if non-appearance in civil
case? If it is the plaintiff who does not appear—
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Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018
dismissal of the case; If it is the defendant who does not
appear—the presentation of evidence will be done ex
parte
23. Is pre-trial brief mandatory in criminal case? In civil
case? It is not mandatory in criminal cases, unlike in civil
cases.
24. What is the effect of non-submission of pre-trial
briefs in a civil case? Failure to file the pre-trial brief
shall have the same effect as failure to appear at the
pre-trial
25. Effect in criminal case? Pre-trial briefs are not
mandatory in criminal cases because it must be
recognized that the accused should be afforded some
leeway. When you say brief, it encapsulates your
case—put all your admissions, denial, witnesses to
present, provide modes of discovery and others.
26. What is JDR? Judicial Dispute Resolution is an
innovative concept in the judicial system. It is a process
whereby the judge (JDR judge) employs conciliation,
mediation or early neutral evaluation in order to settle a
case at the pre-trial stage. In the even the JDR fails, then
another judge (Trial judge) shall proceed to hear and
decide the case.
27. Purpose of JDR. It hoped that mediation and
conciliation at the level of the judge would contribute
significantly to the resolution of mediatable cases,
thereby increasing the satisfaction of litigants.
28. Why would it avoid the clogging of court dockets? It
aims to strengthen conciliation during the pre-trial stage
in order to expedite the resolution of cases
29. What is CAM? Court-Annexed Mediation is a voluntary
process conducted under the auspices of the court by
referring the parties to the Philippine Mediation Center
Unit for the settlement of their dispute, assisted by a
Mediator accredited by the SC
30. What cases is JDR necessary?
(1) All civil cases, settlement of estates and cases
covered by the Rules of Summary Procedure
(except criminal cases as it may be a source of
corruption), and those which by law may not be
compromised (Article 2035, NCC)
(2) Cases cognizable by the Lupong Tagapamayapa
(3) Civil aspect of BP 22 cases
(4) Civil aspect of quasi-offenses
(5) Civil aspect of criminal cases where the imposable
penalty does not exceed 6 years and the offended
party is a private person
(6) Civil aspect of theft, estafa and libel
Note: All cases which are not successfully settled in
the CAM will be subject to JDR
31. There is a rape charge. The accused bargained
regarding the civil liability amounting to 1M. may it
be a proper subject of JDR and CAM? No, it is not
provided that the civil aspect of rape may be a subject
of JDR and CAM
32. There is a theft case. During the schedule
mediation, there was a compromise to lower its
2
claims. Is this a proper subject of mediation? Yes,
the civil aspect of theft may be a subject of which.
33. In the above case, with the claim reduced, can the
accused ask the judge to lower the penalty? No, the
reduction of the penalty pertains to the criminal aspect
which cannot be the subject of the JDR or CAM. With
regard to the matters that can be mediated, trial court
will refer the matter to mediators (Philippine Mediation
Center—they are not lawyers). If the mediation is not
successful, the entirety of the records will be forwarded
to the office of the judge. The judge will schedule the
JDR. The judge will act as mediation-conciliator
34. If the JDR judge will say that the case will definitely
be not in favor of the accused, is the judge biased
here? No, as a neutral evaluator, it is his role to assess
the relative strength and weakness of each party’s case
35. What is the role of the JDR judge?
(1) Mediator and conciliator—facilitates the settlement
discussions
(2) Neutral evaluator—assesses the relative strength
and weakness of each party’s case and makes a
non-binding and impartial evaluation of the chances
of each party’s success
36. Is the mediation process confidential? Yes, all JDR
conferences shall be conducted in private. The JDR
judge cannot pass on any information obtained thereon
to the trial judge or to any other person
37. Supposing the JDR proceedings was not
successful, may the JDR judge continue in handling
the case? As a general rule, no. The trial judge should
remain impartial. The JDR judge will inevitably have his
own resolutions and reservations that can affect his
impartiality. However, if the parties insist na same judge,
okay ra di na mag raffle balik
38. What is viatory right? Usually in civil cases where if
the witness is required to be present during a hearing
and he lives 100 km away from the court, he can invoke
his viatory right.
39. May you conduct deposition in a criminal case?
(People vs Webb) Yes, BUT it is subject to the sound
discretion of the court.
40. How is it different from the conditional examination
of witnesses? The conditional examination of
witnesses can ONLY BE DONE BEFORE THE TRIAL
(in that short window before trial) under those grounds
cited. However, the deposition can be done DURING
trial which is subject to the discretion of the trial court.
41. May the prosecutor conduct the conditional
examination of witnesses? As a rule, it is the court that
can conduct such but the prosecutor may be allowed to
conduct the conditional examination of witnesses upon
request to the trial court (See Sec 12-13, Rule 119)
42. Conditional examination by the prosecution and by
the defense difference. The necessity of the
conditional examination of the witnesses for the
accused must be shown to the satisfaction of the court—
(1) witness is sick or infirm, (2) he resides more than 100
