NOTES ON

CRIMINAL
PROCEDURE
DMG:
Includes the Codal
Lifted from Criminal Procedure by Riano

Incorporated some discussions from Dean Vallente’s class
No cases for this version

JP+ET:
Added missing codal and annotated current codal
Added Riano examples, cases, additional annotations
Incorporated Judge Boomsri’s Remedial Law Review discussions
Added laws and circulars prescribed under Judge Boomsri’s Syllabus
Added Revised Guidelines on Continuous Trial

DMG C2020 | CRIMPRO | DEAN VALLENTE 1

& JP+ET C2020 | REMREV | JUDGE BOOMSRI


CHAPTER 1: PRELIMINARY CONSIDERATIONS
“Justice is the ultimate objective of every legal system”
BASIC CONCEPTS
CRIMINAL PROCEDURE
o A generic term to describe the network of laws and rules which governs the
procedural administration of justice
o Lays down the processes by which an offender is made to answer for the
crime he committed
PROCEDURAL LAW (AS APPLIED TO CRIMINAL LAW): Provides or regulates the step by which
one who committed a crime is to be punished
ULTIMATE GOAL OF CRIMINAL PROCEDURE: Harmonizing the governmental functions of
maintaining peace and order and protecting the constitutional rights of his citizens
ACCUSATORIAL/ADVERSARIAL SYSTEM
o The system of procedure in our jurisdiction
o Contemplates two contending parties before the court which hears them
impartially and renders judgment only after trial
o A judge is not permitted to act as an inquisitor
o Starts with a formal indictment called a complaint or information
o Government and the accused present evidence before the court
o Court shall decide either on acquittal or conviction
o Court has passive role and relies largely on the evidence presented by both
sides
INQUISITORIAL SYSTEM
o Court plays a very active role
o Judge actively participates in the gathering of facts and evidence
o Counsels have less active roles than in adversarial
LIBERAL INTERPRETATION OF THE RULES
o The rules on criminal procedure shall be “liberally construed in order to
promote their objective of securing a just, speedy and inexpensive disposition
of every action and proceeding”.
o Case: Erroneous appeal to CA instead of Sandiganbayan; rule on dismissal
was relaxed since the appeal involved a criminal case and a person can be
deprived of liberty.
JURISDICTION: The right to act or the power and authority to hear and determine a cause—
it is a question of law
CRIMINAL JURISDICTION: Authority to hear and try a particular offense and impose the
punishment for it
o The power to deal with the general subject involved in the action
REQUISITES FOR THE EXERCISE OF CRIMINAL JURISDICTION
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o Jurisdiction over the subject matter
o Jurisdiction over the territory
o Jurisdiction over the person
JURISDICTION OVER THE SUBJECT MATTER: Authority of the court to hear and determine a
particular criminal case
o Jurisdiction over the offense charged
§ Not just of the particular case but jurisdiction over the class of
cases to which such particular case belongs
o How conferred: It is the law that confers jurisdiction; jurisdiction must exist
as a matter of law
§ How determined: allegations in the complaint
o Conferment cannot be presumed; it must be clear
o Absent a statutory grant, the assumption of jurisdiction cannot be justified by
convenience or assumed justice or propriety
o Jurisdiction over a criminal case is determined by the allegations in the
complaint or information, not the evidence presented by the parties at the
trial
o Jurisdiction is not determined by the penalty actually imposed after trial but
by the penalty imposable by law on the offense
o It is measured by the law in effect at the time of the commencement of the
criminal action, rather than the law in effect at the time of the commission of
the offense
o More recent ruling: It is determined in relation to the law prevailing at the
time of the filing of the complaint
PRINCIPLE OF ADHERENCE OF JURISDICTION: Once a court has acquired jurisdiction, that
jurisdiction continues until the court has done all that it can do in the exercise of that
jurisdiction
o Example: if the RTC, by virtue of allegations in the complaint already acquired JDN,
but the evidence during trial showed the commission of less serious physical
injuries which is cognizable by MTC, RTC does not lose JDN.
o Court cannot be ousted from the case even by new legislation placing such
proceedings under the jurisdiction of another tribunal
o XPNs:
o Express provision in the statute
o The statute is clearly intended to apply to actions pending before
its enactment
OBJECTIONS ON JURISDICTIONAL GROUNDS
o An objection based on the ground that the court lacks jurisdiction over the
subject matter may be raised or considered motu proprio by the court at any
stage of the proceedings or on appeal
o Questions over jurisdiction may be cognizable even if raised for the first time
on appeal
o XPN: A party may be estopped from questioning the jurisdiction of the court
for reasons of public policy as when he initially invokes the jurisdiction of the
court and later on repudiates the same jurisdiction (Tijam v. Sibonghanoy)
o As when he secures affirmative relief and after obtaining or failing
to obtain the same, repudiate or question the same jurisdiction
2

o But Tijam is only the exception, not the general rule.
JURISDICTION OVER THE PERSON OF THE ACCUSED: The authority of the court over the
person charged
o Requires that the person charged with the offense must have been brought
into its forum for trial:
§ forcibly by warrant of arrest or
§ upon his voluntary submission to the court
o It is the arrest or voluntary submission of the accused which enables the
court to acquire jurisdiction over his person
o One who seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court
§ by his pleading to the merits (i.e. filing a motion to quash)
§ When the accused appears for arraignment
§ enters into a counsel-assisted plea and actively participates in the
trial and presents evidence for the defense
§ Filing for bail or filing a motion for reduction of bail
ACTS SEEKING AFFIRMATIVE RELIEF THAT DO NOT CONSTITUTE A VOLUNTARY
APPEARANCE OR SUBMISSION TO THE JURISDICTION OF THE COURT
o Questioning the jurisdiction of the court
o Motion to quash the warrant of arrest
o Boomsri: Unlike in Civil Cases, the lawyer in Criminal Cases can make a
special appearance questioning the jurisdiction over the person of the
accused
TRIAL IN ABSENTIA
o Boomsri: If jurisdiction over the accused has already been obtained, as when
he files bail, but he subsequently absents himself from trial, can the court
still render judgment? Not yet. He needs to be arraigned first. In this case,
jurisdiction over the person is not enough.
CUSTODY OF THE LAW (WHICH IS DIFFERENT FROM JURISDICTION OVER THE PERSON)
o Required before the court can act upon the application for bail
o Not required for the adjudication of other reliefs sought (only bail)
o Signifies restraint on the person; Literally custody over the body of the
accused
o One can be under the custody of the law but not yet subject to the jurisdiction
of the court over his person
§ Such as when a person arrested by virtue of a warrant files a motion
before arraignment to quash the warrant
o One can also be subject to jurisdiction of the court over his person and yet
not be in the custody of the law
§ As when an accused escapes custody after his trial has
commenced
o Case: MTC denied motion for redetermination of probable cause on the
ground that it has no JDN over the accused yet because it was filed prior to
his arrest. MTC confused custody of law and JDN here. Custody is not
required for reliefs except bail (David v. Agbay).
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 | REMREV | JUDGE BOOMSRI
GENERAL RULE: Injunction will not be granted to restrain a criminal prosecution
EXCEPTIONS:
o When the injunction is necessary to afford adequate protection to the
constitutional rights of the accused
o When it is necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions
o When there is a prejudicial question
o When the acts of the officer are without or in excess of authority
o Where the prosecution is under an invalid law, ordinance or regulation
o When double jeopardy is clearly apparent
o Where the Court has no jurisdiction over the offense
o Where it is a case of persecution rather than prosecution
o Where the charges are manifestly false and motivated by the lust for
vengeance
o When there is clearly no prima facie case against the accused and a motion
to quash on that ground has been denied
GENERAL RULE: The writ of mandamus will not lie to compel criminal prosecution.
o The writ is not available to control discretion. It is a matter of discretion on the
part of the prosecutor to determine which persons appear responsible for the
commission of a crime.
§ XPN: However, the moment he finds one to be so liable or there is
sufficiency of evidence before him, it becomes his inescapable duty
to charge him therewith and to prosecute him for the same. It
becomes mandatory.
JURISDICTION OVER THE TERRITORY: The offense should have been committed or any one
of its essential ingredients should have taken place within the territorial jurisdiction of the
court
o The territory where the court has jurisdiction to take cognizance or to try the
offense allegedly committed therein by the accused
o In criminal cases, territory is jurisdictional, and a court is bereft of jurisdiction
to try an offense committed outside its limited territory
o The rule places the venue of criminal cases either in the court of the
municipality or territory
§ Where the offense was committed
§ Where any of its essential ingredients occurred
o XPNs:
§ Extraterritorial jurisdiction in Art. 2 of the RPC
§ if under the jurisdiction of the Sandiganbayan, always QC Court,
among other special laws.
Boomsri Notes:
o With regard to territorial jurisdiction of the courts, it is important to note that in
criminal procedure, such jurisdiction is within their respective cities. Unlike in
injunction or TRO, where the enforcement is within the NCJR or the whole MM.
CRIMINAL JURISDICTION OF TRIAL COURTS
Note: Use the law at the time of the filing for jurisdiction.
3

MUNICIPAL TRIAL COURT: (BP 129, as amended by RA 7691)
o Exclusive original jurisdiction over all violations of city or municipal ordinances
committed within their respective territorial jurisdiction
o Exclusive original jurisdiction over all offenses punishable with imprisonment not
exceeding six (6) years (look at the maximum penalty)
§ IRRESPECTIVE of the amount of fine and imposable or accessory
penalties, including the civil liability irrespective of kind, nature,
value
§ Except in cases falling within the exclusive jurisdiction of the RTC
and the Sandiganbayan by express provision of law
o e.g. Libel (RTC), Direct bribery (SB)
§ Note: Up to prision correcional, generally MTC.
o Exclusive original jurisdiction over offenses involving damage to property through
criminal negligence
o NOTE: Even if it causes homicide
o Summary procedure in certain cases
§ BP 22 cases
§ Violations of traffic laws, rules, regulations
§ Violations of the rental law
§ Violations of municipal or city ordinances
§ All other criminal cases where penalty is imprisonment not
exceeding 6 months OR a fine not exceeding P1,000, or both
§ Offenses involving damage to property through criminal negligence
where the imposable fine does not exceed P10,000
o Special jurisdiction to decide on applications for bail in criminal cases in the
absence of all RTC judges in a province or city
(Note: DMG omitted Annotations on Rule on Summary Procedure)
Boomsri Notes:
o The MTC has jurisdiction over a criminal case for reckless imprudence resulting
to homicide, because reckless imprudence is just a manner.
o The MTC can also grant civil damages in the amount of P1,000,000 (or beyond
its jurisdiction) for as long as the imposable penalty of the crime does not exceed
6 years. This pertains to the provision that the crime shall be within the jurisdiction
of the MTC, irrespective of the damages
o However, if the case is one purely of fine, MTC has jurisdiction, provided it does
not exceed P4,000 (A.C. 09-94)
o It should be noted that the MTC cannot impose a penalty higher than its
jurisdiction (IMPOSED penalty > 6 years.
o Revised Rules on Summary Procedure is not a substantive law, but merely
remedial. Hence, it does not confer jurisdiction
REGIONAL TRIAL COURT: (BP 129, as amended by RA 7691)
o Exclusive original jurisdiction in all criminal cases not within the exclusive
jurisdiction of any court, tribunal or body, except those now falling under the
exclusive original jurisdiction of the Sandiganbayan
§ They are courts of general jurisdiction. MTC is a court of limited
jurisdiction.
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o Original jurisdiction in the issuance of writs of certiorari, prohibition, mandamus,
quo warranto, habeas corpus and injunction enforceable in any part of their
respective regions
§ These writs may in certain cases be availed of in criminal cases
o Appellate jurisdiction over all cases decided by the MTC within its territorial
jurisdiction
o Special jurisdiction of certain branches to handle exclusively criminal cases as
may be determined by the Supreme Court
o Jurisdiction over criminal cases under specific laws
§ Written defamation
§ Comprehensive Dangerous Drugs Act of 2002
§ Violations of intellectual property rights
§ All cases on money laundering
o XPN: Those committed by (1) public officers and (2) private persons who
are in conspiracy with such public officers shall be under the jurisdiction
of the Sandiganbayan
Boomsri Notes:
o A criminal complaint for Frustrated Homicide was filed against X. The
imposable penalty is one degree lower from Reclusion Temporal, thus
the imposable penalty is Prision Mayor. Which Court has jurisdiction?
o RTC has jurisdiction because the imposable penalty exceeds 6
years.
o What if the defense pleaded incomplete self-defense, which is one
degree lower from Prision Mayor, thus the imposable penalty is Prision
Correccional. Which Court has jurisdiction?
o RTC still has jurisdiction because the basis of determining the
jurisdiction is the imposable penalty without the allegation of
defense
o The prosecutor is not mandated to allege any other
circumstances other than aggravating circumstances and to
allege the elements of the crime (i.e. incomplete self-defense
is not an element of the crime)
CIRCULAR NO. 39-97
o GUIDELINES IN THE ISSUANCE OF HOLD-DEPARTURE ORDERS
o Hold-Departure Orders shall be issued only in criminal cases within the exclusive
jurisdiction of the Regional Trial Courts
o Whenever [a] the accused has been acquitted; or [b] the case has been
dismissed, the judgment of acquittal or the order of dismissal shall include
therein the cancellation of the Hold-Departure Order issued.
SANDIGANBAYAN: (PD 1606, as amended by RA 7975 & RA 8249)
(a) Violations of :
§ RA 3019 (Anti-Graft and Corrupt Practices Act)
§ RA 1379 (Forfeiture), and
§ Chapter 2, Section 2, Title 7, Book 2 of the RPC
o Where one or more of the accused are officials occupying the following
positions, whether in a permanent, acting or interim capacity at the time of
the commission of the offense
4

§ An official no longer has to be a principal accused. He may simply
be an accomplice or accessory
(1) Officials of the executive branch occupying the positions of regional director
and higher or Grade “27” and higher of RA 6758 (Compensation and Position
Classification Act of 1989), specifically including
§ Provincial governors, vice governors, members of the sangguniang
panlalawigan and provincial treasurers, assessors, engineers and
other provincial department heads
§ City mayors, vice mayors, members of the sangguniang
panglungsod, city treasurer, assessors, engineers and other
department heads
§ Officials of the diplomatic service occupying the position of consul
and higher
§ Philippine army and air force colonels, naval captains and all
officers of higher rank
§ Officers of the PNP while occupying the position of provincial
director and those holding the rank of senior superintendent or
higher
§ City and provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special
prosecutor
§ Presidents, directors or trustees, or managers of GOCCs, state
universities or educational institutions or foundations
(2) Members of Congress and officials thereof classified as Grade “27” and up
(3) Members of the judiciary without prejudice to the provisions of the
Constitution
(4) Chairmen and members of Constitutional Commissions, without prejudice to
the provisions of the Constitution
(5) All other national and local officials classified as Grade “27” and higher
(b) Other offenses or felonies whether simple or complexed with other crimes
committed by public officials and employees mentioned in subsection (a) of this
section, in relation to their office
(c) Civil and criminal cases filed pursuant to and in connection with EOs 1, 2, 14 and
14-A, issued in 1986
§ The jurisdiction herein conferred shall be original and exclusive if
the offense charged is punishable by a penalty higher than prision
correccional, or its equivalent, except as herein provided; in other
offenses, it shall be concurrent with the regular courts. (PD 1606).
(d) Exclusive appellate jurisdiction over final judgments, resolutions or orders of RTCs
whether in the exercise of their own original jurisdiction or of their appellate
jurisdiction
(e) Exclusive original jurisdiction over petitions for the issuance of the writs of
mandamus, prohibition, certiorari, habeas corpus, injunctions and other ancillary
writs and processes in aid of its appellate jurisdiction and over petitions of similar
nature, arising or that may arise in cases filed or which may be filed under EOs 1,
2, 14 and 14A, provided that the jurisdiction of these petitions shall not be
exclusive of the Supreme Court
PROVIDED: The RTC shall have exclusive original jurisdiction where the information:
a. Does not allege any damage to the government or any bribery; or
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b. Alleges damage to the government or bribery arising from the same or closely
related transactions or acts in an amount not exceeding P1,000,000.00 (RA
6770).
According to Dean Vallente, “offenses/violations committed by public officers in relation
to their office” is moot by the proviso, since there is no damage to the government.
Boomsri Notes:
o If violation is 3019, 1379, Title 7, SB has jurisdiction if committed by:
§ SG 27 and up, and
§ those enumerated, regardless of SG for as long as enumerated (i.e.,
provincial governors).
o However, if the same persons mentioned above committed other offenses
and violations, in relation to their offices, SB pa rin.
§ In relation to Dean Vallente’s statement, J. Boom said that it is
possible that it can be moot but it would depend on the allegations.
o Jurisdiction of Sandiganbayan over officers of SG 27 is not automatic (i.e. if
it’s not one of those offenses enumerated, and not committed in relation to
their office)
o Does the Sandiganbayan have jurisdiction over the following?
§ Yorme kills his neighbor? No. Because it has no relation to his
office, nor is it intimately intertwined.
§ What if Yorme mobilized the PNP and instructs them to kill his
neighbor? Yes. It may now be argued that there is an intimate
connection between his office and the crime.
§ The allegations provided that former DOJ Sec. De Lima was involved
in a violation of RA 9165 or the DDA during her tenure. It was
alleged that because of her position, she was able to facilitate the
violations allegedly committed by her.
§ SC held that although the allegations provided that the act
committed was done in relation to her office, the specific
provision in RA 9165 conferring jurisdiction over drug
cases to the RTC prevails. Thus, RTC has jurisdiction.
o If the violation of the public official is that relating to RA 3019, RA 1379, etc.,
an allegation that the act was committed in relation to their office or is
intimately intertwined in the information is not necessary.
§ Such allegation in the information is necessary to be alleged when
it is with regard to other offenses or violations done in relation to
their office.
OFFENSES SUBJECT TO THE JURISDICTION OF SB
o Violations of RA 3019 or the Anti-graft and Corrupt Practices Act
o Violations of RA 1379 or An Act Declaring Forfeiture in Favor of the State or Any
Property Found to Have Been Unlawfully Acquired by Any Public Officer or
Employee
o Violations of Chapter 2, Section 2, Title 7, Book 2 of the RPC (bribery in all its
forms including corruption of public officers)
o Other offenses or felonies (aside from above) whether simple or complexed, with
other crimes, committed by public officials mentioned in letter (a) of Sec. 4, in
relation to their office
5