km from the place of trial and has no means to attend
the same, or (3) similar circumstances exist that would
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Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018
make him unavailable or prevent him from attending.
However, the witness for the prosecution may be
conditionally examined when it satisfactorily appears
that such witness is too sick to appear or has to leave
the Philippines with no definite date of returning.
43. What are the grounds for the Defense to ask for the
conditional examination of the witnesses? Sec 12,
Rule 119
(1) witness is sick or infirm as to afford reasonable
ground to believe that he will not be able to attend the
trial
(2) he resides more than 100 km from the place of trial
and has no means to attend the same, or
(3) similar circumstances exist that would make him
unavailable or prevent him from attending.
44. Witness for the Prosecution? Sec 15, Rule 119
It satisfactorily appears that such (1) witness is too sick
to appear or (2) has to leave the Philippines with no
definite date of returning
45. What is the difference between the place of the
conditional examination if the witness is from the
prosecution and if he/she is from the defense? The
conditional examination if the witness is from the
prosecution, it can be done before the court where the
case is pending. However, the conditional examination
of the witness from the defense can be done outside the
court where the case is pending. The rationale is to give
everything to the accused—give him the right to confront
witnesses and give the accused the full opportunity to
present his defense.
46. The prosecutor is asking for the conditional
examination of witness who is in US. Can it be
done? No, being the prosecutor’s witness, the
conditional examination can only be done before the
court where the case is pending.
3
RULE 119—TRIAL AND DEMURRER TO EVIDENCE
47. When should trial commence? Not later than 30 days
from the receipt of the pre-trial order
48. When should the arraignment of the accused be
conducted? Within 30 days from when the court
acquires jurisdiction over the person of the accused
49. Supposing the person is under detention, when are
you supposed to conduct your arraignment? Within
10 days from the date of the raffle of the case and the
records transmitted to the judge
50. There are periods which are excluded. What are
these? Time when the Motion to Quash and Bill for
Particulars and other matters will be processed
51. When shall pre-trial commence? Within 30 days after
arraignment
52. Supposing the accused was arrested in Jan 2017
but in sept 2017, he is yet to be arraigned; if you are
the counsel, what you shall do? File a Motion to
dismiss on the ground of violation of the right to speedy
trial
53. Court scheduled the case for arraignment on Oct. 2,
assuming on the said date the accused was
arraigned. On Oct. 3, you filed a motion to dismiss
on the ground that the right of the accused to
speedy trial was violated because he was arraigned
after the lapse of several months. May that motion
prosper? No, it is deemed waived when the counsel
allowed the accused to be arraigned.
54. What are the delays which should be excluded in the
counting of the commencement of trial?
(1) The 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 delay does not
exceed 30 days)
(5) Orders of inhibition or change of venue
(6) Finding of the existence of probable cause
(7) Absence or unavailability of an essential witness
(8) Mental incompetence or physical inability of the
accused to stand trial
(9) Continuance
55. Who is a material witness? A material witness is one
whose testimony is so essential and indispensable to
the trial
56. What are the requisites in order for the absence of
the witness be considered as an excuse for a valid
delay? To justify the delay, the witness cannot be just
any witness. He must be an essential witness. The
essential witness is absent when: (1) whereabouts are
unknown; or (2) whereabouts cannot be determined by
due diligence. The essential witness is unavailable
when even if his whereabouts are known, provided that
that his presence for the trial cannot be obtained by due
diligence.
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57. What is a continuous trial? once commenced, the trial
shall continue from day to day as far as practicable until
terminated but it may be postponed for a reasonable
period of time for a good cause.
58. Grounds for a valid continuance.
(1) Failure to grant such continuance will render the
continuation of the proceedings impossible or result
in a miscarriage of justice
(2) Case itself is so novel (e.g. numerous accused) that
it is impracticable to expect adequate preparation
within the periods prescribed
59. What are the prohibited grounds for a continuance?
(1) Congestion of the court’s calendar
(2) Lack of diligent preparation
(3) Failure to obtain available witnesses on the part of
the prosecutor
60. Period for trial. Should not exceed 180 days from the
first day of trial except as otherwise authorized by the
SC
61. How do you secure the attendance of a material
witness? First, either party may ask the court to issue a
subpoena to require his attendance. If he does not
appear then either party may, upon MOTION, secure an
order form the court for a material witness to post bail, if
the court is satisfied upon either (1) proof or (2) oath that
a material witness will not testify when required. If the
witness refuses to post bail, the court shall commit him
to prison until he complies or is legally discharged after
his testimony has been taken
62. Who is a state witness? Witness for the prosecution.
He is not necessarily an accused of the case.
63. How do you discharge an accused as a state
witness (Requisites)?
(1) Prosecutor will file a Motion for the Discharge of the
Accused
(2) File the Motion before the prosecution rests its case
(3) Upon receipt of such motion, the court shall require
the prosecution to present evidence and the sworn
statement of each proposed sate witness
64. What conditions must be present to qualify an
accused to be discharged as a state witness?
(1) 2 or more accused are jointly charged
(2) accused to be discharged gives his consent
(3) trial court is satisfied that:
i. There is absolute necessity for the
testimony of the accused
ii. There is no other direct evidence
available
iii. The testimony can be substantially
corroborated in its material points
iv. Said accused does not appear to be the
most guilty
v. Said accused as not at any time been
convicted of any offense involving moral
turpitude
(4) Accused should not appear to be the most guilty
65. What will happen to the evidence during the
discharge? Is it automatically reproduced? The
evidence adduced in support of the discharge shall
automatically form part of the trial. if the court denies the
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motion for discharge, his sworn statement shall be
inadmissible in evidence (Sec 17, Rule 119).
Remember, not only his sworn statement but anything
that is attached as against the accused cannot be used
against him
66. What is the effect if the accused is discharged as a
state witness? The discharge 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.
67. What if you are the judge and you have a charge of
rape, however you find out that the crime committed
is not really rape but some other crime out there?
What will you do? Order for the substitution of the
complaint or information
68. What is the order of the trial?
(1) The prosecution shall present evidence first (a) to
prove the charge and (b) to prove the civil liability in
the proper case.
(2) The accused may present evidence to prove his
defense, and damages he sustained, if any, arising
from the issuance of a provisional remedy in the
case.
(3) The prosecution and the defense may, in that order,
present rebuttal and surrebuttal evidence unless
the court, in furtherance of justice, permits them to
present additional evidence bearing upon the main
issue.
(4) Upon admission 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).
69. What is rebuttal evidence? Evidence to oppose or
disprove the evidence presented by his opponent
70. What is surrebuttal evidence? Rebuttal to the other
party’s rebuttal. Give the parties a chance to present all
their evidence.
71. What is reverse trial? When the accused admits to the
charge but invokes a justification or exculpatory
defense. It will now be the accused who will present the
evidence first. Thus, there is a modification of the order
of trial or reverse trial.
72. May the trial court reopen the case despite there is
already a final judgment of conviction? Yes, at any
time before the finality of the judgment, the judge may,
MOTU PROPIO or UPON MOTION, WITH HEARING in
either case, re-open the proceedings to avoid a
miscarriage of justice. The proceedings shall be
terminated within 30 days from the order granting it.
73. When does the judgment become final and
executory? The reckoning point is the lapse of the
period within which to file an appeal.
74. What is trial in absencia? Trial will proceed
notwithstanding the absence of the accused during the
proceedings
75. Can the accused be tried in absencia? Is that
allowed? Yes
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76. What are the requisites of a valid trial in absencia?
The following requisites must CONCUR:
(1) Accused has already been arraigned
(2) Accused has been duly notified of the trial
(3) The absence of the accused is unjustified
77. What are the instances when the accused has to be
present?
(1) Arraignment and plea
(2) During trial, whenever necessary for identification
(3) Promulgation of sentence, unless it is for a light
offense, in which case, the accused may appear by
counsel or representative
78. Can the accused send someone else to appear
during arraignment in his behalf? No, the accused
should personally appear during arraignment in order to
be properly apprised of the nature and cause of the
accusation against him.
79. Can the accused waive the requirement of his
presence for purposes of identification? The
accused’s counsel will inform the court and agree that
every time the witness will try to identify the accused, he
is the same person who is the accused in the case and
the same person who entered the plea. This is to save
the accused from embarrassment of being pointed out
as the accused in front of everyone
80. During trial, can the judge propound questions on
the witness? As a rule, he cannot, as if he is the one
conducting direct examination and cross examination.
He can only ask clarificatory questions. He has to
appear and remain as an impartial judge
81. What is meant by cold neutrality of an impartial
judge? The judge must not only be impartial but appear
impartial all throughout the trial. (Under the new set of
rules of civil procedure, the judge is allowed to ask
questions. He should not only be a passive judge but
must propound questions during the hearing. The
counsels of the plaintiff and defendant can object to the
questions asked by the judge. However, necessarily it is
the judge who will rule on the objections made by the
counsels on his own questions. BUT FOR CRIMINAL
CASES, it is not allowed.)
82. What is the importance of formally offering one’s
evidence? The Court considers the formal offer of
evidence as necessary because the findings of fact and