§ The term “other offenses or felonies” are so broad in meaning and
are not restricted to the laws earlier mentioned. BUT: these
offenses must be those committed by officials “in relation to their
office”
o Civil and criminal cases filed pursuant to and in connection with EOs 1, 2, 14 and
14-A, issued in 1986
§ Sec. 2 of EO 1 expressly grants the PCGG the authority to recover
ill-gotten wealth of Marcos and his family, relatives, subordinates
and close associates without designation to their private or public
status.
o All prosecutions under RA 7080 (An Act Defining and Penalizing the Crime of
Plunder”)
The Salary Grade of “27” has no reference to those officers under “specifically including”
(i.e. provincial governors, city mayors, etc).
o These officials are those who are NOT enumerated in letters a-g of Sec. 4(a)(1).
o Those officials are subject to jurisdiction of the SB regardless of salary grades
Salary grade 27 only relates with:
1. Officials of the executive branch
2. Members of Congress or officials thereof
3. All other national and local officials
NOTE: A student regent of a state university is a public officer.
OFFENSES COMMITTED IN RELATION TO THE OFFICE
o “Other offenses or felonies” must be those committed by officials in relation
to their office; the offense cannot exist without the office
o The office must be a constituent element of the crime as defined
by statute
o Like direct bribery, frauds against public treasury, malversation of
public funds, failure of an accountable officer to render accounts,
illegal use of public funds, or any of the crimes committed by public
officers from Art. 204-245 of the RPC
o However, even if the position is not an essential ingredient of the offense
charged, if the information avers the intimate connection between the office
and the offense, this would bring the offense within the definition of an
offense “committed in relation to the public office”
o It is important that the complaint or information must allege the
intimate relation between the offense charged and the discharge of
official duties
o Perpetrated while he was in the performance of official functions
o Cases of “intimately connected”:
o Municipal treasurer capitalized on the functions of his office to
commit estafa
o Acts of lasciviousness committed on a female casual employee
assigned to him as a judge
o Murder as a consequence of his act as a mayor in organizing armed
patrols and provided them with arms
o Case where requirement NOT met:
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o While the amended information against several accused was
alleged to have been committed “in relation to their official duties
as police officers”, it contained no specific allegations that the
shooting was intimately related to the official functions.
o What is controlling is the specific factual allegation in the
information, not the phrase “in relation” as it is a mere conclusion
of law.
o NOTE: If public office is a constituent element of the crime charged, there is
no need for the information to state the specific factual allegations of the
intimacy between the office and the crime charged
In summary, an offense is deemed to be committed in relation to the public office
of the accused when:
a. Such office is an element of the crime charged
b. When the offense charged is intimately connected with the discharge of
the official functions of the accused
DOCTRINE: Private persons may be charged in conspiracy with public officers
o The law does not require that the private person be indicted with the public
officer.
o If the public officer dies, crime is not extinguished, only the officer’s criminal
liability
o Those money laundering cases committed by public officers and private
persons, who are in conspiracy with such public officers shall be under the
jurisdiction of the SB.
PLUNDER R.A. 1379 (FORFEITURE)
The law which declares that any property
found to have been unlawfully acquired
by any public officer or employee shall be
forfeited in favor of the state.
What is sought to be established is the What the court needs to determine by
commission of the criminal acts in preponderance of evidence is the
furtherance of the acquisition of ill-gotten disproportion of respondent’s properties
wealth to his legitimate income.
Hence. Negating the notion that the crime
of plunder absorbs forfeiture cases
APPELLATE JURISDICTION OF THE SB
o In cases where none of the accused are occupying positions corresponding to
salary grade 27 or higher, exclusive jurisdiction shall be vested in the proper RTC
or MTC, pursuant to their jurisdiction as provided in BP 129
o SB shall exercise exclusive appellate jurisdiction over final judgments of RTCs.
JURISDICTION OF COURT OF TAX APPEALS (RA 9282)
Jurisdiction over cases involving criminal offenses as herein provided:
1. Exclusive original jurisdiction over all criminal offenses arising from violations of
the National Internal Revenue Code or Tariff and Customs Code and other laws
6

administered by the Bureau of Internal Revenue or the Bureau of Customs:
Provided, however, That offenses or felonies mentioned in this paragraph where
the principal amount of taxes and fees, exclusive of charges and penalties,
claimed is less than One million pesos (P1,000,000.00) or where there is no
specified amount claimed shall be tried by the regular Courts and the jurisdiction
of the CTA shall be appellate.
2. Exclusive appellate jurisdiction in criminal offenses:
a. Over appeals from the judgments, resolutions or orders of the Regional
Trial Courts in tax cases originally decided by them, in their respected
territorial jurisdiction.
b. Over petitions for review of the judgments, resolutions or orders of the
Regional Trial Courts in the exercise of their appellate jurisdiction over
tax cases originally decided by the Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts in their respective
jurisdiction.
c. Jurisdiction over tax collection cases as herein provided:
1. Exclusive original jurisdiction in tax collection cases involving final
and executory assessments for taxes, fees, charges and penalties:
Provided, however, That collection cases where the principal
amount of taxes and fees, exclusive of charges and penalties,
claimed is less than One million pesos (P1,000,000.00) shall be
tried by the proper Municipal Trial Court, Metropolitan Trial Court
and Regional Trial Court.
2. Exclusive appellate jurisdiction in tax collection cases:
a. Over appeals from the judgments, resolutions or orders of
the RTCs in tax collection cases originally decided by
them, in their respective territorial jurisdiction.
b. Over petitions for review of the judgments, resolutions or
orders of the RTCs in the Exercise of their appellate
jurisdiction over tax collection cases originally decided by
the MTCs, in their respective jurisdiction.
JURISDICTION OF FAMILY COURTS (RA 8369)
Section 5. Jurisdiction of family Courts. - The Family Courts shall have exclusive original
jurisdiction to hear and decide the following cases:
• Criminal cases where one or more of the accused is below eighteen (18) years of age
but not less than nine (9) years of age or where one or more of the victims is a minor
at the time of the commission of the offense: Provided, That if the minor is found guilty,
the court shall promulgate sentence and ascertain any civil liability which the accused
may have incurred.
o The sentence, however, shall be suspended without need of application
pursuant to Presidential Decree No. 603, otherwise known as the "Child and
Youth Welfare Code";
• Cases against minors cognizable under the Dangerous Drugs Act, as amended;
• Violations of Republic Act No. 7610, otherwise known as the "Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act," as amended by
Republic Act No. 7658; and
• Cases of domestic violence against:
DMG C2020 | CRIMPRO | DEAN VALLENTE
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1. Women - which are acts of gender-based violence that results, or are
likely to result in physical, sexual or psychological harm or suffering to
women; and other forms of physical abuse such as battering or threats
and coercion which violate a woman's personhood, integrity and
freedom movement; and
2. Children - which include the commission of all forms of abuse, neglect,
cruelty, exploitation, violence, and discrimination and all other
conditions prejudicial to their development.
i. If an act constitutes a criminal offense, the accused or batterer
shall be subject to criminal proceedings and the corresponding
penalties.
o If any question involving any of the above matters should arise as an incident in any
case pending in the regular courts, said incident shall be determined in that court
o Note: omitted non-criminal cases
JURISDICTION OF SUPREME COURT: (Art. VIII, Sec. 5, Philippine Constitution)
Section 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public
ministers and consuls, and over petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is
in issue.
(c) All criminal cases in which the penalty imposed is reclusion perpetua or
higher.
(d) All cases in which only an error or question of law is involved.
(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such
temporary assignment shall not exceed six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
7

CHAPTER 2: RULE 110 (PROSECUTION OF OFFENSES)
SECTION 1: INSTITUTION OF CRIMINAL ACTIONS
Criminal actions shall be instituted as follows:
a. For offenses where a preliminary investigation is required pursuant to section
1 of Rule 112, by filing the complaint with the proper officer for the purpose
of conducting the requisite preliminary investigation
b. For all other offenses, by filing the complaint or information directly with the
Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint
with the office of the prosecutor. In Manila and other chartered cities, the
complaints shall be filed with the office of the prosecutor unless otherwise
provided in their charters.
The institution of the criminal action shall interrupt the running of the period of prescription
of the offenses charged unless otherwise provided in special laws.
PURPOSE OF A CRIMINAL ACTION: In its purest sense, is to determine the penal liability of
the accused for having outraged the state with his crime and, if he be found guilty, to punish
him for it.
PARTIES TO THE ACTION:
1. People of the Philippines
2. Accused
o The private offended party is regarded merely as a witness for the State
§ His interest is limited to civil liability
PRELIMINARY INVESTIGATION: Required for offenses wherein the penalty prescribed by law
is at least 4 years, 2 months and 1 day (Section 1, Rule 112)
HOW CRIMINAL ACTIONS ARE INSTITUTED: The institution of a criminal action depends
upon whether or not the offense is one which requires a preliminary investigation
1. Preliminary investigation required: A criminal action is instituted by filing the
complaint with the proper officer for the purpose of conducting the requisite
preliminary investigation
2. Preliminary investigation not required: (Either of two ways)
a. By filing the complaint or information directly with the Municipal
Trial Court and Municipal Circuit Trial Court
b. By filing the complaint with the office of the prosecutor (Sec. 1, Rule
110).
3. In Manila and other chartered cities: The complaint shall be filed with the office of
the prosecutor, unless otherwise provided in their charters
o Q: All crimes have to go through the prosecutor. Does this mean all crimes
will require a preliminary investigation? What then is the purpose of it passing
through the prosecutor? Is his function merely ministerial?
o A: Function is not merely ministerial. He still decides whether or not there is
probable cause, and whether or not accused should go to trial
Boomsri Notes:
o In MM and other CC = File in the Prosecutor’s office
o If not MM/CC = determine first whether the crime requires PI (4/2/1)
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o If yes, file with the Prosecutor’s office
o If no, file directly to the MTC (i.e. unjust vexation equivalent to Arresto
Mayor)
§ Note however, that filing with the Prosecutor is still possible in
order for the latter to determine probable cause
NO DIRECT FILING IN THE REGIONAL TRIAL COURT
o Because its jurisdiction (penalty of imprisonment for more than 6 years)
covers offenses which require preliminary investigation
o XPN: Last sentence, Par. 1, Section 6, Rule 112
§ “In case of doubt on the existence of probable cause, the judge
may order the prosecutor to present additional evidence within
five (5) days from notice and the issue must be resolved by the
court (RTC) within thirty (30) days from the filing of the complaint
of information”
o Direct filing in court occurs where preliminary investigation is NOT to be
conducted (less than 4 years, 2 months, and 1 day), which is covered by the
jurisdiction of the MTC (imprisonment not exceeding 6 years).
NO DIRECT FILING IN THE MTC OF MANILA AND OTHER CHARTERED CITIES
o Because of Rule 110 Section 1(b) which states that in such places, the
complaint as a rule shall be filed with the office of the prosecutor.
o In case the charter of a city provides otherwise, the charter shall prevail over
the Rules of Court, the former being substantive law
o Boomsri Note: There is no direct filing in the MTC of chartered cities.
INSTITUTION OF THE CRIMINAL ACTION ON THE PRESCRIPTIVE PERIOD *NOTE: Prescription
of the crime as opposed to prescription of the penalty
o Institution of the criminal action shall interrupt the period of prescription of
the offense charged unless otherwise provided in special laws.
o The filing of the complaint with the proper officer (i.e. where preliminary
investigation is required) would interrupt the period of prescription
o XPN: When a different rule is provided for in special laws
o When preliminary investigation is not required, the filing of the information or
complaint directly with the MTC or MCTC, or with the office of the prosecutor,
shall likewise interrupt the period of prescription
ACT 2236: The law which governs the period for prescription for violations penalized by
special acts and municipal ordinances
o Zaldivia v. Reyes: Proceedings referred to are “judicial proceedings” and not
administrative proceedings.
o People v. Pangilinan: More recent case, counters Zaldivia doctrine and states
it is not controlling in special laws.
o CONTROLLING DOCTRINE: SEC v. Interport: Irrespective of whether the
offense charged is punishable by RPC or by a special law, the filing of a
complaint in the office of the public prosecutor for purposes of preliminary
investigation interrupts the period of prescription of criminal responsibility
§ Does not have to be judicial proceedings—so long as filed with
the proper tribunal
8

§ The running of the period of prescription is interrupted with the filing of the o It is a valid information signed by a competent officer that confers jurisdiction
action even if the court in which the action was filed is without jurisdiction. over the person and the subject matter.
§ Only when TC dismissed the case due to lack of JDN that the o Any infirmity in the information cannot be cured by silence, acquiescence or
prescriptive period commenced to run again even by express consent. This is a ground for quashal of the same.

SECTION 2: THE COMPLAINT OR INFORMATION COMPLAINT INFORMATION

The complaint or information shall be (1) in writing, (2) in the name of the People of the Must be sworn; under oath Requires no oath. Merely requires that it
Philippines and (3) against all persons who appear to be responsible for the offense be in writing. (This is because the
involved prosecutor filing the information is acting
under the oath of his office)
o Not filed in the name of a private person. Subscribed by: Subscribed by the prosecutor
o It is filed in the name of the People of the Philippines and against all persons who a. Offended party
appear to be responsible for the offense involved b. Any peace officer
c. Other public officer charged with the
SECTION 3: COMPLAINT DEFINED enforcement of the law violated
A complaint is a (1) sworn written statement charging a person with an offense, (2)
subscribed by the (a) offended party, (b) any peace officer, or (c) other public officer charged SECTION 5: WHO MUST PROSECUTE CRIMINAL ACTIONS
with the enforcement of the law violated. All criminal actions commenced by a complaint or information shall be prosecuted under
the direction and control of the prosecutor.
COMPLAINT
o A sworn written statement charging a person with an offense In case of (1) heavy work schedule of the public prosecutor or (2) in the event of lack of
o Subscribed by: public prosecutors, the private prosecutor may be authorized in writing by the (1) Chief of
§ The offended party the Prosecution Office or (2) the Regional State Prosecution to prosecute the case subject
§ Any peace officer to the approval of the Court.
§ Or other public officer charged with the enforcement of the law
violated Once so authorized to prosecute the criminal action, the private prosecutor shall continue
to prosecute the case up to the end of the trial even in the absence of a public prosecutor,
COMPLAINT COMPLAINT-AFFIDAVIT unless the authority is revoked or otherwise withdrawn. (As amended per A.M. No. 02-2-07-SC
Filed directly with the court Filed with the prosecutor effective May 1, 2002)
Complaint referred to in Section 2 Complaint referred to in Section 3
Must be in the name of the People of the Subscribed by the offended party The crimes of adultery and concubinage shall not be prosecuted except upon a complaint
Philippines filed by the offended spouse. The offended party cannot institute criminal prosecution
without including the guilty parties, if both alive, nor, in any case, if the offended party has
SECTION 4: INFORMATION DEFINED consented to the offense or pardoned the offenders.
An information is an (1) accusation in writing charging a person with an offense, (2)
subscribed by the prosecutor and (3) filed with the court. The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted
except upon a complaint filed by the offended party or her parents, grandparents or
INFORMATION: guardian, nor, in any case, if the offender has been expressly pardoned by any of them. If
o An accusation in writing charging a person with an offense the offended party dies or becomes incapacitated before she can file the complaint, and
o Subscribed by the prosecutor, and she has no known parents, grandparents or guardian, the State shall initiate the criminal
o filed with the court action in her behalf.
o Not required to be “sworn”
The offended party, even if a minor, has the right to initiate the prosecution of the offenses
INFIRMITY OF SIGNATURE IN THE INFORMATION of seduction, abduction and acts of lasciviousness independently of her parents,
If the original information was signed and filed by one who had no authority, the dismissal grandparents, or guardian, unless she is incompetent or incapable of doing so. Where the
of the information would not be a bar to a subsequent prosecution under a subsequent offended party, who is a minor, fails to file the complaint, her parents, grandparents, or
valid information. guardian may file the same. The right to file the action granted to parents, grandparents or
o Jeopardy does not attach where an accused pleads guilty to a defective guardian shall be exclusive of all other persons and shall be exercised successively in the
indictment. order herein provided, except as stated in the preceding paragraph.

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& JP+ET C2020 | REMREV | JUDGE BOOMSRI

No criminal action for defamation which consists in the imputation of the offenses
mentioned above shall be brought except at the instance of and upon complaint filed by
the offended party.
The prosecution for violation of special laws shall be governed by the provisions thereof. (n)
GENERAL RULE: A criminal action is prosecuted under the direction and control of the public
prosecutor. This applies to a criminal action commenced either by a complaint or
information.
o Even if there is a private prosecutor, the criminal action is still prosecuted
under the direction and control of the public prosecutor
o Rationale: Since a criminal offense is an outrage against the sovereignty of
the State, it necessarily follows that a representative of the State shall direct
and control the prosecution thereof
PUBLIC PROSECUTOR:
o In the exercise of his functions, has the power and discretion to: (CTW)
a. Determine whether a prima facie case exists
b. Decide which of the conflicting testimonies should be believed free
from the interference or control of the offended party
c. Subject only to the right against self-incrimination, determine which
witnesses to present in court
o May turn over the actual prosecution of the criminal case to the private
prosecutor but may, at any time, take over the actual conduct of the trial
o Boomsri: Functions of the Public Prosecutor
§ 1. Prosecute criminal case
§ 2. Conduct Preliminary Investigation
Not even the Supreme Court can order the prosecution of a person against whom the
prosecutor does not find sufficient evidence to support at least a prima facie case.
o ONLY POSSIBLE XPN: Where there is an unmistakable showing of grave
abuse of discretion on the part of the prosecutor
PROSECUTION IN MTC OR MCTC
o Also under the direction and control of prosecutor
o However, when the prosecutor assigned is not available, the action may be
prosecuted by:
a. The offended party
b. Any peace officer
c. Public officer charged with the enforcement of the law violated (OCA
Circular No. 39-2002)
REPRESENTATION OF THE PEOPLE OF THE PHILIPPINES BY THE OFFICE OF THE SOLICITOR
GENERAL (OSG) IN APPEALS BEFORE THE CA OR SC
o If there is a dismissal of a criminal case by the trial court or if there is an
acquittal of the accused, it is only the OSG that may bring an appeal on the
criminal aspect representing the People
§ Rationale: The party affected by the dismissal of the criminal
action is the People and not the petitioners who are mere
complaining witnesses.
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 | REMREV | JUDGE BOOMSRI
o The Solicitor General is regarded as the appellate counsel of the People of
the Philippines
o An appeal of the criminal case not filed by the People as represented by the
OSG is perforce dismissible.
o The private complainant or offended party may, however:
§ file an appeal without the intervention of the OSG but only
insofar as the civil liability of the accused is concerned
§ File a special civil action for certiorari even without the
intervention of the OSG but only for the civil aspect
o LITMUS TEST: Whether or not the petition refers to the civil aspect of the case
§ The real party in interest in the civil aspect is the offended party
and the accused
o XPN: In all cases elevated to the Sandiganbayan and from the
Sandiganbayan to the Supreme Court, the Office of the Ombudsman,
through its special prosecutor shall represent the People of the Philippines
(except cases filed pursuant to EOs 1, 2, 14 and 14A)
o Cases:
§ Where appellate court failed to notify SolGen of its resolution of
a petition, this deprived prosecution of opportunity to prosecute
§ Conformity of the Assistant City Prosecutor to a petition for
review before the CA is insufficient
PRIVATE PROSECUTOR
o May prosecute the criminal action up to the end of the trial, even in the
absence of the public prosecutor, if he is authorized to do so in writing
§ Boomsri: Authorization must be from the Chief Prosecutor, not
just the public prosecutor (See Revised Guidelines below)
o Written authorization: Shall be given by either the Chief of the Prosecution
Office or the Regional State Prosecutor. Must be approved by the court to be
given effect
o While a private prosecutor may be allowed to intervene in criminal
proceedings on appeal in the CA or SC, his participation is subordinate to the
people. Hence, he cannot be permitted to adopt a position contrary to that of
the Solicitor General
o Once authorized, he shall continue to prosecute the case up to the end of the
trial unless the authority is revoked or otherwise withdrawn
o Even if private prosecutor has already begun prosecuting, public prosecutor
may intervene at any time
NOTE: According to the Revised Guidelines on Continuous Trial of Criminal Case III (4), “In
cases where only the civil liability is being prosecuted by a private prosecutor, the head of
the prosecution office must issue in favor of the private prosecutor a written authority to try
the case even in the absence of the public prosecutor.
• The written authority must be submitted to the court prior to the presentation of
evidence by the private prosecutor in accordance with Sec. 5, Rule 110.
o With this authority on record, the court may set the trial in the case and in
other cases tried by private prosecutors with delegated authority on separate
days when the presence of the public prosecutor may be dispensed with.”
10

PROSECUTION FOR VIOLATIONS OF SPECIAL LAWS
o Prosecuted pursuant to the provisions of said law
o Exigencies of public service sometimes require the designation of special
prosecutors from different government agencies to assist the public
prosecutor
§ Ex. Violations of Securities Regulations Code must be referred
to SEC
o Designation does not, however, detract from the public prosecutor having
control and supervision over the case
PROSECUTION OF “PRIVATE CRIMES”
ADULTERY AND CONCUBINAGE
o Shall not be prosecuted except upon a complaint filed by the offended
spouse
§ Out of consideration for the aggrieved party who might prefer to
suffer the outrage in silence rather than go through the scandal
of public trial
§ This rule is not been construed literally and with pedantic rigor
• If facts show the desire of offended spouse to
bring his wife to justice by filing a complaint
affidavit, but he died, and the fiscal filed the
information for him, court shall be guided by the
spirit and not letter of the law.
o The action cannot be instituted against one party alone, but against both
guilty parties, unless one of them is no longer alive
o May not be instituted if it is shown that the offended party has:
§ Consented to the offense or
§ Has pardoned the offenders
• Either express or implied
SEDUCTION, ABDUCTION AND ACTS OF LASCIVIOUSNESS
o Shall not be prosecuted except upon a complaint filed by:
§ the offended party, or
§ her parents, grandparents or guardian
o Offended party, even if a minor, has the right to initiate the prosecution of the
offense, independently of her parents, grandparents or guardian except if
she is incompetent or incapable of doing so
§ Where the minor fails to initiate the prosecution of the offense,
the complaint may be filed by the minor’s parents, grandparents
or guardian
§ if the offended party dies or becomes incapacitated before she
can file the complaint, and she has no known parents,
grandparents or guardian, the STATE shall initiate the criminal
action on her behalf.
§ Offended Party/Minor > (if OP fails, dies, becomes incompetent)
P, GP, G > State
o “Nor in any case, if the offender has been expressly pardoned by any of
them”
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§ The pardon must be expressly made; an implied pardon is not
contemplated under this provision
DEFAMATION
o The defamation under this rule consists in the imputation of the offenses of
adultery, concubinage, seduction, abduction and acts of lasciviousness
o The criminal action for defamation under this rule shall be brought at the
instance of and upon the complaint filed by the offended party
o ONLY THE OFFENDED PARTY CAN INITIATE THE CRIMINAL ACTION
RAPE
o No longer a crime against chastity
o RA 8353: Reclassified rape as a crime against persons
o Prosecution for such crime may now be commenced in court even by the filing
of an information by the public prosecutor
SECTION 6: SUFFICIENCY OF COMPLAINT OR INFORMATION*
A complaint or information is sufficient if it states the (1) name of the accused; the (2)
designation of the offense given by the statute; the (3) acts or omissions complained of as
constituting the offense; (4) the name of the offended party; the (5) approximate date of
the commission of the offense; and (6) the place where the offense was committed.
*Memorize or familiarize; Secs. 7-12 is a detailed explanation of each
A COMPLAINT OR INFORMATION IS DEEMED SUFFICIENT IF IT CONTAINS THE FOLLOWING:
(NDANAP)
1. The name of the accused; if the offense is committed by more than one
person, all of them shall be included in the complaint or information
2. The designation of the offense given by statute
3. The acts or omissions complained of as constituting the offense
4. The name of the offended party
5. The approximate date of the commission of the offense
6. The place where the offense was committed
TEST FOR SUFFICIENCY OF THE COMPLAINT OR INFORMATION
o Whether the crime is described in intelligible terms with such particularity as
to apprise the accused, with reasonable certainty, of the offense charged to
enable the accused to suitably prepare for his defense
§ Since he is presumed to have no independent knowledge of the
facts that constitute the offense
o For an information to be sufficient, it must validly charge an offense.
o Whether an information validly charges an offense depends on whether the
material facts alleged in the complaint or information shall establish the
essential elements of the offense charged
An information is fatally defective when it is clear that it does not really charge an offense
or when an essential element of the crime has not been sufficiently alleged.
QUESTIONING THE INSUFFICIENCY OF THE COMPLAINT OR INFORMATION
The accused-appellant should move BEFORE arraignment (entering plea) either for:
11

1. Bill of particulars – If he wants to know the exact details of the commission
of the alleged offense (vague information)
2. Quashal of the information – If it does not conform to the prescribed form
(defective information)
Objections relating to the form of the complaint or information cannot be made for the first
time on appeal.
o If he fails to pursue either remedy, he is deemed to have waived his objection to
any formal defect in the information.
o NOTE: If he fails to object either upon his arraignment or during trial, evidence
presented during the trial can cure the defect in the information (since he waived).
However, if objection is based on lack of jurisdiction over the subject matter, the same may
be raised or considered motu proprio by the court at any stage of the proceedings or on
appeal
DETERMINATION OF THE NATURE OF THE OFFENSE
o The real nature of the criminal charge is determined not from the caption or
the preamble of the information, or from the specification of the provision of
law alleged to have been violated, but by the actual recital of facts in the
complaint or information
o Every element of the offense must be stated in the information. This is to
inform the accused of the nature of the accusation against him so as to
enable him to suitably prepare his defense
SECTION 7: NAME OF THE ACCUSED
The complaint or information must state the name and surname of the accused or any
appellation or nickname by which he has been or is known. If his name cannot be
ascertained, he must be described under a fictitious name with a statement that his true
name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in some other
manner to the court, such true name shall be inserted in the complaint or information and
record.
HOW TO STATE THE NAME OF THE ACCUSED (RULES):
1. The complaint or information must state the name and surname of the accused,
or any appellation or nickname by which he has been known or is known
o Name or appellation: “Alias”
2. If his name cannot be ascertained, he must be described under a fictitious name.
A description of the accused under a fictitious name must be accompanied by a
statement that his true name is unknown
o e.g. “John Doe”
3. If later, his true name is disclosed by him or becomes known in some other
manner, his true name shall be inserted in the complaint or information and in
the records of the accused
THE PROSECUTION’S PRIMARY RESPONSIBILITY: Proving the identity of the accused as the
malefactor
o “It might be him;” SC: identification is uncertain (People v. Tumambing)
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& JP+ET C2020 | REMREV | JUDGE BOOMSRI
TASK OF THE PROSECUTION (ALWAYS TWOFOLD):
1. To prove beyond reasonable doubt the commission of the crime charged
2. To establish with the same quantum of proof the identity of the person or persons
responsible therefor (because even if the commission of the crime is given, there
can be no conviction without the identity of the malefactor being clearly
ascertained)
Positive identification pertains essentially to the proof of identity (not name). A mistake in
the name of the accused is not equivalent and does not necessarily amount to a mistake
in the identity of the accused.
TWO TYPES OF POSITIVE IDENTIFICATION:
1. Direct evidence: A witness may identify a suspect or accused in a criminal case as
the perpetrator of the crime as an eyewitness to the very act of the commission
of the crime
2. Circumstantial evidence: When taken together with other pieces of evidence
constituting an unbroken chain, leads to only fair and reasonable conclusion,
which is that the accused is the author of the crime to the exclusion of all others
o Like when although a witness may not have actually seen the very
act, he may still positively identify a suspect when the latter is the
person last seen with the victim immediately before or after the
commission of the crime
SECTION 8: DESIGNATION OF THE OFFENSE
The complaint or information shall state the (1) designation of the offense given by the
statute, (2) aver the acts or omissions constituting the offense, and (3) specify its qualifying
and aggravating circumstances. If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it.
RULES IN THE DESIGNATION OF THE OFFENSE: (NAC)
1. The designation of the offense requires, as a rule, that the name given to the
offense by statute shall be stated in the complaint or information. If the statute
gives no designation to the offense, then reference shall be made to the section
or subsection punishing it
§ Designation: Article 315, Estafa
§ No designation: Anti-Graft and Corrupt Practices Act, Section 3
2. To be included in the complete designation of the offense is an averment of the
acts or omissions constituting the offense
3. The complaint or information shall specify the qualifying and aggravating
circumstances of the offense
The prosecutor is not even required to be absolutely accurate in designating the offense by
its formal name in the law.
o The particularity required must be such that a person of ordinary intelligence
immediately knows what the charge is.
What if there is a discrepancy between title and facts? What is the effect of failure to
designate the offense given by the statue or failure to mention the provision violated?
12

o What controls is not the title of the information or the designation of the offense,
but the actual facts recited in the information. It is the recital of facts of the
commission of the offense, not the nomenclature of the offense, that determines
the crime being charged in the information.
o Ex. Although information does not specifically mention Art. 249 but narrates that
accused stabbed the victim with a bladed weapon which caused his death, the
allegations unmistakably refer to homicide.
STATEMENT OF THE QUALIFYING AND AGGRAVATING CIRCUMSTANCES
o Not sufficient to merely state the qualifying circumstance (i.e. committed with
treachery) without alleging the facts that give rise to said circumstance
o For the circumstances to be considered in imposing the penalty, the same
should be specified in the complaint or information for such to be considered
(ex. Dwelling, minority, and intoxication)
o One cannot be held liable for an offense graver than that for which he was
indicted (i.e. homicide qualified to murder, but circumstance was not alleged
in the information)
o The qualifying circumstances need not be preceded by descriptive words
such as “qualifying” or “qualified by”.
§ It is not the use of those words that raises a crime to a higher
category, but the specific allegation of an attendant
circumstance which adds the essential element raising the
crime to a higher category.
o Cases:
o Information did not allege that accused used a deadly weapon in raping; SC:
Having been charged of simple rape only, accused cannot be held liable for
an offense graver; otherwise, denial of due process since he is arraigned only
for the lower offense
o For arson, no allegation that the house was intentionally burned, and such
was inhabited; SC: simple arson only not arson of an inhabited dwelling
o Simple rape only because special qualifying circumstances of minority and
relationship were not sufficiently alleged
o Note: If the offender is merely a relation--which is not a parent, ascendant,
step-parent, guardian, or common law spouse—the specific relationship must
be alleged in the information, i.e., that he is “a relative by consanguinity or
affinity within the third civil degree.”
• Since the information only cited accused as the “victim’s uncle”, CA
correctly disregarded the qualifying circumstance of relationship
(People v. Ubiña).
SECTION 9: CAUSE OF THE ACCUSATION
The (1) acts or omissions complained of as constituting the offense and (2) the qualifying
and aggravating circumstances must be stated in ordinary and concise language and not
necessarily in the language used in the statute, but in terms sufficient to enable a person
of common understanding to know what offense is being charged as well as its qualifying
and aggravating circumstances and for the court to pronounce judgment.
In informing the accused of the cause of accusation against him, it is not necessary to
employ the words used in the statute alleged to have been violated. It is sufficient for the
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complaint or information to use ordinary and concise language sufficient to enable the
person of common understanding to know the following: (OAC)
1. The offense being charged
2. The acts or omissions complained of as constituting the offense
3. The qualifying and aggravating circumstances
Cases:
o Information did not state that the victim was raped while under custody of police;
SC: not qualified; even if during trial accused was proved to be a police officer
o Since information did not state accused is mother of victim, such special
circumstance cannot be appreciated; only simple rape
o Carnapping was not alleged to be committed by means of violence; lower court
erred in appreciating such, despite being proven in trial.
What are the remedies of the accused with regard to the Information? (See discussion in
Section 4; this was asked in class)
1. Bill of particulars
2. Quashal of the information
Note from discussion: TREACHERY is a conclusion of law
SECTION 10: PLACE OF COMMISSION OF THE OFFENSE
The complaint or information is sufficient if it can be understood from its allegations that
the offense was committed or some of its essential ingredients occurred at some place
within the jurisdiction of the court, unless the particular place where it was committed
constitutes an essential element of the offense charged or is necessary for its identification
STATING THE PLACE OF THE COMMISSION OF THE OFFENSE
GENERAL RULE: The statement is sufficient if it can be understood from the allegations in
the complaint or information that the offense was committed or some of its essential
elements occurred at some place within the jurisdiction of the court
EXCEPTION: Where the particular place where the offense was committed is an essential
element of the offense or is necessary for its identification, it is implied that the description
of the place of the commission of the offense must be specific
o e.g. Violation of domicile
Q: How to reconcile with the rule that venue in criminal cases is jurisdictional?
A: It does not contradict the rules because at the very least, the rules require that the
allegation as to the place of the commission is that it can be identified as to which court
has jurisdiction. (This was asked in class)
SECTION 11: DATE OF THE COMMISSION OF THE OFFENSE
It is not necessary to state in the complaint or information the precise date the offense was
committed except when it is a material ingredient of the offense. The offense may be
alleged to have been committed on a date as near as possible to the actual date of its
commission.
STATING THE DATE OF THE COMMISSION OF THE OFFENSE
13