the judgment of the trial court are based on the evidence
offered by the parties. Documents which have been
identified and marked as exhibits during the pre-trial but
which were not formally offered in evidence cannot, in
any manner, be treated as evidence.
83. Are there exceptions (to formally offering one’s
evidence)? 2 requisites must CONCUR:
(1) Evidence was duly identified by testimony duly
recorded
(2) Evidence was incorporated in the records of the
case
Note: Another exception is (1) when the court takes
judicial notice of adjudicative facts or (2) where the
court relies on judicial admissions or draws
inferences from such judicial admissions or (3) trial
court determines the credibility even without the
offer of the demeanor as evidence.
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Sec. 23, Rule 119. Demurrer to evidence. After the prosecution
rests its case, the court may dismiss the action on the ground of
insufficiency of evidence (1) on its own initiative after giving the
prosecution the opportunity to be heard or (2) upon demurrer to
evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of
court, the accused may adduce evidence in his defense. When
the demurrer to evidence is filed without leave of court, the
accused waives his right to present evidence and submits the
case for judgment on the basis of the evidence for the
prosecution.
The motion for leave of court to file demurrer to evidence shall
specifically state its grounds and shall be filed within a non-
extendible period of five (5) days after the prosecution rests its
case. The prosecution may oppose the motion within a non-
extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to
evidence within a non-extendible period of ten (10) days from
notice. The prosecution may oppose the demurrer to evidence
within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer
to evidence or the demurrer itself shall not be reviewable by
appeal or by certiorari before the judgment.
84. What is demurrer to evidence? It is an objection by
one of the parties in an action, to the effect that the
evidence which his adversary produces is insufficient in
point of law, whether true or not, to make out a case or
sustain the issue
85. While the prosecution is presenting its evidence,
can the other party file a motion for leave of court to
file his demurrer? No, demurrer to evidence must be
done after the prosecution has rested its case.
86. What is leave of court? Permission you ask to the trial
court for you to file your demurrer of evidence and other
pleadings.
87. Why is leave of court necessary (focus on the effect
if you file your demurrer with or without leave of
court)? If you filed your demurrer with leave of court and
the trial court denied your demurrer, the party can still
present their evidence. If you directly file your demurrer
without leave of court, you are no longer allowed to
present evidence. It is deemed waived.
88. When are you supposed to file your leave of court?
File the motion for leave to file the demurrer within a
non-extendible period of 5 days after the prosecution
has presented its case. In fact, the prosecution is given
the same period to oppose.
89. If your motion for leave is granted, when are you
supposed to file your demurrer? The accused shall
file the demurrer within a non-extendible period of 10
days from notice. The prosecution may oppose the
demurrer within a similar period.
90. What if the trial court granted the demurrer?
Amounts to an acquittal
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91. Can you file a MR? What if appeal? No in both cases.
The only remedy is a petition under Rule 65 for a finding
of grave abuse of discretion.
92. What if the demurrer is not granted? Participate in the
trial, present his evidence (provided it is with leave of
court) and if still convicted, appeal and cite it as a ground
of your appeal that the trial court erred in denying the
demurrer despite the insufficiency of evidence.
93. Can the accused not file a petition under Rule 65,
instead of participating in the trial? Remember Gloria
Macapagal-Arroyo, class. She was accused of
corruption. After the prosecution ended its presentation
of evidence, she filed a demurrer with motion for leave.
The demurrer was denied by the Sandiganbayan.
Instead of participating in the trial, she filed a petition
under Rule 65. Tita Conchita said, “Are you bogo?? You
cannot file that naman oy”. HOWEVER, SC said Rule
65 is allowed if there really is a finding of grave abuse of
discretion. SC CAN REVIEW IF THERE REALLY IS A
GRAVE ABUSE OF DISCRETION. SC said, that is their
constitutional duty to review lower court decisions when
it is done with grave abuse of discretion. (Remember
this is a 2017 ruling) Mao na siya, Tita GMA was
acquitted.
94. Difference of a demurrer in civil and criminal cases.
Civil cases
(1) requires no prior leave of court;
(2) when the demurrer is denied, the
defendant does not lose his right to
present evidence;
(3) if the demurrer is granted, the plaintiff may
appeal and if the dismissal is reversed, the
defendant is deemed to have waived his
right to present his evidence;
(4) it is the defendant who invokes a demurrer
by moving for the dismissal of the case.
Criminal case
(1) filed with or without leave of court
(2) accused may adduce his evidence in his
defense only when the demurrer that was
denied was filed with leave of court.
(When filed without leave of court and the
demurrer is denied, the accused waives
his right to present evidence and submits
the case for judgment on the basis of the
evidence of the prosecution)
(3) no appeal allowed when demurrer is
granted
(4) court may, on its own initiative, dismiss the