GENERAL RULE: It is not necessary to state in the complaint or information the precise date
the offense was committed.
o When the date given is not the essence of the offense, it need not be proven
as alleged.
o sustained if the proof shows that the offense was committed at any date
within the period of the statute of limitations before the commencement of
the action
o Cases:
§ The date of commission of the rape is not an essential element of
the offense. The gravamen of rape is carnal knowledge. SC has
upheld mere allegations of the month and year of its commission.
§ A period ranging from Sep. 20, 1995 to March 5, 1998 is sufficient,
as stating the exact dates of allowing the paymaster to obtain cash
advances, a series of acts, is not only unnecessary, but impossible
§ “On or about 2nd of January 1996”; valid
§ “On or about the year 1992”; not valid; was held to encompass not
only 12 months of 1992 but includes the years prior and
subsequent for which the accused has to virtually account for his
whereabouts
EXCEPTION: Except when the date of commission is a material element of the offense.
o e.g. Infanticide, Delay in the delivery of justice
SECTION 12: NAME OF THE OFFENDED PARTY
The complaint or information must state the name and surname of the person against
whom or against whose property the offense was committed, or any appellation or
nickname by which such person has been or is known. If there is no better way of identifying
him, he must be described under a fictitious name.
a. In offenses against property, if the name of the offended party is unknown, the
property must be described with such particularity as to properly identify the
offense charged.
b. If the true name of the of the person against whom or against whose property the
offense was committed is thereafter disclosed or ascertained, the court must
cause the true name to be inserted in the complaint or information and the record.
c. If the offended party is a juridical person, it is sufficient to state its name, or any
name or designation by which it is known or by which it may be identified, without
need of averring that it is a juridical person or that it is organized in accordance
with law.
HOW TO STATE THE NAME OF THE OFFENDED PARTY WHO IS A NATURAL PERSON
o Offended party: the person against whom or against whose property the
offense was committed.
o The complaint or information must state the:
§ name and surname of the offended party, or
§ any appellation, or nickname by which such person has been or
is known
o If there is no better way of identifying him, he must be described under a
fictitious name
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 | REMREV | JUDGE BOOMSRI
HOW TO STATE THE NAME OF THE OFFENDED PARTY WHO IS A JURIDICAL PERSON
o It is sufficient to state its:
§ name, or
§ any name or designation by which it is known or
§ by which it may be identified,
o without need of averring that
§ it is a juridical person or
§ that it is organized in accordance with law
RULE IF THE NAME OF THE OFFENDED PARTY IS UNKNOWN IN OFFENSES AGAINST
PROPERTY
o The property must be described with such particularity as to properly identify
the offense charged
o Designation of name of offended party is not absolutely indispensable for as
long as the criminal act as charged in the complaint can be properly
identified.
§ If the subject matter of the offense is generic or unidentifiable
(like money), an error in the designation of the offended party is
fatal and would result in the acquittal of the accused
§ However, if it is specific and identifiable, an error in the
designation of the offended party is immaterial
SECTION 13: DUPLICITY OF THE OFFENSE
A complaint or information must charge but one offense, except when the law prescribes a
single punishment for various offenses.
DUPLICITY OF THE OFFENSE: Duplicity presupposes that there is a joinder of distinct
offenses in one complaint or information.
o This rule prohibits duplicity (multifariousness) of offenses in a single
complaint or information.
o Where a single act violates two or more entirely distinct and unrelated
provisions of law, the prosecution of the accused for more than one offense
in separate informations is justified.
o The information in the following are duplicitous:
§ Where the accused is charged in an information with rape
alleged to have been committed on a particular date “and prior
thereto,” the phrase indicates another offense of rape
§ Also, alleging in an information that the accused had carnal
knowledge of the victim for “several times,” several offenses are
contained therein and is, therefore, duplicitous
GENERAL RULE: A complaint or information must charge only one offense.
RATIONALE: To give the accused the necessary knowledge of the charge against him and
enable him to sufficiently prepare for his defense.
EXCEPTION TO THE RULE AGAINST DUPLICITY: A complaint or information may contain two
or more offenses when the law prescribes a single punishment for various offenses
a. Complex crimes
i. When an offense is a necessary means to commit the other
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b. Compound crimes
i. When a single act constitutes two or more grave or less grave
felonies
c. Special complex crimes
i. Where the law prescribes a single penalty for the offenses
ii. Ex. The homicide, by fiction of law, loses its character as an
independent offense and is merged with rape to constitute a
constituent element of a special complex crime of rape with
homicide
d. Delito continuado/Continuous crimes
i. A series of acts committed on the same period and impelled
by single intent or resolution
e. When the charge merely describes in a single information the different
modes by which the offense was committed, like alleging “manifest
partiality” “evident bad faith” and “gross inexcusable negligence,” no
distinct offenses are charged
OTHER INSTANCES IMPORTANT TO NOTE:
o Each incident of sexual intercourse and lascivious act with a child under RA
7610, is a separate and distinct offense, each of which is a subject of a
separate information
§ In People v. Lucena, the Court held that the appellant should be
convicted of 3 counts of rape. The 3 penetrations occurred one
after the other at an interval of 5 minutes wherein the appellant
would rest after satiating his lust upon his victim and, after he
has regained his strength, he would again rape. Hence, it can
be clearly inferred from the foregoing that when the appellant
decided to commit those separate and distinct acts of sexual
assault, he was not motivated by a single impulse, but rather by
several criminal intents.
§ In People v. Aaron, the Court convicted the accused therein for
only one count of rape despite the 3 successful penetrations
because there is no indication that the accused decided to
commit those separate and distinct acts of sexual assault other
than his lustful desire to change positions inside the room
where the crime was committed. Thus, the 3 penetrations
occurred during one continuing act of rape in which the accused
was obviously motivated by a single criminal intent
o When several people are killed by separate bullets from a single automatic
weapon, Art. 48 of the RPC is not applicable because the death of each of
the persons who were killed were not caused by the performance by the
accused of one simple act as provided for by said article
§ However, it becomes an exception to the rule against duplicity,
when a single bullet killed two persons, there is a complex crime
because there was only a single act which produced two crimes
RA 10591 (COMPREHENSIVE LAW ON FIREARMS AND AMMUNITION)
o The use of a loose firearm, when inherent in the commission of a crime
punishable under the RPC or other special laws, shall be considered as an
aggravating circumstance
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 | REMREV | JUDGE BOOMSRI
o If the violation of this Act is in furtherance of, or incident to, or in connection
with the crime of rebellion or insurrection, or attempted coup d’ etat, such
violation shall be absorbed
o If the crime is committed by the person without using the loose firearm, the
violation of this Act shall be considered as a distinct and separate offense
o NOTE: An information for illegal possession of firearm should now particularly
refer to the provision under which the seized firearm is classified, and should
there be numerous guns confiscated, each must be sorted and then grouped
according to the categories as stated in PD 1866
§ Ex. Where a person was arrested for illegal possession of a .45
caliber pistol and a .32 caliber pistol, each firearm illegally
possessed should be the subject of a separation information
because the law provides for a separate penalty for each type
of firearm
WAIVER OF DUPLICITY OF THE OFFENSE
o Duplicity of the offense is a ground for a motion to quash (Sec. 3(f), Rule 117)
o Should the information be defective because of duplicity (multifariousness),
an objection must be timely interposed by the accused before trial;
§ Otherwise he is deemed to have waived said defect
o Consequently, the court may convict him for as many offenses as are charged
and proved, and impose on him the penalty for each offense (Sec. 3, Rule
120)
SECTION 14: AMENDMENT OR SUBSTITUTION
A complaint or information may be amended, in form or in substance, without leave of court,
at any time before the accused enters his plea.
o After the plea and during the trial, a formal amendment may only be made with
leave of court and when it can be done without causing prejudice to the rights of
the accused.
However, any amendment before plea, which (1) downgrades the nature of the offense
charged in or (2) excludes any accused from the complaint or information, can be made
only upon motion by the prosecutor, with notice to the offended party and with leave of
court. The court shall state its reasons in resolving the motion and copies of its order shall
be furnished all parties, especially the offended party.
[Rule on Substitution:] If it appears at any time before judgment that a mistake has been
made in charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in accordance with
section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The
court may require the witnesses to give bail for their appearance at the trial.
AMENDMENT: It is the correction of an error or an omission in a complaint or an information.
It is effected by:
o adding or striking out an allegation or the name of any party, or
o by correcting a mistaken or inadequate allegation or description in any other
respect,
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o so that the actual merits of the controversy may speedily be determined,
without regard to technicalities, and in the most expeditious and
inexpensive manner
NOTE: Section 4, Rule 117. Amendment of complaint or information. – If the motion to
quash is based on an alleged defect of the complaint or information which can be cured by
amendment, the court shall order that an amendment be made
o If it is based on the ground that the facts charged do not constitute an offense,
the prosecution shall be given by the court an opportunity to correct the defect by
amendment.
o The motion [to quash] shall be granted if the prosecution fails to make the
amendment, or the complaint or information still suffers from the same defect
despite the amendment
Boomsri Notes:
o Take note of the variance doctrine in Secs. 4 and 5 of Rule 120 of the Rules of
Court. This pronounces that failure to allege the elements of a particular crime will
not automatically dismiss the case or result to an acquittal, unless double
jeopardy attaches when there is arraignment.
o Ex. Allegations in the information charge the accused for acts of
lasciviousness but fails to allege lewd designs. The accuse cannot be
held liable for acts of lasciviousness, but may be liable for unjust
vexation, which is necessarily included in the crime of the former, absent
lewd designs.
AMENDMENT IS MADE BEFORE PLEA: The complaint or information may be amended in
form or substance without the need for leave of court
o XPN: (LEAVE OF COURT IS REQUIRED EVEN IF THE AMENDMENT IS MADE
BEFORE PLEA)
§ The amendment downgrades the nature of the offense charged
§ The amendment excludes any accused from the complaint or
information
o The above amendments require a motion by the prosecutor, with
notice to the offended party
o The court is mandated to state its reasons in resolving the motion
of the prosecutor, and to furnish all parties, especially the offended
party, of copies of its order
o Once the court acquires jurisdiction, the court already
takes control over the case (prosecutor cannot just on his
own downgrade or exclude a person; his control is now
subordinate)
AMENDMENT IS MADE AFTER PLEA AND DURING TRIAL:
o Any formal amendment may only be made under two conditions
1. Leave of court must be secured
2. The amendment does not cause prejudice to the rights of the
accused
o Amendment in substance no longer allowed
§ XPN: IF IT IS BENEFICIAL TO THE ACCUSED (Ricarze v. CA)
DMG C2020 | CRIMPRO | DEAN VALLENTE
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FORMAL AMENDMENT SUBSTANTIAL AMENDMENT
One which does not change the nature of When a defense of the accused, under
the crime alleged therein, does not affect the original complaint or information
the essence of the offense, cause would no longer be available after the
surprise, or deprive the accused of an amendment is made, and when any
opportunity to meet the new averment evidence the accused might have would
be inapplicable
TEST OF WHETHER FORMAL OR SUBSTANTIAL: Change in the defense of the accused
The Court ratiocinated that while the To amend the information, so as to
amended information was for murder, a change the crime charged from homicide
reading of the information shows that the to the more serious offense of murder
only change made was in the caption of after the petitioner had pleaded not guilty
the case; hence the amendment was only to the former, is indubitably proscribed.
formal; and in the opening paragraph or For certainly, a change from homicide to
preamble of the information, with the murder is not a matter of form; it is one of
crossing out of the word “Homicide” and substance with very serious
its replacement by the word “Murder.” consequences
There was no change in the recital of facts
constituting the offense charged or in the
recital of facts constituting the offense
charged or in the determination of the
jurisdiction of the court.
EXAMPLES OF FORMAL AMENDMENTS:
1. New allegations which relate only to the range of the penalty that the court might
impose in the event of conviction
a. Ex. The prosecution sought to add habitual delinquency and recidivism
in the original information
2. An amendment which does not charge another offense different or distinct from
that charged in the original one
3. Additional allegations which do not alter the prosecution’s theory of the case so
as to cause surprise to the accused and affect the form of defense he has or will
assume
a. Ex. The prosecutor sought during trial to amend the information from
frustrated to consummated murder since the victim died after the
information for frustrated murder was filed
4. An amendment which does not adversely affect any substantial right of the
accused
5. An amendment that merely adds specifications to eliminate vagueness in the
information and not to introduce new and material facts; merely states with
additional precision something which is already contained in the original
information and which adds nothing essential for conviction of the crime charged
SUBSTITUTION OF THE COMPLAINT OR INFORMATION
o A complaint or information may be substituted if it appears at any time before
judgment that a mistake has been made in charging the proper offense
§ In such a case, the court shall dismiss the original complaint or
information once the new one charging the proper offense is
filed provided the accused will not be placed in double jeopardy
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o The dismissal of the original complaint or information is subject to the the court of any municipality or territory where such train, aircraft or other vehicle
provisions of Sec. 19 Rule 119 (i.e., only after proper information is filed). passed during such its trip, including the place of its departure and arrival.
§ Under this provision, if it becomes manifest at any time before c. Where an offense is committed on board a vessel in the course of its voyage, the
judgment that the accused cannot be convicted of the offense criminal action shall be instituted and tried in the court of the first port of entry or
charged or of any other offense necessarily included therein, as of any municipality or territory where the vessel passed during such voyage,
when a mistake has been made in charging the proper offense, subject to the generally accepted principles of international law.
the court, nevertheless, shall commit the accused to answer for d. Crimes committed outside the Philippines but punishable under Article 2 of the
the proper offense by requiring the filing of the proper Revised Penal Code shall be cognizable by the court where the criminal action is
information. The accused shall not be discharged if there first filed.
appears good cause to detain him. After the proper information
is filed, it shall dismiss the original case VENUE OF CRIMINAL ACTIONS: As a rule, the criminal action shall be instituted and tried in
the court of the municipality or territory
AMENDMENT SUBSTITUTION a. Where the offense was committed; or
May involve either formal or substantial Necessarily involves substantial changes b. Where any of its essential ingredients occurred
changes
Before plea: Can be effected without Must be with leave of court as the original VENUE; AN ELEMENT OF CRIMINAL JURISDICTION
leave of court information has to be dismissed
Only as to form: No need for another Another preliminary investigation is GENERAL RULE: A court cannot exercise jurisdiction over a person charged with an offense
preliminary investigation and the retaking entailed and the accused has to plead committed outside its limited territory. This is because venue in a criminal case is a
of the plea of the accused anew to the new information jurisdictional matter. It is an element of jurisdiction.
Refers to the same offense charged in the Requires or presupposes that the new o Thus, the rules require that the complaint or information, to be deemed
original information or to an offense information involves a different offense sufficient, should state the place where the offense was committed
which necessarily includes or is which does not include or is not § It is not enough to allege the place of the commission of the
necessarily included in the original necessarily included in the original crime, such place must also be proven during the trial
charge; accused can invoke double charge; accused cannot claim double § Failure to prove the venue, an objection may be raised based on
jeopardy jeopardy the ground that the court lacks jurisdiction over the offense
Determination: Where the second Determination: Where the new charged, or such lack may be considered motu proprio by the
information involves the same offense, or information charges an offense which is court at any stage of the proceedings or on appeal
an offense which necessarily includes or distinct and different from that initially
is necessarily included in the first charged NOTE: Venue is an essential element of jurisdiction in criminal cases. It determines not only
information the place where the criminal action is to be instituted, but also the court which has
An offense may be said to necessarily jurisdiction to try and hear the case.
include another when some of the o TWO-FOLD PURPOSE:
essential elements or ingredients of the § First, the jurisdiction of trial courts is limited to well-defined
former, as this is alleged in the territories such that a trial court can only hear and try cases
information, constitute the latter. And, involving crimes committed within its territorial jurisdiction
vice versa, an offense may be said to be § Second, laying the venue is the locus criminis is grounded on
necessarily included in another when the the necessity and justice of having an accused on trial in the
essential ingredients of the former municipality or province where witnesses and other facilities for
constitute or form a part of those his defense are available
constitute the latter IMPROPER VENUE

SECTION 15: PLACE WHERE THE ACTION IS TO BE INSTITUTED CRIMINAL CASE CIVIL CASE
a. Subject to existing laws, the criminal action shall be instituted and tried in the Motion to quash on the ground that the Motion to dismiss on the ground that
court of the municipality or territory where the offense was committed or where court trying the case has no jurisdiction venue is improperly laid
any of its essential ingredients occurred. over the offenses charged
b. Where an offense is committed in a train, aircraft, or other public or private vehicle NOTE: According to A.M. No. 19-10-20-SC,
while in the course of its trip, the criminal action shall be instituted and tried in a MTD is a prohibited pleading, thus, for
the ground for improper venue should be

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& JP+ET C2020 | REMREV | JUDGE BOOMSRI

raised as an affirmative defense in the
answer
Boomsri: Venue is jurisdictional and Venue is remedial. Parties can agree
substantive. Conferred by law. where to file.
EXCEPTIONS:
1. Where the offense was committed under the circumstances enumerated in Article
2 of the RPC
§ The offense is cognizable before PH courts even if committed outside
the territory of the Philippines
§ The offense shall be cognizable by the court where the criminal action is
first filed
2. Where the Supreme Court, pursuant to its constitutional powers, orders a change
of venue or place of trial to avoid a miscarriage of justice
3. Where an offense is committed in a train, aircraft or other public or private vehicle
in the course of its trip, the criminal action need not be instituted in the actual
place where the offense was committed.
§ It may be instituted and tried in the court of any municipality or territory
where said train, aircraft or vehicle passed during its trip
§ The crime may also be instituted and tried in the place of departure and
arrival
4. Where an offense committed on board a vessel in the course of its voyage, the
criminal action shall be instituted and tried not necessarily in the place of the
commission of the crime
§ It may be instituted and tried in the court of the first port of entry, or in
the court of the municipality or territory where the vessel passed during
the voyage (place of departure and arrival not included)
5. Where the case is cognizable by the Sandiganbayan, the criminal action need not
be filed and tried in the place where the act was committed but generally where
the court actually sits in Quezon City
§ When the greater convenience of the accused and of the witnesses, or
other compelling considerations so require, a case originating from one
geographical region may be heard in another geographical region
§ For this purpose, the presiding justice shall authorize any divisions of
the court to hold sessions at any time and place outside Metro Manila
and, where the interest of justice so requires, outside the territorial
boundaries of the Philippines
6. Where the offense is written defamation, it may be filed in the province or city
§ Where the libelous article is printed and first published
i. The Court clarified that on a matter pertaining to a defamatory
material appearing on a website on the internet, the place
where the material was first accessed cannot be equated with
“printing and first publication”
ii. In this situation, the information may allege the address of
their editorial or business offices in the case of newspapers,
magazines or serial publications
§ Offended party is a public officer: Where he held office at the time of the
commission of the offense
§ Offended party is a private individual: Where he actually resided at the
time of the commission of the offense
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& JP+ET C2020 | REMREV | JUDGE BOOMSRI
§ The civil action for damages in cases of written defamation, if filed
simultaneously with the criminal action, or even if filed separately, shall
also be filed with the RTC
i. As to the venue, it shall be determined in the same manner as
in the criminal action.
Q: Does it have to be a registered vessel?
A: The law makes no distinction
It is not enough to allege in the complaint or information the place of the commission of the
crime. Such place must also be proven during the trial.
VENUE OF SELECTED OFFENSES
PERJURY (CONTROLLING RULES FROM UNIONBANK v. PEOPLE)
1. The crime of perjury, committed through the making of a false affidavit, is
committed at the time the affiant subscribes and swears to his or her affidavit
since it is at the time that all the elements of the crime of perjury are executed
2. When the crime is committed through false testimony under oath in a proceeding
which is neither criminal nor civil, venue is at the place where the testimony under
oath is given
3. If in lieu of or as supplement to the actual testimony made in a proceeding that is
neither criminal nor civil, a written sworn statement is submitted, venue may
either be at the place where the sworn statement is submitted or where the oath
was taken
4. In all cases, determination of venue shall be based on the acts alleged in the
Information to be constitutive of the crime committed
RA 8042 (MIGRANT WORKERS AND OVERSEAS FILIPINO ACT OF 1995)
o A criminal action arising from illegal recruitment shall be filed, not only in the
RTC of the province or city where the offense was committed
o It may also be filed where the offended party actually resides at the time of
the commission of the offense
o The court where the criminal action is first filed shall acquire jurisdiction to
the exclusion of other courts
o The alternative venue under RA 8042 is an exception to the rule that “the
criminal action shall be instituted and tried in the court of the municipality or
territory where the offense was committed or where any of its essential
ingredients occurred” [Subject to existing laws]
BP 22
o Violations are categorized as transitory or continuing crimes
o A suit on the check can be filed in any of the places where any of the elements
of the offense occurred:
§ Where the check is drawn
§ Where the check is issued
§ Where the check is delivered
§ Where the check is dishonored
o The first court taking cognizance of the case excludes the others
18
ESTAFA BY POSTDATING OR ISSUING A BAD CHECK
o May also be a transitory or continuing offense
o Its basic elements of deceit and damage may arise independently in separate
place. You can file in either.
o Its essential ingredients should have taken place within the territorial
jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory
where the court has jurisdiction to take cognizance or to try the offense
allegedly committed therein. This is determined by the allegations in the
complaint or information.
THEFT
o Theft is not a continuing offense
o When one stole a carabao in Nueva Ecija, and took the same to Pampanga
where the animal was eventually found and recovered, the case cannot be
instituted and tried in Pampanga
o The crime was already consummate in Nueva Ecija where the animal was
stolen. Taking the animal in Pampanga added nothing to the consummation
of the offense under the RPC, from the offense charged, which is different from the source
SECTION 16: INTERVENTION OF THE OFFENDED PARTY IN CRIMINAL ACTION
Where the civil action for recovery of civil liability is instituted in the criminal action pursuant
to Rule 111, the offended party may intervene by counsel in the prosecution of the offense.
“Every person criminally liable for a felony is also civilly liable” (Art. 100, RPC)
When a person commits a crime, he offends two entities:
1. The society in which he lives in or the political entity called the State, whose
law he has violated
2. The individual member of that society whose person, right, honor, chastity or
property was actually or directly injured or damaged by the same punishable
act or omission.
o Offended party MAY NOT INTERVENE in the prosecution of the offense
through a private prosecutor if the offended party
a. Waives the civil action
b. Reserves the right to institute it separately
c. Institutes the civil action prior to the criminal action
o Where the private prosecution has asserted its right to intervene in the
proceedings, that right must be respected
FILING OF AN INDEPENDENT CIVIL ACTION
o Cases where the criminal action also gives rise to an independent civil action
(Arts. 32, 33, 34, 2176 of the Civil Code):
§ Physical Injuries
§ Fraud
§ Defamation
§ Quasi-delict
§ This does not deprive the offended party of the right to intervene in the civil
action through a private prosecutor because there still exists a civil liability
of the independent civil action.
o The situations above give rise to distinct civil liabilities:
1. The one arising from the offense charged under Article 100 of the
RPC
2. The civil liabilities arising from quasi-delicts or independent civil
actions
o As a direct consequence of the independent character of the actions brought
under Arts. 32, 33, 34, 2176 of the CC, even if a civil action is filed separately,
the ex delicto civil liability in the criminal prosecution remains, and the
offended party may, subject to the control of the prosecutor, still intervene in
the criminal action, in order to protect the remaining civil interest therein.

CIVIL LIABILITY
o Includes restitution, reparation of the damage caused, indemnification for
consequential damages
o Except when the civil liability is extinguished, the offender shall be obliged to
satisfy the civil liability resulting from the crime committed by him, even if he:
§ has already served his sentence or
§ has not been required to serve the same by reason of amnesty,
pardon, commutation of sentence, etc.
o It is because of the existence of a civil liability involved in a crime that the
offended party is allowed to intervene in the prosecution of the offense

Appointment of a private prosecutor is done by the offended party and is the mode by which
he intervenes in the prosecution of the offense
o This intervention is only allowed where the civil action of the recovery of the
civil liability arising from the offense charged is INSTITUTED IN the criminal
action

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& JP+ET C2020 | REMREV | JUDGE BOOMSRI
CHAPTER 3: RULE 111 (PROSECUTION OF CIVIL ACTION)
SECTION 1: INSTITUTION OF CRIMINAL AND CIVIL ACTIONS
(a) When a criminal action is instituted, the civil action for the recovery of civil liability arising
from the offense charged shall be deemed instituted with the criminal action unless the
offended party (1) waives the civil action, (2) reserves the right to institute it separately or
(3) institutes the civil action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made before the
prosecution starts presenting its evidence and under circumstances affording the offended
party a reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the accused by way of moral,
nominal, temperate, or exemplary damages without specifying the amount thereof in the
complaint or information, the filing fees thereof shall constitute a first lien on the judgment
awarding such damages.
Where the amount of damages, other than actual, is specified in the complaint or
information, the corresponding filing fees shall be paid by the offended party upon the filing
thereof in court.
§ Observe that the civil action deemed instituted with the criminal
action is that which “arises from the offense charged.” This
action is for the recovery of the civil liability under Art. 100 of
the RPC
o Every person criminally liable is also civilly liable hence, generally, a criminal
case has two aspects: the civil and the criminal
§ Reason: To avoid multiplicity of suits
§ Does not apply before the filing of the criminal action or
information
o When a person commits a crime, he offends two entities:
§ The society in which he lives in or the political entity called the
STATE
§ The INDIVIDUAL member of that society whose person, right,
honor, chastity, or property was actually or directly injured or
damaged
o When the accused is acquitted or when the case against him is dismissed for
failure of the prosecution to prove his guilt beyond reasonable doubt, the civil
action is NOT automatically extinguished
§ The liability of the accused can be determined by mere
preponderance of evidence

Except as otherwise provided in these Rules, no filing fees shall be required for actual
damages.
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.
GENERAL RULE: The civil action is deemed instituted with the criminal action.
EXCEPTIONS: (WaSP)
1. When the offended party waives the civil action
2. When the offended party reserves the right to institute it separately
3. When the offended party institutes the civil action prior to the criminal action

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include REASON: To avoid multiplicity of suits; not clog courts
the corresponding civil action. No reservation to file such civil action separately shall be
allowed. PURPOSES OF THE CRIMINAL AND CIVIL ACTIONS

Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in PRIME PURPOSE OF THE CRIMINAL ACTION
full the filing fees based on the amount of the check involved, which shall be considered as o Punish the offender in order to deter him and others from committing the
the actual damages claimed. Where the complaint or information also seeks to recover same or similar offense
liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay o To isolate him from society
additional filing fees based on the amounts alleged therein. If the amounts are not so o Reform and rehabilitate him
alleged but any of these damages are subsequently awarded by the court, the filing fees o To maintain social order
based on the amount awarded shall constitute a first lien on the judgment.
SOLE PURPOSE OF CIVIL ACTION
Where the civil action has been filed separately and trial thereof has not yet commenced, it o For the resolution, reparation or indemnification of the private offended party
may be consolidated with the criminal action upon application with the court trying the latter for the damage or injury he sustained by reason of the delictual or felonious
case. If the application is granted, the trial of both actions shall proceed in accordance with act of the accused
section 2 of this Rule governing consolidation of the civil and criminal actions. The court allows intervention of the offended party because he suffered an injury as a result
of the offense (See discussion under Rule 110 Section 16)
IMPILIED INSTITUTION OF THE CIVIL ACTION WITH THE CRIMINAL ACTION
o When a criminal action is instituted, the civil action for the recovery of the Instances when no civil damage results from an offense (No private offended parties)
civil liability arising from the offense charged shall be deemed instituted with o Espionage
the original action o Violation of neutrality
o Flight to an enemy country

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& JP+ET C2020 | REMREV | JUDGE BOOMSRI

o Crime against popular representation
NOTE: The Court held in Lee Pue Liong v. Chua Pue Chin Lee, that in the case of perjury
where the petitioner alleged the loss of the TCT, is “injurious to the respondent’s personal
credibility and reputation insofar as his faithful performance of the duties and
responsibilities as corporate treasurer.” There, therefore, a civil action deemed instituted
with the criminal action that would justify the appearance of a private prosecutor
JUDGMENT OF CONVICTION INCLUDES A JUDGMENT ON THE CIVIL LIABILITY
o The trial court should, in case of conviction, state the civil liability or damages
caused by the wrongful act or omission to be recovered from the accused by
the offended party, if there is any and if the filing of the civil action has not
been reserved, previously instituted or waived
Boomsri notes:
• If the accused pleads guilty, offended party should file a manifestation that he is
pursuing the civil liability. It is incorrect to file a separate civil case for it.
REAL PARTIES IN INTEREST IN THE CIVIL ASPECT OF THE CASE
1. Offended party
2. Accused
Either party may appeal the civil aspect of the judgment despite acquittal of the accused.
REMEMBER: Acquittal of the accused ends the work of the public prosecutor
A single act or omission that causes damage to an offended party may give rise to two
separate civil liabilities on the part of the offender:
1. Civil liability ex delicto – Civil liability arising from the criminal offense under
Art. 100 of the RPC (inherently intertwined with the criminal action, hence
impliedly instituted; basis of implied institution)
2. Independent civil liability – Civil liability that may be pursued independently
of criminal proceedings
a. An obligation not arising from the act complained of as a felony (Art.
31, Civil Code)
b. An act or omission that may constitute a felony but nevertheless is
treated independently from the criminal action (Art. 33, Civil Code)
i. Defamation
ii. Fraud
iii. Physical injuries
Only the civil liability of the accused arising from the crime charged is deemed included in
a criminal action.
WHEN A CIVIL ACTION MAY PROCEED INDEPENDENTLY
Civil actions which remain separate, distinct and independent of any criminal prosecution
which may be based on the same act:
1. Articles 32, 33, 34 of the Civil Code – Sources of obligations arising from
direct provisions of law
2. Article 2176 of the Civil Code – Source of obligation distinct from a crime
(quasi-delicts)
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 | REMREV | JUDGE BOOMSRI
These may be FILED independently and separately from the criminal action because they
do not arise from the offense charged. What the law proscribes is double recovery.
o Boomsri: You cannot double recover. It’s a race. If you wager that you will get
more in the criminal case, seek remedies there.
Examples:
1. When the criminal complaint for estafa alleges and is based on fraud, an independent
civil action also exists which could proceed independently of the criminal action.
2. Where a person is arrested illegally or detained illegally, the offended party may initiate
an independent civil action for damages based on Art. 32 of the Civil Code. This is apart
from the unlawful arrest or illegal detention.
RESERVATION OF THE CIVIL ACTION: This shall be made before the prosecution starts
presenting its evidence. It is to be made under circumstances that would afford the
offended party a reasonable opportunity to make such reservation
o When no reservation is required:
§ Independent Civil Actions do not arise from the offense or crime
charged, and hence, are not deemed instituted with the filing of
the criminal action. Their filing need not be reserved because it
is the law which has made the reservation for such civil actions
NO RIGHT TO RESERVE:
• CIVIL LIABILITY IN BP 22: The corresponding civil action is deemed included and
a reservation to file such separately is not allowed (Waiver of the civil action or
institution of the civil action prior to the criminal action is allowed)
o REMEMBER: Jurisdiction of BP 22 cases is with the MTC
• There is also NO RIGHT TO RESERVE for the civil liability in tax cases in the CTA as
the civil liability therein is deemed instituted with the criminal case. (RA 9282).
• No right to reserve as well for cases falling under the jurisdiction of the
Sandiganbayan because civil liability is deemed instituted in the criminal action.
(RA 6770).
COUNTERCLAIM, CROSS-CLAIM, THIRD PARTY CLAIM
A court cannot entertain counterclaims, cross-claims and third-party complaints in the
criminal action. A criminal case is not the proper proceedings to determine the civil liability
of the private complainant. These complaints may be made the subject of a separate civil
action.
FILING FEES: These are paid when damages are being claimed by the offended party. The
following summarizes the rule on filing fees:
a. There are no filing fees required for actual damages claimed
o XPN: Unless required by the rules
o Examples:
o BP 22 cases, where the filing fees shall be paid based on the
amount of the check and shall be paid in full (If there are 40 counts
of violation of BP 22, filing fees are due for each count). The actual
damages claimed is the amount on the check.
o Estafa, where the filing fees shall be paid based on the amount
involved
21

b. Filing fees shall be paid by the offended party upon the filing of the criminal
action in court where he seeks for the enforcement of the civil liability of the
accused by way of moral, nominal, temperate or exemplary damages but
other than actual damages, and where the amount of such damages is
specified in the complaint or information
o If the amount is not specified but any of the damages is
subsequently awarded, the filing fees assessed in accordance with
the Rules shall constitute a first lien on the judgment awarding such
damages
WHEN FILING FEES ARE FILED: Upon the filing of the complaint/information in court
SUBSIDIARY LIABILITY OF EMPLOYER
o In the dispositive portion of its decision, the trial court need not expressly
pronounce the subsidiary liability of the employer because the provisions of
the RPC on subsidiary liability are deemed written into the judgments in cases
to which they apply
o Before the employer’s liability is enforced, adequate evidence must exist
establishing that:
§ They are indeed the employers of the convicted employees
§ They are engaged in some kind of industry
§ The crime was committed by the employees in the discharge of
their duties
§ The execution against the latter has not been satisfied due to
insolvency
SECTION 2: WHEN SEPARATE CIVIL ACTION IS SUSPENDED
After the criminal action has been commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered in the criminal action.
If the criminal action is filed after the said civil action has already been instituted, the latter
shall be suspended in whatever stage it may be found before judgment on the merits. The
suspension shall last until final judgment is rendered in the criminal action. Nevertheless,
before judgment on the merits is rendered in the civil action, the same may, upon motion
of the offended party, be consolidated with the criminal action in the court trying the
criminal action. In case of consolidation, the evidence already adduced in the civil action
shall be deemed automatically reproduced in the criminal action without prejudice to the
right of the prosecution to cross-examine the witnesses presented by the offended party in
the criminal case and of the parties to present additional evidence. The consolidated
criminal and civil actions shall be tried and decided jointly.
During the pendency of the criminal action, the running of the period of prescription of the
civil action which cannot be instituted separately or whose proceeding has been suspended
shall be tolled.
The extinction of the penal action does not carry with it extinction of the civil action.
However, the civil action based on delict shall be deemed extinguished if there is a finding
in a final judgment in the criminal action that the act or omission from which the civil liability
may arise did not exist.
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 | REMREV | JUDGE BOOMSRI
Guide:
o Paragraph 1: Criminal action was instituted prior to civil action
o Paragraph 2: Civil action was instituted prior to criminal action
WHEN THE SEPARATE CIVIL ACTION IS SUSPENDED
o After the criminal action is commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered in the criminal action
(Preference given to the resolution of the criminal action)
o If the offended party institutes a civil action prior to the criminal action and later,
during the pendency of the civil action, the criminal action is commenced, the civil
action already instituted shall be suspended in whatever stage of the proceedings
it may be found, as long as no judgment on the merits has yet been entered in the
civil action.
§ The suspension shall last until final judgment is rendered in the
criminal action
§ Options: Wait for judgment in criminal cases or consolidate
These rules apply only to civil actions arising from the offense charged—not to independent
civil actions (See Rule 111, Section 3)
NOTE: An exception to this rule is the suspension of the criminal action due to a prejudicial
question (See Rule 110 Section 6)
Q: When can private complainant file the civil case considering the criminal case has
begun?
A: After judgment in the criminal case
Q: What does this rule seek to avoid?
A: Possibility of conflict of decision
Q: Why is the offended party the one deciding whether or not consolidate?
A: Because then prosecution can cross examine and they can adduce additional evidence
EFFECT OF ACQUITTAL OR THE EXTINCTION OF THE PENAL ACTION ON THE CIVIL ACTION
OR CIVIL LIABILITY
o The extinction of the penal action does not carry with it the extinction of the
civil action
o Two kinds of acquittal
1. On the ground that the accused is not the author of the act or
omission complained of
o This closes the door to civil liability because a person who is
not the author of any act or omission cannot and can never be
held liable for the same.
o There being no crime, there can be no civil liability
2. Based on reasonable doubt on the guilt of the accused
o Here he is not exempt from civil liability because such liability
may be proved by mere preponderance of evidence
o This is the one contemplated in Art. 29 of the Civil Code
o The judgment shall state whether the evidence of the prosecution absolutely
failed to prove the guilt of the accused or merely failed to prove his guilt
beyond reasonable doubt.
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EFFECT OF PAYMENT OF THE CIVIL LIABILITY: This does not extinguish criminal liability.
While there may be a compromise upon the civil liability arising from the offense, such
compromise shall not extinguish the public action for the imposition of the legal penalty
SECTION 3: WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY
In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines,
the independent civil action may be brought by the offended party. It shall proceed
independently of the criminal action and shall require only a preponderance of evidence. In
no case, however, may the offended party recover damages twice for the same act or
omission charged in the criminal action.
CONSEQUENCES OF THE INDEPENDENT CHARACTER OF ACTIONS UNDER ARTS. 32, 33, 34
AND 2176 OF THE CIVIL CODE
1. The right to bring the civil action shall proceed independently of the criminal
action and regardless of the results of the latter
2. The quantum of evidence required is preponderance of evidence
3.
a. The right to bring the foregoing actions based on the Civil Code need not
be reserved in the criminal prosecution, since they are not deemed
included therein
b. The institution or waiver of the right to file a separate civil action arising
from the crime charged does not extinguish the right to bring an
independent civil action
c. Even if a civil action is filed independently, the ex delicto civil liability in
the criminal prosecution remains, and the offended party may—subject
to control of the prosecutor—still intervene in the criminal action, in order
to protect the remaining civil interest therein
Article 32: Against basic Constitutional human rights
Article 33: Fraud, defamation, physical injuries
Article 34: When police fails to render service
Article 2176: Quasi-delicts
Only one act is involved; party cannot recover twice
o If party recovers in civil action instituted in criminal action, party can no
longer recover from the independent civil action
SECTION 4: EFFECT OF DEATH ON CIVIL ACTIONS
The death of the accused after arraignment and during the pendency of the criminal action
shall extinguish the civil liability arising from the delict. However, the independent civil
action instituted under section 3 of this Rule or which thereafter is instituted to enforce
liability arising from other sources of obligation may be continued against the estate or legal
representative of the accused after proper substitution or against said estate, as the case
may be. The heirs of the accused may be substituted for the deceased without requiring the
appointment of an executor or administrator and the court may appoint a guardian ad litem
for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and
be substituted within a period of thirty (30) days from notice.
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 | REMREV | JUDGE BOOMSRI
A final judgment entered in favor of the offended party shall be enforced in the manner
especially provided in these Rules for prosecuting claims against the estate of the
deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to
any civil action the offended party may file against the estate of the deceased.
RULE SUMMARIZED:
1. If the accused dies after arraignment and during the pendency of the criminal
action: The civil liability of the accused arising from the crime is extinguished
o Since the criminal action is extinguished and inasmuch as there is
no longer a defendant to stand as the accused, the civil action
instituted therein for recovery of civil liability ex delicto is ipso facto
extinguished, grounded as it is on the criminal case
o This rule does not apply to independent civil actions under Rule 111
Section 3 and civil liabilities arising from sources of obligation not
arising from the offense charged
• They may be continued against the estate or legal
representative of the accused after proper substitution
2. If the accused dies before arraignment: The case shall be dismissed but this
is without prejudice to any civil action (independent civil action) which the
offended party may file against the state of the deceased
NOVATION: It is not one of the grounds prescribed by the RPC for the extinguishment of
criminal liability.
o Ex. In estafa, reimbursement of or compromise as to the amount
misappropriated after the commission of the crime affects ONLY the CIVIL
liability of the offender, and not his criminal liability
SECTION 5: JUDGMENT IN CIVIL ACTION NOT A BAR
A final judgment rendered in a civil action absolving the defendant from civil liability is not
a bar to a criminal action against the defendant for the same act or omission subject of the
civil action.
EFFECT OF JUDGMENT IN THE CIVIL CASE ABSOLVING THE DEFENDANT: A final judgment
rendered in a civil case absolving a defendant from civil liability is not a bar to a criminal
action against the defendant for the same act or omission subject of the civil action
EFFECT OF ACQUITTAL OF THE ACCUSED IN HIS ADMINISTRATIVE CASE: The acquittal of the
accused who is also a respondent in an administrative case does not conclude the
administrative proceedings, nor carry with it relief from administrative liability because only
substantial evidence is necessary
SECTION 6: SUSPENSION BY REASON OF PREJUDICIAL QUESTION
A petition for suspension of the criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the (1) office of the prosecutor or the (2) court
conducting the preliminary investigation. When the criminal action has been (3) filed in
court for trial, the petition to suspend shall be filed in the same criminal action at any time
before the prosecution rests.
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CONCEPT OF A PREJUDICIAL QUESTION
o That which arises in a case, the resolution of which is a logical antecedent of
the issue involved in the criminal case, and the cognizance of which pertains
to another tribunal.
o It is determinative of the criminal case, but the jurisdiction to try and resolve
it is lodged in another tribunal
o It is based on a fact distinct and separate from the crime but is so intimately
connected with the crime that it determines the guilt or innocence of the
accused
o It comes into play when a civil action and a criminal action are both pending,
and there exists, in the former case, an issue which must be preemptively
resolved before the latter case may proceed
REASON: To avoid conflicting decisions in the civil case and in the criminal case
EFFECT OF THE EXISTENCE OF A PREJUDICIAL QUESTION; SUSPENSION OF THE CRIMINAL
ACTION
o A petition for the suspension of a criminal action based upon the pendency
of a prejudicial question in a civil action may be filed
§ The filing of a petition before the suspension of the criminal
action is required
§ Since a petition to suspend can be filed ONLY in the CRIMINAL
action, the determination of the pendency of a prejudicial
question should be made at the first instance in the criminal
action, not before the SC in an appeal from the civil action
o When there is a prejudicial question, the action to be suspended is the
criminal and not the previously instituted civil action
§ A prejudicial question accords a civil case a preferential
treatment and constitutes an exception to the general rule that
the civil action shall be suspended when the criminal action is
instituted
o The rule authorizing the suspension of the criminal case by reason of a
prejudicial question does not prescribe the dismissal of the criminal action.
It only authorizes the suspension
WHERE TO FILE THE PETITION FOR SUSPENSION
o It is not required that the criminal case be already filed in court. It is sufficient
that the case be in the stage of preliminary investigation (as long as there
has already been a previously instituted civil case)
o It is not to be filed in the civil case but in the criminal case
o It may be filed with the office of the prosecutor conducting the preliminary
investigation
o When the criminal action has been filed in court for trial, the petition to
suspend shall be filed in the same criminal action at any time before the
prosecution rests
NOTE: An action for a declaration of nullity of marriage is not a prejudicial question in a
concubinage case (Beltran v. People)
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 | REMREV | JUDGE BOOMSRI
o In a case of parricide, the Court held that the action for nullity of marriage is
not a prejudicial question because at the time of the commission of the
alleged crime, they were both married (Pimentel v. Pimentel)
o The purchase by petitioner of the land or his execution of a real estate
mortgage will have no bearing whatsoever on whether petitioner knowingly
and fraudulently executed a false affidavit of loss (Magestrado v. People)
o The Court sustained the theory that the resolution of the issues raised in the
intra-corporate dispute will determine the guilt or innocence of the
respondent in the crime of estafa filed against him by the petitioner
§ One of the elements of the crime of estafa with abuse of
confidence is a demand made by the offended party to the
offender
§ Under the circumstances, since the alleged offended party is
the corporation, the validity of the demand for the delivery rests
upon the authority of the person making such a demand on the
company’s behalf
§ Taken in this light, if the supposed authority of petitioner is
found to be defective, it is as if no demand was ever made,
hence, the prosecution for estafa cannot prosper
o As to BP 22 violations, the Court held that there is no prejudicial question
because the resolution of the issue raised in the civil action is not
determinative of the guilt or innocence of the accused in the criminal cases
against him, and there is no necessity that the civil case be determined first
before taking up the criminal cases
§ In a criminal action for violation of BP 22, it is the mere issuance
of worthless checks with knowledge of the insufficiency of funds
to support the checks which constitutes the offense
§ As a consequence, even if the accused is declared not liable for
the payment of the value of the checks and damages, he cannot
be adjudged free from criminal liability for violation of BP 22
WHEN AN ADMINISTRATIVE CASE IS DEEMED A CIVIL CASE
o SC: An action for specific performance, even if pending with an administrative
agency, raises a prejudicial question
o It is civil in nature, but other body has jurisdiction
o e.g. Action for specific performance filed with the HLURB, when the HLURB
has exclusive jurisdiction over the case
AN INDEPENDENT CIVIL ACTION DOES NOT OPERATE AS A PREJUDICIAL QUESTION
o Since an independent civil action proceeds independently of the criminal
action, it does not raise a prejudicial question. This is because the result of
the independent civil action is irrelevant to the issue of guilt or innocence of
the accused
SECTION 7: ELEMENTS OF PREJUDICIAL QUESTION
The elements of a prejudicial question are: (a) the previously instituted civil action involves
an issue similar or intimately related to the issue raised in the subsequent criminal action,
and (b) the resolution of such issue determines whether or not the criminal action may
proceed.
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REQUISITES FOR A PREJUDICIAL QUESTION: (FRJ)
1. The civil case involves facts intimately related to those upon which the
criminal prosecution would be based
2. In the resolution of the issue or issues raised in the civil action, the guilt or
innocence of the accused would necessarily be determined
3. Jurisdiction to try said question must be lodged in another tribunal