action
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RULE 120—JUDGMENT
95. What is judgment? Adjudication by the court that the
accused is guilty or not guilty of the offense charged and
the imposition upon him of the proper penalty and civil
liability
96. What is a judgment of acquittal? Judgment by the trial
court after the trial rendering the accused not guilty for
the crime charged
97. What are the requisites of a judgment?
Formal requisites:
(1) Written in the official language
(2) Personally and directly prepared and signed by the
judge
(3) Contain clearly and distinctly a statement of:
a. Facts
b. Law upon which it is based
Jurisdictional requisites:
(1) JD over subject matter
(2) JD over territory
(3) JD over person
98. Under the Constitution, the judgment should
contain the facts and the law upon which the
decision is based upon. What is the rationale behind
this? I think part ni siya sa substantive due process, in
order to apprise the parties of facts and reason behind
the judgment
99. What are the contents of this judgment of acquittal
or conviction?
Judgment of conviction shall state:
(1) Legal qualification of the offense constituted by the
acts committed
(2) Aggravating and mitigating circumstances
(3) Participation of the accused (principal, accomplice
or accessory)
(4) Penalty imposed
(5) Civil liability or damages caused, unless the
enforcement of the civil liability by a separate civil
action has been reserved or waived
Judgment of acquittal shall state:
(1) WON the evidence of the prosecution:
a. Absolutely failed to prove the guilt beyond
reasonable doubt; or
b. Merely failed to prove his guilt
(2) Determine if the act or omission from which the civil
liability might arise did not exist
100. Why is there a need to state if the prosecution
absolutely failed or merely failed to prove the guilt
of the accused? To determine the civil liability or the
existence of the civil liability of an accused.
101. How is the entry of judgment made? After a judgment
has become final, it shall be entered accordingly with
Rule 36. It shall be entered by the clerk in the book of
entries of judgment.
102. Is a judgment written in Cebuano valid? No, the
official language under the Constitution is either English
or Filipino
103. Supposing you are the judge, and you were the one
who heard the case. However, on October 30, 2017,
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you were already appointed to the appellate court
and you have accepted such appointment. A new
judge cam in on November 1, 2017 and considering
that it was already towards the end of the
promulgation of judgment, can the new judge
render the judgment? Yes, as long as he has studied
the case and has made his own conclusions based on
evidence. The fact that the trial judge who rendered the
judgment was not the one who had the occasion to
observe the demeanor of the witnesses during trial, but
merely relied on the records of the case, does not render
the judgment erroneous, especially where the evidence
on record is sufficient to support its conclusion.
104. Supposing you were the judge and on September
30, 2017, you already retired prior to that on July
2017, you already drafted the decision in the
criminal case but promulgation was scheduled only
on October 2017. May the new judge be allowed to
promulgate such? No, the old judge cannot just leave
the promulgated copy in the office. The new judge has
no authority to just merely sign the promulgation of the
old judge. It is important to note that the retired judge
has no longer authority at all to actually make that
judgment. The judge’s authority must be until the
promulgation of the judge. What the new judge should
do is to check the records, take a look at the decision.
After doing so, he may simply cut and paste and sign it
as if it was his own.
105. What is the retirement age of a judge? 70 years old
106. What is the rule on variance? (Sec 4, Rule 120) The
offense PROVED is different from the offense
CHARGED in the complaint or information and the
offense CHARGED is either included in the offense
PROVED or necessarily includes the offense PROVED.
In this case, the accused shall be convicted of the
offense proved or of the offense charged. Remember,
under the Variance rule, you cannot be convicted of a
higher offense.
107. What is the exception of the variance rule? Doctine
of supervening event (PI to Homicide).
108. What is this doctrine of supervening event?
A supervening cause is an event that operates
independently of anything else and becomes the
proximate cause of an accident.
109. If the accused was in the ICU for 5 years, however
the victim fully recovered right before the
promulgation of the judgment. The original
information was for frustrated homicide. Can he
only convicted for physical injuries due to this
supervening event? No, under this doctrine of
supervening event, the offense becomes greater in
character, not lesser.
110. If the charge is murder, can the accused just be
convicted of slight physical injuries? No, one
element of murder is that the victim has died. However,
physical injuries are covered by homicide cases.
111. If the charge is murder, then what was proved was
homicide, pwede? Yas, homicide is necessarily
included in murder, vice versa
7
112. If the charge is homicide, then what was proved
was murder. Can the accused be convicted for
murder? No, the accused here shall only be convicted
for homicide. The accused’s righ to be informed of the
nature and cause of the accusation against him will be
violated. (I think ang i-consider first is WON the offense
charged is necessarily included or necessarily includes
the offense proved. Thereafter, the accused can only be