A PREJUDICIAL QUESTION MAY NOT BE INVOKED WHEN:

1. Both cases are criminal
2. Both are civil
3. Both are administrative
4. One case is administrative and the other criminal
To employ the word “prejudicial” in any of these situations is to use the same not as a strict
legal term but as a mere journalistic device

NOTE: A prejudicial question cannot be appreciated where the subject actions are all civil
in nature

REMEMBER:
1. The principle of a prejudicial question will not arise if the criminal case was
instituted prior to the civil case.
§ It does not arise because the rule does not merely refer to an
instituted civil action but, specifically, to a previously instituted
civil action. (The rule makes reference to a subsequent criminal
action).
2. The issue that leads to a prejudicial question is one that arises in the civil
case and not in the criminal case.
§ It is the issue in the civil case which needs to be resolved first
before it is determined whether or not the criminal case should
proceed or whether or not there should be, in the criminal case,
a judgment of acquittal or conviction
3. Not every issue raised in the civil action will result in a prejudicial question
§ It is critical to show that the issue in the civil case is
determinative of the issue in the criminal case
§ What is determinative has not been defined, leaving the court
the task of adjudicating upon the existence or non-existence of
that vital factor in the application of the principle
§ If the resolution of the issue in the civil action will not determine
the criminal responsibility of the accused in the criminal action
based on the same facts, the civil case does not involve a
prejudicial question

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& JP+ET C2020 | REMREV | JUDGE BOOMSRI

CHAPTER 4: RULE 112 (PRELIMINARY INVESTIGATION) o XPN: When there is grave abuse of discretion
• Lodged
SECTION 1: PRELIMINARY INVESTIGATION DEFINED; WHEN REQUIRED o First instance: Public prosecutor
Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient o Ultimately: Secretary of Justice
ground to engender a well-founded belief that a crime has been committed and the • It is a substantive right (but not Constitutional, only statutory)
respondent is probably guilty thereof, and should be held for trial. o To deny the claim of accused for preliminary investigation would deprive
him of his right to due process.
Except as provided in section 7 of this Rule, a preliminary investigation is required to be o Where denial of due process is tainted with grave abuse of discretion,
conducted before the filing of a complaint or information for an offense where the penalty petition for certiorari and mandamus lie.
prescribed by law is at least four (4) years, two (2) months and one (1) day without regard • Only a mere inquiry/proceeding, not a trial
to the fine. o Need to determine probable cause, not guilt of the accused

PRELIMINARY INVESTIGATION (PI) NOTE: The right to a preliminary investigation may be waived for failure to invoke the right
o Definition: An inquiry or a proceeding the purpose of which is to determine prior to or at the time of the plea.
whether there is sufficient ground to engender a well-founded belief that:
o a crime has been committed and PROBABLE CAUSE
o the respondent is probably guilty thereof, and o Facts and circumstances sufficient to support a well-founded belief that:
o should be held liable for trial o a crime has been committed and
o Designed to free a respondent from the inconvenience, expense, ignominy o the accused is probably guilty thereof
and stress of defending him/herself in the course of a formal trial, until the o Based on opinion and reasonable belief; not actual and positive cause nor
reasonable probability of his or her guilt has been passed upon in a more or absolute certainty
less summary proceeding by a competent officer designated by the law for o Does not require an inquiry into whether there is sufficient evidence to
that purpose procure a conviction
o Before, PIs were conducted only for offenses cognizable by RTCs. o Evidence may even be based on hearsay
o Because the JDN of MTCs has been expanded by RA 7691, certain o Need not be based on clear and convincing evidence of guilt
offenses formerly within the JDN of RTCs came under the JDN of o Implies probability of guilt and requires more than bare suspicion
MTCs. but less than evidence to justify a conviction
o Consequently, some offenses which before were not covered by the o Cases:
required PI are now subject to PI even if such offenses are o Complainant claimed that they were taken at gunpoint by two men
cognizable by the MTCs as long as the same are punishable by at and forcibly boarded on a vehicle, and that they were detained for
least 4y, 2m, and 1d. more than 24 hours; SC: allegations sufficient to constitute crime
of kidnapping and serious illegal detention for purposes of PI
SPECIFIC PURPOSES OF PRELIMINARY INVESTIGATION o Investigating prosecutor dismissed complaint for falsification and
a. To inquire concerning the commission of a crime and the connection of the negated the NBI report that the signatures are not the same; SC:
accused with it, in order that he may be informed of the nature and character of The duty to determine authenticity of signature rests on the judge,
the crime charged against him, and, if there is probable cause for believing him during trial, not in the prosecutor during PI.
guilty, that the State shall take the necessary steps to bring him to trial
b. To preserve the evidence and keep the witnesses within the control of the state PRELIMINARY INVESTIGATION PRELIMINARY EXAMINATION
c. To determine the amount of bail, if the offense is bailable Determination of probable cause by the Determination of probable cause by the
executive department judicial department
Question sought to be answered: “Is the respondent probably guilty and therefore, should A function that pertains to a public One made by the judge to ascertain
go to trial?” prosecutor who is given a broad whether a warrant of arrest should be
discretion to determine whether probable issued against the accused. The judge
NATURE OF PRELIMINARY INVESTIGATION cause exists and to charge those whom must satisfy himself that based on the
• The conduct of preliminary investigation is a function that belongs to the public he believes to have committed the crime evidence submitted, there is necessity for
prosecutor (under the executive branch). as defined by law and thus, should be placing the accused under custody.
• Prosecution of crimes: Executive department held for trial
• Determination of probable cause: Executive function Whether there is enough evidence to Whether a warrant of arrest should be
o The courts cannot interfere with support an information being filed issued against the accused

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& JP+ET C2020 | REMREV | JUDGE BOOMSRI

REMEMBER: Courts acquire jurisdiction over the accused through arrest or voluntary It’s like a motion for reconsideration of the
surrender decision of the prosecutor, for conduct of
preliminary investigation. Except now
GENERAL RULE: Courts of law are precluded from disturbing the findings of public information is already in court.
prosecutors on the existence or non-existence of probable cause.
• Rationale: Principle of separation of powers The following motions are prohibited: (Revised Guidelines)

EXCEPTIONS: When the Secretary of Justice Preliminary Investigation Reinvestigation

1. Acts with grave abuse of discretion Motion for preliminary investigation Motion for reinvestigation of the
2. Grossly misapprehends the facts • filed beyond the 5-day reglementary prosecutor recommending the filing of
3. Acts in a manner so patent and gross as to amount to an evasion of positive period in inquest proceedings under information once the information has
duty or a virtual refusal to perform the duty enjoined by law Sec. 6, Rule 112, or been filed before the court
4. Acts outside contemplation of law • when preliminary investigation is • (1) if the motion is filed without prior
required under Sec. 8, Rule 112, or leave of court;
FOUR INSTANCES WHERE PROBABLE CAUSE IS NEEDED TO BE ESTABLISHED: • allowed in inquest proceedings and • (2) when preliminary investigation is
1. Sections By the to determine whether there is sufficient ground to the accused failed to participate in not required under Sec. 8, Rule 112;
1&3 of investigating engender a well-founded belief that a crime has been the preliminary investigate despite and
Rule officer committed and respondent is probably guilty thereof due notice • (3) when the regular preliminary
112 and should be held for trial. investigation is required and has
been actually conducted, and the
grounds relied upon in the motion
2. Sections By the judge to determine whether a warrant of arrest or
are not meritorious, such as issues
5&8 of commitment order, if the accused has already been
of credibility, admissibility of
Rule arrested, shall be issued and that there is a necessity
evidence, innocence of the accused,
112 of placing the respondent under immediate custody in or lack of due process when the
order not to frustrate the ends of justice
accused was actually notified,
among others
3. Section By a peace when an offense has just been committed, and he has
5(b) of officer or probable cause to believe based on personal
Rule private knowledge of facts or circumstances that the person to
113 person be arrested has committed it. Revised Guidelines codal enumerated in Boomsri’s syllabus pertain to the following:
making a 2(b) Prohibited Motions. - Prohibited motions shall be denied outright before the scheduled
warrantless arraignment without need of comment and/or opposition.
arrest The following motions are prohibited:
4. Section By the judge to determine whether a search warrant shall be issued, ii. Motion for preliminary investigation filed beyond the five (5)-day reglementary
4 of and only upon probable cause in connection with one period in inquest proceedings under Sec. 6, Rule 112, or when preliminary
Rule specific offense to be determined personally by the investigation is required under Sec. 8, Rule 112, or allowed in inquest proceedings
126 judge after examination under oath or affirmation of and the accused failed to participate in the preliminary investigation despite due
the complainant and the witnesses he may produce, notice.
and particularly describing the place to be searched iii. Motion for reinvestigation of the prosecutor recommending the filing of
and the things to be seized which may be anywhere in information once the information has been filed before the court
the PH. (1) if the motion is filed without prior leave of court;
(2) when preliminary investigation is not required under Sec. 8, Rule 112; and
(3) when the regular preliminary investigation is required and has been actually
PRELIMINARY INVESTIGATION V. REINVESTIGATION
conducted, and the grounds relied upon in the motion are not meritorious, such
Preliminary Investigation Reinvestigation
as issues of credibility, admissibility of evidence, innocence of the accused, or
proceedings are before the Office of the proceedings are before the court lack of due process when the accused was actually notified, among others.
prosecutor
Ends when information is filed in court Happens when information is already in
court

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& JP+ET C2020 | REMREV | JUDGE BOOMSRI

3(c) Meritorious Motions. - Motions that allege plausible grounds supported by relevant
documents and/or competent evidence, except those that are already covered by the
Revised Guidelines, are meritorious motions, such as:
i. Motion to withdraw information, or to downgrade the charge in the original
information, or to exclude an accused originally charged therein, filed by the
prosecution as a result of a reinvestigation, reconsideration, and review;
SECTION 2: OFFICERS AUTHORIZED TO CONDUCT PRELIMINARY INVESTIGATION
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
 against the respondent, and these shall be made available for examination or copying by
(b) National and Regional State Prosecutors; and
 the respondent at his expense.
(c) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes cognizable by
the proper court in their respective territorial jurisdictions.
OFFICERS AUTHORIZED TO CONDUCT PRELIMINARY INVESTIGATION AND DETERMINE
EXISTENCE OF PROBABLE CAUSE:
1. Provincial or City Prosecutors and their assistants
2. National and Regional State Prosecutors
3. Other officers as may be authorized by law (See additional persons)
Their authority shall include all crimes cognizable by the proper court in their respective
territorial jurisdiction (A.M. 05-06-26-SC)
ADDITIONAL PERSONS AUTHORIZED TO CONDUCT A PRELIMINARY INVESTIGATION:
1. COMELEC through its duly authorized legal officers
o Election offenses punishable under the Omnibus Election Code
2. Office of the Ombudsman
o On its own or on complaint by any person, 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
o It has primary jurisdiction over cases cognizable by the Sandiganbayan
and it may take over, at any stage, from any investigatory agency of the
government, the investigation of such cases
3. PCGG with the assistance of the OSG and other government agencies
SECTION 3: PROCEDURE
The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state
o the address of the respondent and
o shall be accompanied by the affidavits of the complainant and his witnesses,
o as well as other supporting documents to establish probable cause.
They shall be in such number of copies as there are respondents, plus two (2) copies for
the official file. The affidavits shall be subscribed and sworn to before:
o any prosecutor or
o government official authorized to administer oath, or,
o in their absence or unavailability, before a notary public,
each of who must certify that he personally examined the affiants and that he is satisfied
that they voluntarily executed and understood their affidavits
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& JP+ET C2020 | REMREV | JUDGE BOOMSRI
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
o dismiss it if he finds no ground to continue with the investigation, or
o issue a subpoena to the respondent attaching to it a copy of the complaint and
its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant
which he may not have been furnished and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify those which he intends to present
Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter-
affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the complainant. The respondent shall not
be allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent (1) cannot be subpoenaed, or (2) if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall resolve the
complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified
from a party or a witness. The parties can be present at the hearing but without the right to
examine or cross-examine. They may, however, submit to the investigating officer questions
which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and
other documents or from the expiration of the period for their submission. It shall be
terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial.
SEE: FLOWCHART OF PROCEDURE AFTER DISCUSSION
STEPS IN PRELIMINARY INVESTIGATION
1. Filing the complaint [affidavit] (different from the complaint filed for the
purpose of instituting a criminal prosecution)
i. Required to state the address of the respondent
ii. Accompanied by
1. Affidavits of the complainant
2. Affidavits of his witnesses
a. All affidavits can be subscribed and sworn to any
prosecutor or government official authorized to
administer oaths
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b. In their absence, can be sworn to before a notary
public
3. Other supporting documents to establish probable cause
2. Within 10 days from filing the complaint, options of the investigating officer
are:
i. Dismissal of the complaint if the investigating officer finds no ground to
conduct investigation
ii. To issue a subpoena in case he finds the need to continue.
1. Shall be accompanied by copy of complaint and supporting
affidavit and documents
a. Here, a respondent’s right to examine refers to only
the evidence submitted by the complainant,
2. Objects as evidence need not be furnished but shall be made
available for examination, copying or photographing at the
expense of the requesting party
3. Respondent cannot file motion to dismiss, but required to submit his counter-
affidavit within 10 days after subpoena
1. Counter-affidavit shall also be sworn and certified the same
way.
2. Complainant has the RIGHT to receive a copy of the counter-
affidavit. Failure to give complainant a copy of the counter-
affidavit is a procedural defect affecting due process.
3. Complainant can file a reply-affidavit, respondent allowed to
rebut the same through a rejoinder-affidavit.
4. If:
i. despite subpoena, the respondent does not submit his counter-affidavit
within the 10-day period, OR
ii. the respondent cannot be subpoenaed
1. The investigating officer shall resolve the complaint based on
the evidence presented by the complainant
2. Would have the effect of an ex parte investigation because the
respondent cannot or does not participate in the proceedings
3. Reason: to foil attempts of respondent to delay prosecution
5. Within 10 days from submission of counter-affidavit hearing may be set
i. IF there are facts and issues to be clarified from a party or a witness
1. If parties have questions, they shall submit the questions to
the investigation officer who shall ask them to the party or
witness concerned
2. The parties can be present in the hearing but do NOT have the
right to examine or cross-examine each other or the witnesses.
3. Hearing shall be terminated within 5 days
ii. A clarificatory hearing is not indispensable
6. Within 10 days from termination of investigation
i. The investigating prosecutor shall determine WoN there is sufficient
ground to hold the respondent for trial
Complaint for PI Complaint for Criminal Prosecution
Defined under Sec. 3, Rule 112 Complaint defined under Sec. 3 of Rule
110 and which is in the name of the
People
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& JP+ET C2020 | REMREV | JUDGE BOOMSRI
His affidavit is merely treated as a Where the averments must be contained
component of a complaint. All necessary in one document charging one offense.
allegations need not be contained in a
single document.
Notes:
o The filing of the complaint with the investigating prosecutor starts the
preliminary investigation process. The complaint is normally initiated through an
affidavit of complaint.
o The rule establishes a hierarchy with respect to persons before whom the
affidavits may be subscribed and sworn to.
o The prosecutor, official or notary public does not perform a mere perfunctory or
mechanical duty.
o He is obliged by the Rules to conduct a personal examination of the
affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
o The rule does not require the investigating officer to furnish the respondent with
the copies of the counter-affidavits to his CO-RESPONDENTS.
o There is no provision in Rule 112 that gives the complainant the RIGHT to file a
reply to counter-affidavit. To illustrate the non-mandatory nature of a reply in PI,
Sec. 3(d) empowers the prosecutor to resolve the complaint even w/o a counter-
affidavit ex-parte.
o The accused in a preliminary investigation has no right to cross-examine the
witnesses which the complainant may present (asked in class)
o Respondent shall only have the right to:
o submit a counter-affidavit
o examine all other evidence submitted by the complainant, and
o where the fiscal sets a hearing to propound clarificatory questions to
the parties or their witnesses to be afforded an opportunity to present
but without the right to examine or cross-examine
Boomsri Notes:
OVERVIEW OF THE PRELIMINARY INVESTIGATION PROPER
⁃ Initiated by filing by affidavit complaint with the OCP. Go to docketing section and
ask who is the prosecutor assigned today. Because the affidavit-complaint has to
subscribed and sworn to before the investigating prosecutor
⁃ Notarized affidavit of complaint not allowed
⁃ As long as the OCP will issue a subpoena and served in good faith, even if it was
not actually received by respondent as when he cannot be served, the
requirement is already met. The case will be decided according to the affidavit-
complaint, if the opposing party does not submit counter-affidavits.
⁃ If he receives it, he must respond through a counter-affidavit. In making the CA,
you have to accompany your client to the OCP. Even the complaint affidavit can
only be subscribed and sworn before the public prosecutor.
⁃ Jurat is not what is needed. It is the signature of the public prosecutor.
⁃ Ends with a resolution + information. This will be prosecuted tot he city prosecutor
who will sign both and then forward the same to court.
⁃ Upon filing of information PI Proper is deemed completed.
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⁃ But you can file MR with the OCP, OR
⁃ 15d to file Petition for Review with the DOJ. Your petition must annex a
petition for suspension of arraignment for a maximum of 60 days.
Upon the filing information, what happens?
⁃ Case will then be raffled.
⁃ Crespo v. Mogul: At this point, Court now has total control over information or
criminal case.
⁃ But note that in the OCP side, the losing party can still file an MR. But
this will not be considered by the court as a valid ground for suspending
arraignment. It’s not one of those stated (jurisprudence)
⁃ EXCEPT Aguinaldo v. Vectus case: if there is pending MR in the
OCP, the court MAY suspend arraignment (directory only).
Boomsri does not agree though.
⁃ BUT: if you filed a petition for review with the DOJ BEFORE the
arraignment, arraignment is suspended. It’s one of the enumerated
grounds.
⁃ If you filed PetRev AFTER the arraignment, PetRev in DOJ will
not be allowed.
⁃ If DOJ grants, order OCP to file a motion to withdraw information;
⁃ If DOJ denies, order a prosecutor to prosecute the case
Information reaches the court in 3 ways:
1. Filed after PI
1. Court has 3 options.
2. If the court wants to dismiss the case on the ground of no PC, he should
do so in the first instance. Once he issues the warrant, such is equivalent
to finding of PC.
2. No PI, through Direct Filing
3. Inquest (if the crime is punishable by 421)
If the judge finds that there is PC, should the judge already arraign? No not yet. Unless the
accused posted bail or arrested, arraignment cannot be done yet because you have no
jurisdiction over the accused. If within 60 days, no jurisdiction still, case will be ARCHIVED
(par. 3 subsection 6 of Revised Guidelines).
If accused will post bail, accused should proceed to court personally. No proxy allowed.
Once his jurisdiction is acquired, the Court can now set his case for arraignment within 30d
acc. to guidelines. He will get an order recalling his warrant of arrest and he should bring
this always because the police can re-arrest you if you have no proof that your warrant was
lifted. That’s because Police does not need the actual warrant to arrest.
PI > information > finding of PC through personal examination > warrant of arrest > arrested
> certificate of detention will be filed in the court informing the court that the accused is
now detained in the police station.
Duty of the court then if accused is already arrested, it will issue a commitment order. This
will order the transfer of the accused to the city jail. Together with the CO is the setting of
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 | REMREV | JUDGE BOOMSRI
the arraignment of the PDL/detainee within 10d, arraignment and pre-trial will be the same
day.
If there is no PI (but PI should have been done), but an information was filed, remedy is to
file a motion to refer the case for preliminary investigation before arraignment.
• Do not file a motion for reinvestigation. A reinvestigation connotes that a PI
was conducted. You’re asking the court to direct the OCP to conduct further
investigation. it’s equivalent to an MR but in court. But follow the guidelines.
Else, it will be deemed a prohibited motion. Important that there should be
leave of court.
if there is no PI because the crime is not punishable 4-2-1, follow 3a in connection with Sec.
8.
• Court has 3 options:
o dismiss if no PC
o issue a warrant of arrest
o Summons
§ only instance where summons is issued in a criminal case
• Again: after issuance of warrant, you cannot arraign yet. You need to get
jurisdiction over the accused.
SECTION 4: RESOLUTION OF INVESTIGATING PROSECUTOR AND ITS REVIEW
If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare
the resolution and information. He shall certify under oath in the information that he, or as
shown by the record, an authorized officer:
o has personally examined the complainant and his witnesses;
o that there is reasonable ground to believe that a crime has been committed and
that the accused is probably guilty thereof;
o that the accused was informed of the complaint and of the evidence submitted
against him; and
o that he was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to
o the provincial or city prosecutor or chief state prosecutor, or
o to the Ombudsman or his deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction.
They shall act on the resolution within ten (10) days from their receipt thereof and shall
immediately inform the parties of such action.
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 the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists,
the latter may
o by himself, file the information against the respondent, or
30