convicted of the offense beneficial to him)
113. If the charge is rape but only acts of lasciviousness
was proved, can he be convicted for acts of
lasciviousness? Yes, acts of lasciviousness is
necessarily included in the charge of rape
114. Someone was charged with murder and the
qualifying circumstance of evident premeditation
was included in the information, but during the trial,
what was proved was treachery. Can he be
convicted of murder? Yes, herein there is only a
variance in the mode of commission of the offense, not
variance in crime. The variance is not a bar to his
conviction of the crime charged. A variance in the mode
of commission of the offense is binding upon the
accused if he fails to object to the evidence showing that
the crime was committed in a different manner that what
was alleged.
115. What if the accused objects to the presentation of
evidence on the ground that it is a different mode of
commission alleged in the information? Is it
allowed? Sustain the objection. It becomes violative of
the right to informed. The prosecution’s remedy is
substantial amendment.
116. How is judgment promulgated?
GR: it is done by reading it in the presence of the
accused and any judge of the court in which it was
rendered.
EXC:
(1) conviction for a light offense—it may be
pronounced in the presence of his counsel or
representative.
(2) Accused is confined in another province or city, the
judgment may be promulgated by the EXECUTIVE
JUDGE OF THE RTC having JD over the place of
confinement
The judgment may be promulgated by the CLERK OF
COURT if the judge is absent or outside the province or
city
117. What if the accused fails to attend such
promulgation? Accused fails to attend despite notice,
promulgation shall not be suspended. If it is for
conviction, the accused will lose the remedies available
to him against the judgment and the court shall order his
arrest. However, he may still avail of such as long as
within 15 days from promulgation, he surrenders and
files a motion for leave of court to avail of the remedies.
118. A person was convicted in the MTC. He was not
around, despite due notice. Can he still avail to
continue the bail? No.
119. Can you modify a judgment? Yes
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120. How do you modify a judgment? Judgment of
conviction may be modified or set aside, upon motion of
the accused, before the judgment becomes final or
before appeal is perfected
121. After the trial court promulgates its judgment, there
are available remedies—one is Motion for New Trial.
What is this motion? At any time before a judgment of
conviction becomes final, the court may, on motion of
the accused or at its own instance but with the consent
of the accused, grant a new trial or reconsideration
122. What are the grounds for filing a Motion for New
Trial?
(a) The errors of law or irregularities prejudicial to the
substantial rights of the accused have been committed
during the trial;
(b) The new and material evidence has been discovered
which the accused could not with reasonable diligence
have discovered and produced at the trial and which if
introduced and admitted would probably change the
judgment.
123. How do we know if such evidence is a “newly-
discovered” evidence? The following need to
CONCUR:
(1) evidence must have been discovered after trial
(2) could not have previously discovered and produced
at the trial even with the exercise of reasonable
diligence (most important!)
(3) new and material evidence
(4) if introduced and admitted, it would probably
change the judgment
124. The accused was acquitted. After acquittal, the
prosecutor was able to get hold of newly discovered
evidence. Can he file a motion for new trial? No,
there will be a violation of the accused’s right against
double jeopardy
125. What is meant by Motion for Reconsideration?
Motion filed before the court to reconsider (1) errors of
fact in the judgment (e.g. accused was charged and
convicted of Frustrated Homicide and the accused
contends that it is only physical injuries; prosecution
brushed aside the evidence you presented; only the
evidence of the defense was entertained) or errors of
law in the judgment (e.g. error in the application of law;
for ex. filed special civil action for certiorari instead of
ordinary appeal), both where it requires no further
proceedings, and not on newly-discovered evidence
Note: In the MR, you are just pointing out to the trial
court that it should check the records and that it
committed an error.
126. Should both these MR and Motion for New Trial be
in writing? Yes, and it shall state the grounds on which
it is based. If based on newly-discovered evidence, the
motion must be supported by affidavits of witnesses by
whom such evidence is expected to be given or by duly
authenticated copies of documents which are proposed
to be introduced in evidence.
127. What are the effects of allowing a new trial? in all
cases, the original judgment shall be set aside or
vacated and a new judgment shall be rendered
accordingly.
8
128. What is the Neypes Rule? “Fresh Period Rule” Period
for appeal is reckoned not only within 15 days from the
notice of the judgment but also within 15 days from notie
of the final order appealed from.
Note: Remember the 3-fold Rule in Criminal Law. This is
with respect to how the maximum penalty is imposed. It
should not exceed 40 years.
129. What is the effect of judgment of conviction upon a
minor? There will be a suspension of his sentence
130. What if the accused was a minor when he
committed the crime but when the judgment was
promulgated, he was already a major (lolz)? He will
have to serve his sentence
131. What is probation? Disposition under which a