o direct any other assistant prosecutor or state prosecutor to do so without • Reason: No complaint or information may be filed or dismissed by an investigating
conducting another preliminary investigation. prosecutor without the prior written authority or approval of those mentioned
above
If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of RULE WHEN RECOMMENDATION FOR DISMISSAL IS DISAPPROVED
the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor • Either one of those mentioned above, may by himself, file the information against
concerned the respondent
o either to file the corresponding information without conducting another • Either one can also direct another assistant prosecutor or state prosecutor to do
preliminary investigation, or so without conducting another preliminary investigation
o to dismiss or move for dismissal of the complaint or information with notice to the
parties. MOTION FOR RECONSIDERATION (Total: 30 days)
The same rule shall apply in preliminary investigations conducted by the officers of the • Aggrieved party may file an MR within 15 days from receipt of the assailed
Office of the Ombudsman. resolution
• If said motion is denied, he may appeal within 15 days from the denial of the MR
IS THERE CAUSE TO HOLD RESPONDENT FOR TRIAL? (Sec. 3, 2000 NPS Rule on Appeal, DOJ Department Circular No. 70).
o If the answer to the question is YES:
o The investigating prosecutor shall prepare both the resolution and APPEALS TO THE SECRETARY OF JUSTICE (Petition for Review)
information
• The prosecutor’s ruling is reviewable by the Secretary of Justice who has the power
o If the answer to the question is NO:
to reverse, modify or affirm the prosecutor’s determination
o He shall recommend the dismissal of the complaint
• In cases subject of preliminary investigation or reinvestigation, an appeal may be
INFORMATION brought to the SOJ from the resolutions of the Chief State Prosecutor, Regional
State Prosecutors and Provincial/City Prosecutor
o Shall contain certification by the investigating officer under oath in which he
shall certify: • The appeal does not hold or prevent the filing of the corresponding information in
o That he, or as shown by the record, an authorized officer, has personally court based on the finding of probable cause in the appealed resolution
examined the complainant and his witnesses o XPN: The SOJ directs otherwise
o That there is a reasonable ground to believe the crime has been o Party filing a petition for review is allowed to file a motion for the suspension
committed of the arraignment
o The accused is probably guilty thereof o Rule 116, Section 11(c): Upon motion by the proper party, the arraignment
o The accused was informed of the complaint and of the evidence shall be suspended, among others, if a petition for review of the resolution
submitted against him of the prosecutor is pending
o The accused was given an opportunity to submit controverting evidence
ASSAILING RESOLUTION OF SECRETARY OF JUSTICE (certiorari)
• Notwithstanding the absence of a certification as to the holding of a preliminary
investigation, it is nonetheless valid • Where the findings of the investigating prosecutor or the Secretary of DOJ as to
o A certification is not an essential part of the information itself the existence of probable cause are equivalent to a gross misapprehension of
o Its absence cannot vitiate it as such facts, certiorari will lie to correct these errors.
o What is not allowed is the filing of the information without a preliminary • Remedy: Petition for Certiorari to the CA, solely on the ground that the SOJ
investigation having been conducted committed grave abuse of discretion amounting to lack of jurisdiction
• This does not apply to tax and tariff offenses; now with CTA by virtue of RA 9282.
FORWARDING OF THE RECORDS OF THE CASE FOR ACTION
• Within 5 days from resolution, the investigating officer shall forward the record of APPEAL TO THE OFFICE OF THE PRESIDENT
the case to the: • While judicial pronouncements do not allow an appeal to the CA under Rule 43,
o Provincial or city prosecutor or the appeal pertains only to a judicial appeal
o Chief State Prosecutor or o An administrative appeal is also not proscribed
o Ombudsman or his deputy • Appeals from or petition for review of decisions/orders/resolutions of the SOJ on
• They shall act on the resolution within 10 days from receipt and shall immediately preliminary investigations of criminal cases are entertained by the Office of the
inform parties of such action President under the ff conditions:
1. The offense involved is punishable by RP to death
2. New and material issues are raised which were not previously
presented before the DOJ and hence, not ruled upon

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& JP+ET C2020 | REMREV | JUDGE BOOMSRI

3. The prescription of the offense is not due to lapse within 6 months
from notice of the questioned resolution
4. The appeal or petition for review is filed within 30 days from notice
• If appeal does not fall w/in the jurisdiction of the OP, it shall be dismissed outright
o Remedy should be certiorari
• If lack of jurisdiction is not readily apparent, the appellant/petitioner shall be
ordered to prove the necessary jurisdictional facts

Boomsri Notes:
• What is your remedy if the decision of the SOJ does not fit the conditions for appeal
to OP? Certiorari under Rule 65. You cannot use Rule 43 because finding of
probable cause is not a quasi-judicial function.

APPEALS UNDER RULE 43 AND RULE 45

• From the Office of the President with the Court of Appeals: Rule 43
• From the Court of Appeals to the Supreme Court: Rule 45

APPEALS UNDER RULE 65

• For criminal cases, the Ruling of the Ombudsman shall be elevated to the Supreme
Court
• Restricted only in determining whether grave abuse of discretion has been
committed

Q: When does one have to go to the Ombudsman?

A: When it is the Sandiganbayan that has jurisdiction over the case

Summary of Appeals for Preliminary Investigation:

• From resolution of City/Chief Prosecutor, MR first (15d).
• Then appeal to SOJ via Petition for Review.
o NOTE: File motion to suspend arraignment here.
• From SOJ, options will depend on the circumstances
o Appeal to OP IF crime is:
§ Punishable by RP to death
§ New and material issues are raised
§ Will not prescribe in 6 months
§ Filed within 30d
o Certiorari to CA via 65 if otherwise.
• From OP, appeal via 43 to CA.
• From CA, appeal via 45 to SC

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SECTION 5: WHEN WARRANT OF ARREST MAY ISSUE
a) By the Regional Trial Court. — Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence.
o He may immediately dismiss the case if the evidence on record clearly fails to
establish probable cause.
o If he finds probable cause, he shall issue a warrant of arrest, or a commitment
order if the accused has already been arrested pursuant to a warrant issued by
the judge who conducted the preliminary investigation or when the complaint or
information was filed pursuant to section 7 of this Rule.
o In case of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and the
issue must be resolved by the court within thirty (30) days from the filing of the
complaint of information.
Note: Use this for offenses with a penalty greater than 6 years
(b) By the Municipal Trial Court. — When required pursuant to the second paragraph of
section 1 of this Rule, the preliminary investigation of cases falling under the original
jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial
Court, or Municipal Circuit Trial Court may be conducted by either the judge or the
prosecutor.
o When conducted by the prosecutor, the procedure for the issuance of a warrant
or arrest by the judge shall be governed by paragraph (a) of this section.
o When the investigation is conducted by the judge himself, he shall follow the
procedure provided in section 3 of this Rule. If the findings and recommendations
are affirmed by the provincial or city prosecutor, or by the Ombudsman or his
deputy, and the corresponding information is filed, he shall issue a warrant of
arrest.
o However, without waiting for the conclusion of the investigation, the judge may
issue a warrant of arrest if he finds after an examination in writing and under oath
of the complainant and his witnesses in the form of searching question and
answers, that a probable cause exists and that there is a necessity of placing the
respondent under immediate custody in order not to frustrate the ends of justice.
Note: Use this for offenses with a penalty greater than 4 years, 2 months and 1 day, but
less than 6 years (not sure about this)
(c) When warrant of arrest not necessary. — A warrant of arrest shall not issue if:
o the accused is already under detention pursuant to a warrant issued by the
municipal trial court in accordance with paragraph (b) of this section, or
o if the complaint or information was filed pursuant to section 7 of this Rule (“Sec.
6” now as amended by AM No. 05-08-26-SC, 2005) or
o is for an offense penalized by fine only.
The court shall then proceed in the exercise of its original jurisdiction.
ACTION OF THE JUDGE
• Within 10 days from the filing of the complaint or information, shall personally
evaluate the resolution of the prosecutor
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 | REMREV | JUDGE BOOMSRI
o Shall also look into its supporting evidence
o Note: under Sec. 5, Rule 112, the court, where the PI has previously been
conducted, does NOT have the duty to personally examine the complainant
and his witnesses in writing and under oath and in the form of searching
questions and answers.
o This type of examination, as an option for the court, applies ONLY
in a case where there is direct filing of the complaint or information
with the MTC, since no PI has been conducted
• May find that the evidence:
o Fails to establish probable cause
o May immediately dismiss the case
o Establishes probable cause
o Shall issue a warrant of arrest
o If already arrested: commitment order
o Engenders doubt as to the existence of probable cause
o May order the prosecution to submit additional evidence within
5 days from notice (not mandatory)
The dismissal of a case for lack of probable cause of the judge is a final order since it
disposes of the case, terminates the proceedings and leaves the court with nothing further
to do with respect to the case
o Proper remedy is appeal, not certiorari
Boomsri Notes:
• For >4-2-1 offenses, courts must ALWAYS issue warrant of arrest within 10 days
if there is probable cause as determined by judge.
o A motion for judicial determination of probable cause is now a prohibited
motion.
o Filing a motion to quash is improper (De Lima case). SC said MTQ should
not be decided at this stage.
WHEN WARRANT OF ARREST NOT NECESSARY
1. When a complaint or information has already been filed pursuant to a lawful
warrantless arrest
a. The accused is already under detention and was lawfully arrested
without a warrant and a complaint or information has been filed
under Sec. 6
2. When a warrant has already been issued by the MTC judge pursuant to Sec
5(b) and the accused is already detained
3. When the accused is charged for an offense punishable only by fine
4. When the case is subject to the Rules on Summary Procedure
o XPN: Unless he fails to appear whenever required (issue a Bench
Warrant)
Boomsri Notes:
• There are instances when the court decides that there is probable cause but court
does not issue a warrant. As when, offense is punishable only be fine, subject of
Summary Procedure. In these cases, the Judge will just make a finding of probable
35