defendant, after conviction and sentence, is released
subject to conditions imposed by the court and to the
supervision of a probation officer
132. If your application for probation was denied, can
you still exercise your right to appeal? No.
133. When does the judgment become final?
(1) After the lapse of the period for perfecting an appeal
(2) When the sentence has been partially or totally
satisfied or served
(3) When the accused has waived in writing his right to
appeal
(4) Applied for probation
134. Difference between Motion for Recon and Motion
for New Trial?
Motion for New Trial—proper only after rendition or
promulgation of judgment but has not become final on
the grounds of fraud, accident, mistake, excusable
negligence and newly-discovered evidence. There has
to be a motion that has to be filed
Motion for Reconsideration—no longer a new trial or
hearing that will take place and the judgment will be
based on the pleadings submitted by the parties.
135. What is recantation? A witness who previously gave
a testimony subsequently declares that his statement
was not true
136. What is an affidavit of desistance? Complainant
states that he did not really intend to institute the case
and he is no longer interested in prosecuting. It is only a
ground for dismissing the case only if the prosecution
can no longer prove the guilt of the accused without the
testimony of the offended party
137. Can recantation be a ground for new trial? If the only
evidence of the prosecution is the testimony which was
withdrawn, then it can be a ground for new trial.
However, if there are other competent evidence to
convict then it cannot be a ground for new trial.
138. Can the affidavit of desistance be a ground for
dismissal? NO. There is nothing in the rules that the
affidavit can warrant the dismissal of the case. However,
it may result to the dismissal of the case if the fiscal
cannot prosecute without the witness’ testimony.
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139. Can you appeal the Motion for New Trial or Motion
for Recon? No, do not appeal such motion. What you
appeal is the decision itself.
140. How is reopening of the case done? 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.
141. When can you file your motion for new trial? file the
motion at any time before the judgment of conviction
becomes final
142. When can you file this reopening of the case? at any
time before finality of the judgment of conviction, the
judge may motu proprio or upon motion, with hearing in
either case, reopen the proceedings to avoid a
miscarriage of justice
143. May the stupidity of the counsel be a ground for
new trial? As a rule, no. However, the exception is
when the mistake is so grave in character that it is
tantamount to the deprivation of the accused of his day
in court. The stupidity resulted very serious prejudice to
the client and the client shows good cause that he
should be granted a new trial
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RULE 122, 124 125—APPEALS
144. What is an appeal? Assailing the correctness of a
judgment of a lower court to the appellate court in order
for it to review the case. In appeal, everything is open
for review, both the criminal and civil aspect.
145. Who may appeal? All parties, including the prosecutor
for as long as it does NOT amount to a violation of the
accused’s right against double jeopardy. In appeal
proceedings, it is the OSG who is supposed to handle
the matter for and in behalf of the RP. However, as a
rule, appeal by the State is not allowed because it
generally amounts to a violation of the accused’s right
against double jeopardy
146. Can the OSG appeal the accused’s conviction or
acquittal? No, he will violate the accused’s right against
double jeopardy. You are putting the accused in another
jeopardy. The purpose of the OSG is to represent the
State when the accused will appeal.
147. Right to appeal is not a natural right, correct? Yes,
it is merely a statutory privilege. It 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.
148. If the accused in the lower court theorized that he
committed the act on self-defense but during the
appeal, the accused retracted and said he did not
commit the offense. Can that be allowed? No, the
party cannot change his theory on appeal, nor raise in
the appellate court any question of law or fact that was
not raised in the court below or which was not within the
issue raised by the parties in their pleadings. this would
be offensive to the basic rules of fair play, justice and
due process.
149. Where will you appeal a decision of the MTC? RTC
through a notice of appeal (this is the ordinary mode of
appeal; you inform the court which rendered the
decision that you appeal the decision)
Note: Notice of Appeal must also be served to the
adverse party
150. From the decision of the RTC, where are you
supposed to go?
If decision of the RTC in the exercise of its appellate
jurisdiction—
(1) CA, via petition for review under Rule 42
If decision of the RTC in the exercise of its original
jurisdiction—
(1) CA, via notice of appeal
(2) when the decision of the RTC is RP or LI—CA via
notice of appeal
(3) Death penalty (no more death penalty now)—
automatic review by the CA
151. Decision of the CA is LI or RP, where will you go?
SC via notice appeal
152. Decision of the CA other than LI or RP, where will
you go? SC via Rule 45 (Petition for review on
certiorari—but it is a misnomer since it is really an
appeal. The real certiorari is Rule 65 which is a separate
and distinct animal from your original case.)
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Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 10

(3) If the appellant escapes from prison or

153. Decision of the CA which is death penalty, where confinement, jumps bail or flees to a foreign country
will you go? SC via automatic review during the pendency of the appeal

154. Decision of the SB (in its appellate jurisdiction) and

SB says the penalty is RP or LI. Where will you go?
SC via notice of appeal

Note: Duty of the Office of the Special Prosecutor of

the OMB is to conduct trial and represent the State
before the SB. Also, remember CA and SB are co-
equal in power

155. Decision of the SB (in its original jurisdiction) and

SB says the penalty is RP or LI. Where will you go?
SC via notice of appeal. There is no distinction when it
is rendered on its appellate jurisdiction

156. Decision of the SB (in its appellate jurisdiction) and

SB says the penalty is BELOW RP or LI. Where will
you go? SC via petition for review on certiorari (Rule
45)

157. Decision of the SB (in its original jurisdiction) and

SB says the penalty is BELOW RP or LI. Where will
you go? SC via petition for review on certiorari (Rule
45). NO DISTINCTION AGAIN

158. Decision of the SB (in its original or appellate

jurisdiction) and SB says the penalty is Death.
Where will you go? SC via automatic review

159. Can you withdraw an appeal? Yes, appellant may

withdraw appeal before the record has been forwarded
by the clerk of court to the proper appellate court. When
the appeal is withdrawn, the judgment becomes final

160. What if the accused already filed his appeal but he

was paroled? The appeal is not deemed withdrawn
despite the parole

161. Effect when only one of the accused appealed? It

shall not affect those who not appeal EXCEPT when the
judgment of the appellate court is favorable and
applicable to the latter

162. A B C D are the accused. A and B appealed.

Appellate court acquitted them. Will the acquittal
benefit C and D? Yes, the decision of the appellate
court is beneficial to them

163. What if C and D jumped bail when the appellate

court rendered their acquittal? It will still benefit C and
D

164. Can you stay the execution of the judgment upon

its appeal? It will stay the execution of the judgment
upon perfection of the appeal with regard to the
appealing parties only

165. What if the opinion of the SC en banc is equally

divided?

166. Grounds for dismissal of the appeal.

(1) If appellant eludes the jurisdiction of the court over
his person
(2) If the appellant fails to file his brief within the time
prescribed by this Rule, except where he is
represented by a counsel de oficio

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Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 11

PROVISIONAL REMEDIES IN CRIMINAL CASES
167. What is provisional remedy? Preservation of the
status quo until final disposition of a matter can occur
168. Nature of provisional remedy. Civil in character but is
also adopted in criminal cases
169. Purpose of the provisional remedies. Protect the
offended party to be ensured of the liability of the
accused against him prior to judgment. It prevents a
judgment to become a “Paper Judgment” (judgment
which cannot be enforced because the assets of the
accused are not enough to cover the judgment)
170. Provisional remedies available in a criminal case.
Preliminary attachment, preliminary injunction,
receivership, replevin or support pendente lite
CONTINUOUS TRIAL
171. What is attachment? Offended party may have the
property of the accused be attached to cover the liability
of the accused upon judgment (does not transfer
ownership to the offended party)
172. What is preliminary injunction?
Mandatory Injunction—ask the court to compel the
accused to do something during the pendency
Inhibitory Injunction—ask the court to prohibit the
accused to do something during the pendency
173. What is receivership? There is a court-appointed
receiver who will take care of the business in
accordance with the approval of the court (e.g.
distressed corporation and the receiver will continue the
business and be answerable not to the accused but to
the court which appointed him as the receiver)
174. Delivery of personal property. Why is it allowed?
Personal properties of the accused which, for example
is the subject of theft charge, will be delivered to the trial
court upon evidence presented by the offended party
that indeed, that personal property is his.
discovered evidence. The CA herein will refer the case
to the court of origin if it grants new trial
178. May the CA conduct trial? 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 original and
appellate jurisdiction. CA is not only a trier of law but is
also a trier of facts. SC is only a trier of law.
179. Difference of new trial and reopening of case.
Motion for new trial presupposes there is already a final
judgment. While the reopening of the case, there is no
final judgment yet
When Motion to Quash is not on the ground as provided
in Rule 117—it should be dismissed
Action to remand the case to the prosecutor’s office to
conduct the necessary PI becomes a prohibitory
pleading if it is filed beyond the 5 day period
MR should be filed within 5 days, not 3 days as provided
in previous rules
Putting the case in the archive is different from
provisional dismissal of the same (look at the grounds
for putting the case in the archive)
Revival of the case within 1 year if penalty is 6 years
below; 2 years if penalty is more than 6 years
Accused can waive the reading of the information to him
if with express consent of the accused and there is a
record of such in the Minutes
Plea bargaining still allowed if complies with all
requisites, as provided
If there is a plea of guilty, trial court must render
judgment immediately except if it is a plea of guilty for a
capital offense
Kapoy na type guys, nagread ra siyas OCA so basa
nalang mo oy

175. What is support pending suit? E.g. VAWC charged

against husband. Wife can also file for support pendent
lite so she can get support from her husband for her and
her children while the case is pending.

Note: No notice to the adverse party, or hearing on

the application is required before a writ of
preliminary attachment may issue as a hearing
would defeat the purpose of the provisional remedy.

176. When is preliminary attachment available?

When the civil action is properly instituted in the criminal
action and in the following cases:
(1) When the accused is about to abscond from the
Philippines
(2) When the criminal action is based on a claim for money
or property embezzled or fraudulently misapplied to the
use of the accused who is a public officer, attorney,
clerk, etc.
(3) When the accused has concealed, removed or disposed
of his property or is about to do so
(4) When the accused resides outside the Philippines

177. May you file for new trial in the CA? yes, the accused
may file for new trial upon the ground of newly-

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