cause and set the case for arraignment. If accused does not attend, issue a bench
warrant.
• No warrant of arrest also for cases not requiring PI (<4-2-1), Sec. 8(b). The judge
can issue summons only.
• If accused is absent, issue a bench warrant if its forfeiture of cash bond
WITHDRAWAL OF INFORMATION ALREADY IN COURT (Crespo v. Mogul)
o Can the Trial Court acting in a Motion to Dismiss a criminal case filed by the
Provincial Fiscal upon instructions of the SOJ to whom the case was elevated for
review, may refuse to grant the motion and insist on the arraignment and trial on
the merits? YES.
o Once a criminal complaint or information is filed in court, any disposition of the
case or dismissal or acquittal or conviction of the accused rests within the
exclusive jurisdiction, competence and discretion of the trial court
o The trial court, having acquired jurisdiction over the case, is not bound by such
resolution but is required to evaluate it before proceeding farther with the trial.
While the Secretary’s ruling is persuasive, it is not binding on the courts.
o Otherwise, the court effectively abdicates its judicial power to the
executive, and refuses to perform a positive duty enjoined by law
o Same rule applies to a motion to withdraw the information or to dismiss the case
even before or after arraignment of the accused.
Q: Difference of probable cause under this Section and Section 3?
A: Probable cause in Section 3: To see if respondent should go to trial
Probable cause in Section 5: To see if respondent committed a crime, and should be
arrested
Boomsri Notes:
• Can a judge overturn or interfere the finding of the prosecutor of probable cause?
Technically it’s reviewing. The judge can make his own determination. According
to Crespo v. Mogul, once a criminal complaint or information is filed in court, any
disposition of the case or dismissal or acquittal or conviction of the accused rests
within the exclusive jurisdiction, competence and discretion of the trial court
SECTION 6: WHEN ACCUSED LAWFULLY ARRESTED WITHOUT A WARRANT
When a person is lawfully arrested without a warrant involving an offense which requires a
preliminary investigation, the complaint or information may be filed by a prosecutor without
need of such investigation provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may
be filed by the offended party or a peace officer directly with the proper court on the basis
of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a preliminary
investigation in accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, in the presence of his counsel.
Notwithstanding the waiver, he may apply for bail and the investigation must be terminated
within fifteen (15) days from its inception.
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After the filing of the complaint or information in court without a preliminary investigation,
the accused may, within five (5) days from the time he learns of its filing, [still] ask for a
preliminary investigation with the same right to adduce evidence in his defense as provided
in this Rule.
INSTANCES WHEN PRELIMINARY INVESTIGATION NOT REQUIRED
o If a person is arrested lawfully without a warrant involving an offense which requires a
preliminary investigation, an information or complaint may be filed against him without
need for a preliminary investigation
o The person arrested shall be required to undergo an inquest
o Case: If a person is arrested in flagrante delicto while robbing the victim,
the arrest is lawful. But a preliminary investigation is not required,
despite having a maximum penalty of 6 years because he was validly
arrested without a warrant.
o If he has been arrested in a place where an Inquest Prosecutor is
available, an inquest will be conducted instead of a PI.
o In the absence or unavailability of an inquest prosecutor, an inquest may be
dispensed with.
o The rule allows the filing of a complaint directly with the proper court by
the offended party or a peace officer on the basis of the affidavit of the
offended party or arresting office. (Sec. 7, Rule 112).
o The direct filing under this rule is another instance in which a direct filing
may be done.
o The Revised Rule on Summary Procedure does not provide for a preliminary
investigation prior to the filing of a criminal case.
o A criminal case within the same shall be commenced either by filing of
a complaint or information in the MTC
INQUEST PROCEEDING: An investigation conducted by a prosecutor in criminal cases where
a person has been lawfully arrested and detained without a warrant of arrest.
o Proper only where the accused has been lawfully arrested without a warrant
o Not a preliminary investigation
o A summary investigation which does not follow the procedures under Section 3 of
this Rule
o Conducted by a public prosecutor who is assigned inquest duties as an Inquest
Officer
o To discharge his duties only at the police stations/headquarters of the PNP
o XPN: Unless otherwise directed
o Deemed commenced from the time the Inquest Officer receives the complaint and
referral documents from the law enforcement authorities, which include
o Affidavit of arrest
o Investigation report
o Statements of the complainant and the witnesses
o Other supporting evidence gathered
o Detained person should be present in the inquest proceedings
o XPN: Reasons exist that would dispense with his presence like confinement
in a hospital, detention in maximum security place, or his presence is not
feasible by reason of age, health, or other similar factors.
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o If necessary, the Inquest Officer shall require the presence of the complaining
witnesses and subject them to an informal and summary investigation or
examination for purpose of determining the existence of probable cause.
Inquest conducted must be for the offense for which detainee was arrested
o Beltran v. People: Beltran was arrested w/o a warrant but was not informed of the
crime for which he was arrested. He was subjected to an inquest for Inciting to
Sedition. Days after, he subjected to another inquest but this time for rebellion.
An information for rebellion was then filed with the RTC.
o SC: The inquest proceedings against Beltran for rebellion is void. The affidavit of
arresting officers states that he was arrested for Inciting to Sedition. The inquest
prosecutor could only have conducted an inquest for the same, and not rebellion.
OPTION FOR PRELIMINARY INVESTIGATION
One may ask for a preliminary investigation even if an inquest is the proceeding which shall
apply when a person is lawfully arrested without a warrant
o Must be done before complaint or information is filed
o Must sign a waiver of the provisions of Art. 125 of the RPC
o Art. 125 imposes a penalty upon a public officer or an employee who,
although having detained a person for some legal ground, fails to deliver
the person arrested to the proper judicial authorities within the periods of
12, 18, or 36 hours as the case may be.
o RA 7438: The waiver must be in writing, signed by such person in the
presence of counsel; otherwise void
o This waiver does not preclude him from applying for bail
o While a PI is undertaken, the person arrested is still under detention. To
effect his release, he may apply for bail.
o Rule 114, Section 17(c): any person in custody who is not yet charged in
court may apply for bail with any court in the province, city or municipality
where he is held.
o Case: accused was arrested w/o warrant and detained in QC. He
asked for PI and signed a waiver. However, it was the judge of
Marikina RTC who approved the bail bond. SC: the bail application
should have been filed in a QC Court.
o In this case, the preliminary investigation must be terminated within 15 days from
its inception
BUT: The filing of the complaint or information does not bar one from asking for a
preliminary investigation
o He has 5 days from the time he learns of its filing, with the right to adduce
evidence under Rule 112
Boomsri Notes:
• The first duty of the inquest prosecutor is to determine whether the arrest is
valid
• After it determines the validity of the arrest, he will then determine whether the
crime is subject to Preliminary Investigation 4/2/1
o If yes, determine probable cause
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§ Within 5 days, the respondent can request for a full blown
Preliminary Investigation
o If no, refer for further investigation
ABSENCE OF PRELIMINARY INVESTIGATION
o Does not affect the court’s jurisdiction over the case nor does it impair the
validity of the information or otherwise, renders it effective
o Is not a ground for quashal of complaint or information
o The court should not dismiss the information, but should REMAND the case
to the prosecutor so that the investigation may be conducted.
o Ex. In a graft case where the accused were deprived of PI
preparatory to the filing of informations against them, the SC said
SB is to hold in abeyance any further proceedings and to remand
the case to the Ombudsman for the completion of PI, the outcome
of which should be indorsed to SB for its action.
POSSIBLE OPTIONS OF THE INQUEST PROSECUTOR
o INQUEST PROSECUTOR’s INITIAL DUTY: To see whether the detained person has
been arrested in accordance with Section 5(a) and (b) of Rule 113
o He can summarily examine the arresting officers on the circumstances
surrounding the arrest or apprehension of the detained person (check
affidavit of arrest made by police)
o If the answer to the question is NO
o He shall not continue with the inquest proceedings
o Shall recommend the release of the detainee
o Note down the disposition on the referral document
o Prepare a brief memorandum indicating the reasons for the action he
took
o Forward the same together with the record of the case to the City or
Provincial Prosecutor
o Once the recommendation is approved, the order of release
shall be served on the officer having custody of said detainee
so the latter may be released.
o If the answer to the question is YES
o The inquest shall proceed
o Inquest Officer shall ask detained person if he desires to avail himself
of a preliminary investigation
o He may conduct the preliminary investigation himself or by any
other Assistant Prosecutor
o Either way, he shall recommend release of the accused if he finds no
probable cause
Boomsri Notes:
• T/F: do all warrantless arrest undergo inquest?
• False. Inquest is only needed if the crime committed is a crime requiring PI (4-2-
1).
Q: Can respondent file a counter-affidavit during inquest?
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A: Yes, but remember the time-constraint (Art. 125, RPC)
SECTION 7: RECORDS
(a) Records supporting the information or complaint. — An information or complaint filed in
court shall be supported by the affidavits and counter-affidavits of the parties and their
witnesses, together with the other supporting evidence and the resolution on the case.
(b) Record of preliminary investigation. — The record of the preliminary investigation,
whether conducted by a judge or a fiscal, shall not form part of the record of the case.
However, the court, on its own initiative or on motion of any party, may order the production
of the record or any its part when necessary in the resolution of the case or any incident
therein, or when it is to be introduced as an evidence in the case by the requesting party.
SECTION 8: CASES NOT REQUIRING PRELIMINARY INVESTIGATION
(a) If filed with the prosecutor. — If the complaint is filed directly with the prosecutor
involving an offense punishable by imprisonment of less than four (4) years, two (2) months
and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The
prosecutor shall act on the complaint based on the affidavits and other supporting
documents submitted by the complainant within ten (10) days from its filing.
(b) If filed with the Municipal Trial Court. — If the complaint or information is filed directly
with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this
section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days
after the filing of the complaint or information, the judge finds no probable cause after
personally evaluating the evidence, or after personally examining in writing and under oath
the complainant and his witnesses in the form of searching question and answers, he shall
dismiss the same. He may, however, require the submission of additional evidence, within
ten (10) days from notice, to determine further the existence of probable cause. If the judge
still finds no probable cause despite the additional evidence, he shall, within ten (10) days
from its submission or expiration of said period, dismiss the case. When he finds probable
cause, he shall issue a warrant of arrest, or a commitment order if the accused had already
been arrested and hold him for trial. However, if the judge is satisfied that there is no
necessity for placing the accused under custody, he may issue summons instead of a
warrant of arrest.
Preliminary investigation is not required where the law prescribes a penalty of less than 4
years, 2 months and 1 day without regard to the fine
PROCEDURE FOR CASES NOT REQUIRING A PRELIMINARY INVESTIGATION:
1. By filing the complaint directly with the prosecutor (Manila and other
chartered cities)
2. By filing the complaint or information with the MTC/METC
DIRECT FILING WITH THE PROSECUTOR
o Procedure under Section 3(a) should apply
o The complaint shall state the address of the respondent and shall
be accompanied by the affidavits of the complainant and his
witnesses, as well as other supporting documents to establish
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probable cause. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official file.
o The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or,
in their absence or unavailability, before a notary public, each of
whom must certify that he personally examined the affiants and
that he is satisfied that they voluntarily executed and understood
their affidavits
o The prosecutor shall act on the complaint based on the affidavits and other
supporting documents submitted by the complainant within 10 days from
its filing
o Since only Sec. 3(a) of Rule 112 applies, the respondent need not be
issued a subpoena or required to submit counter affidavits (this is required
only in PI).
DIRECT FILING WITH THE MTC
o The complaint involves an offense punishable by imprisonment of less than
4 years, 2 months and 1 day, procedure under Section 3(a) should be applied
o The judge need not issue a subpoena (same as above rule)
o If within 10 days from the filing of the complaint or information, the judge
finds no probable cause, he shall dismiss the same
o Before the dismissal, the judge has several options
o To personally evaluate the evidence submitted to the court
o To personally examine in writing and under oath the complainant and
his witnesses in the form of searching questions and answers
o Options of the judge are not exclusive
o If the judge desires to further determine the existence of probable
cause, he may require the submission of additional evidence within 10
days from notice
o If the judge finds probable cause, he shall file a warrant of arrest
o If the accused has already been arrested, the court shall issue a commitment
order
o If the judge is satisfied that there is no necessity for placing the accused
under custody, he may issue summons instead of a warrant of arrest
NO PRELIMINARY INVESTIGATION UNDER SUMMARY PROCEDURE
o The Revised Rule on Summary Procedure does not provide for a preliminary
investigation prior to the filing of a criminal case.
o A criminal case within the same shall be commenced either by filing of a complaint
or information in the MTC
o However, in MM and other Chartered Cities, such cases shall be
commenced only by information
o EXCEPT when the offense cannot be prosecuted de officio.
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CHAPTER 5: RULE 113 (ARREST)
SECTION 1: DEFINITION OF 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.
PURPOSE: To make him answer for the commission of an offense
SECTION 2: ARREST; HOW MADE
An arrest is made by an (1) actual restraint of a person to be arrested, or by his (2)
submission to the custody of the person making the arrest.
No violence or unnecessary force shall be used in making an arrest. The person arrested
shall not be subject to a greater restraint than is necessary for his detention.
TWO WAYS:
1. Restraint by the person making the arrest
2. Voluntary submission to the custody of the person making the arrest
o Need not actually restrain a person.
THE TERM IMPLIES:
1. Control over the person under custody
2. As a consequence: A restraint on his liberty
3. Extent: He is not free to leave on his own volition
Neither the application of force, manual touching of the body, physical restraint nor a formal
declaration of arrest is required for it to exist.
WHAT IS REQUIRED:
1. There be an intention on the part of one of the parties to arrest the other
2. There be an intent on the part of the other to submit, under the belief and
impression, that submission is necessary
Ex. An arrest for a traffic violation is possible, when there is an intent on the part of the
police officer to deprive the motorist of his liberty, or to take the latter into custody.
o But when a motorist is just flagged down, he is not deemed to be under arrest at
the time that he was waiting for the traffic order to write the citation ticket.
REQUISITES FOR THE ISSUANCE OF A WARRANT OF ARREST (SEC 2. ART III, CONSTITUTION)
1. Must be issued upon probable cause
2. Must be made personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce (But see
discussion on Soliven v. Makasiar)
3. Must include a particular description of the place to be searched and the
persons or things to be seized
“… 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.”
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PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT OF ARREST: Such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed by the person sought to be arrested.
• The test for issuing a warrant of arrest is less stringent than that used for
establishing the guilt of the accused
• As long as the evidence shows a prima facie case against the accused, the trial
court has sufficient ground to issue a warrant for his arrest
PERSONAL EXAMINATION BY JUDGE NOT REQUIRED (SOLIVEN v. MAKASIAR)
• The constitutional provision does not mandatorily require the judge to personally
examine the complainant and his witnesses. A hearing is not necessary.
• The judge’s personal examination is not mandatory and indispensable for
determining the aptness of issuing a warrant.
• The judge may opt to personally evaluate the report and supporting documents
submitted by the prosecutor showing the existence of probable cause for
indictment and issue a warrant of arrest
• Or if he finds no probable cause, he may disregard the prosecutor’s report and
require the submission of supporting affidavits of witnesses
UNNECESSARY VIOLENCE NOT ALLOWED
• Underlying rule: Prohibition against the use of violence or unnecessary force in
making an arrest
RIGHTS OF A PERSON ARRESTED (RA 7438)
1. The rights of a person arrested, detained, or under custodial investigation are
spelled out by RA 7438 (An act defining certain rights of person arrested, detained
or under custodial investigation as well as the duties of the arresting, detaining
and investigating officers, and providing penalties for violations thereof)
2. The rights are:
a. The right to be assisted by counsel at all times
b. The right to remain silent
c. The right to be informed of the above rights
d. The right to be visited by the immediate members of his family, by his
counsel, or by any non-governmental organization, national or
international
3. Counsel must be one who is independent and competent
o If such person cannot afford the services of his own counsel, he must be
provided one
4. In the absence of a lawyer, no custodial investigation shall be conducted and the
suspected person can only be detained by the investigating officer in accordance
with the provisions of Article 125
o Any waiver of the provisions of Article 125 shall be:
o in writing, and
o signed by the person arrested, detained or under custodial
investigation
o in the presence of his counsel; otherwise, void.
5. An extrajudicial confession made shall also be in writing and signed by the person,
detained or under custodial investigation in the presence of his counsel
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a. If the counsel is absent:
i. Upon a valid waiver, AND
ii. Must be in the presence of any of the parents, older brothers
and sisters, his spouse, the municipal mayor, the municipal
judge, district school supervisor, or priest or minister of the
gospel as chosen by him
b. Otherwise, such extrajudicial confession shall be inadmissible as
evidence in any proceeding
CUSTODIAL INVESTIGATION
• Begins to operate as soon as the investigation ceases to be a general inquiry into
an unsolved crime and when 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
• RA 7438
o Expanded meaning: It now includes issuing an “invitation”
o This means that even those who voluntarily surrendered before a police
officer must be apprised of their Miranda rights
o The use of the term “invited” in the affidavit of arrest is to be construed as
an authoritative command by the officer for the accused to submit to the
custody of the officer. It is therefore an arrest (Pestilos v. Generoso)
MIRANDA RIGHTS
1. Any person under custodial investigation has the right to remain silent
2. Anything he says can and will be used against him in a court of law
3. He has the right to talk to an attorney before being questioned and to have his
counsel present when being questioned
4. If he cannot afford an attorney, one will be provided before any questioning if he
so desires
When Miranda rights were incorporated into our Constitution, it was modified to include the
statement that any waiver of the right to counsel must be made in writing and in the
presence of counsel.
EFFECT OF ILLEGALITY OF ARREST ON JURISDICTION
• This affects only the jurisdiction of the court over the person of the accused
• This cannot in itself be the basis for acquittal
• It will not negate the validity of the conviction of the accused
• Even if the warrantless arrest of an accused is later proven to be invalid, such fact
is not a sufficient cause to set aside a valid judgment rendered upon a sufficient
complaint after a trial free from error
• Even assuming the accused made a timely objection to their warrantless arrest,
their conviction was proper despite being illegally arrested w/o a warrant.
o The illegality of the warrantless arrest cannot deprive the State of its right
to prosecute the guilty when all other facts on record point to their
culpability
NOTE: An application for or admission to bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant issued
• PROVIDED: That he raised the objection before his plea (Sec. 26, Rule 114)
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WAIVER OF ILLEGALITY OF ARREST
• Any objection, defect or irregularity attending an arrest or the procedure by which
the court acquired jurisdiction must be made before the accused enters his plea
on arraignment
• When one voluntarily submits to the jurisdiction of the court, this cure whatever
defect might have attended his arrest
• When a person failed to make a timely objection to an illegal arrest, only the right
to assail the arrest is waived.
• This does not mean that the right to question the admissibility of the evidence
seized by virtue of the illegal arrest is waived as well
o A waiver of an illegal warrantless arrest doesn’t not mean a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest
PERSONS NOT SUBJECT TO ARREST
• Senator or member of the House of Representatives (Sec. 11, Art. VI, 1987
Constitution) in all offenses punishable by not more than 6 years imprisonment,
while congress is in session
o Does not cover offenses punishable by imprisonment of more than 6 years
and when congress is not in session
• Sovereigns and other chiefs of state, ambassadors, ministers plenipotentiary,
ministers resident, and charge d’affaires are immune from the criminal jurisdiction
of the country of their assignment, and hence immune from arrest.
• Duly accredited ambassadors, public ministers of a foreign country, their duly
registered domestics, subject to the principle of reciprocity
SECTION 3: DUTY OF ARRESTING OFFICER
It shall be the duty of the officer executing the warrant to arrest the accused and deliver
him to the nearest police station or jail without unnecessary delay.
The officer assigned to execute the warrant of arrest has, after the arrest of the accused,
the duty to deliver the person arrested to the nearest police station or jail without
unnecessary delay.
SECTION 4: EXECUTION OF WARRANT
The head of the office to whom the warrant of arrest was delivered for execution shall cause
the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after
the expiration of the period, the officer to whom it was assigned for execution shall make a
report to the judge who issued a warrant. In case of his failure to execute the warrant, he
shall state the reasons therefor.
When warrant is issued by a judge, it is delivered to the proper law enforcement agency for
execution
• The head of the office to whom the warrant was delivered shall cause the warrant
to be executed 10 days from receipt
• Within 10 days after expiration of the period, the officer to whom it was assigned
for execution shall make a report to the judge who issued the warrant.
o In case of his failure to execute the warrant, he shall state the reasons for its
non-execution
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SECTION 5: ARREST WITHOUT WARRANT; WHEN LAWFUL
A peace officer or a private person may, without a warrant, arrest a person:
a. When in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
b. When an offense has just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it;
c. When the person to be arrested is a prisoner who
o has escaped from a penal establishment or place where he is serving
final judgment or is temporarily confined while his case is pending, or
o has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail and shall be proceeded
against in accordance with Section 7 of Rule 112.
GENERAL RULE: A warrant is needed in order to validly effect arrests, searches and
seizures.
EXCEPTION: Warrantless arrest provided for under Section 5, Rule 113. Other grounds
apart from Sec. 5 include:
1. When a person, previously arrested, escapes or is rescued. Any person may
immediately pursue or retake him without a warrant at any time and in any place
within the PH (Section 13, Rule 113)
2. When an accused released on bail attempts to depart from the PH without
permission of the court where the case is pending (Section 23, Rule 114)
WHO CAN MAKE WARRANTLESS ARRESTS:
1. Peace officer
2. Private person (Citizen’s arrest)
REQUISITES OF ARRESTS IN FLAGRANTE DELICTO (5a)
1. The person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime
2. Such overt act is done in the presence or within the view of the arresting officer
NOTES:
1. Mere “suspicion” or “reliable information” are not justifications for a warrantless
arrest. The rule requires the accused to perform some OVERT ACT that would
indicate that he has committed, is actually committing, or is attempting to commit
an offense.
2. In this type of warrantless arrest, the person making the arrest himself witnesses
the crime and, hence, has personal knowledge of the commission of the offense.
3. When a police officer sees the offense, although at a distance or HEARS the
disturbance created, and proceeds at once to the scene thereof, he may effect an
arrest without a warrant.
Cases of valid in flagrante delicto arrest:
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1. An entrapment operation does not require a warrant, as it’s a valid warrantless
arrest and the search is incidental to such arrest. A buy bust operation is justified
because the suspect is arrested in flagrante delicto.
2. Where appellant was apprehended after she exchanged the shabu in her
possession of marked money of the poseur-buyer, in the presence of offices, the
arrest was in flagrante delicto.
3. Accused carried a woven plastic bag which appeared to contain camote tops, but
instead of placing the bag by her side like the usual practice of a traveler, she
placed it on the back seat; added by the fact that the agent felt a plastic bag in
the bottom and the smell of marijuana; there was valid suspicion
4. When officers were faced by an “on the spot” information which required them to
act swiftly; when there is urgency and no sufficient time to obtain a search warrant
5. When officers were aware of the identity of the accused, his planned criminal
enterprise and the vessel he would be taking through an informant, and when
they set up a check point to monitor the same and found the suspects in a jeep
with sacks and tin cans; valid arrest.
6. If accused was arrested for a continuing offense like rebellion (membership in the
NPA), his arrest while he was confined in a hospital and undergoing treatment for
a gunshot wound is valid.
Cases of invalid in flagrante delicto arrest:
1. When accused was arrested while merely talking to a police informant, and there
was no overt act indicative of a felonious enterprise, arrest is not valid.
2. When police officers saw two men suddenly rush out of the house, and chased
the keep that the two fleeing men boarded and arrested them, arrest was not valid
because there was nothing amiss going on in the house.
3. Mere act of darting away when approached by a police officer (PO) should not be
construed against the accused. Flight per se is not synonymous to guilt.
a. Many innocent reasons for flight like fear of speaking to an officer
4. A previous arrest or existing criminal record, even for the same offense will not
suffice to satisfy the exacting requirements provided under this Rule.
5. PO saw accused, while standing on the opposite street, handing over something
to another, at a distance 10m; SC: arrest invalid, implausible to have identified
shabu from that far.
6. Accused was merely descending from the ship holding a bag, like any other
passenger. SC: if officers received information, they could have obtained a
warrant since they had at least 2 days to apply for the same.
7. Reliable information alone, absent any overt 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.
a. When co-accused told officers about their supplier and POs arrested the
supplier when he merely came out of his apartment towards his parked
car where he was immediately frisked and asked to open the
compartment; arrest and search is invalid as there was nothing
suspicious about the behavior of such person
8. There is no crime to be inferred from the fact that the eyes of the person were
moving fast and looking at every person passing by; or by mere looking from side
to side clutching his abdomen in a busy hour in the blaze of the noonday sun.
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REQUISITES OF HOT PURSUIT (5b)
1. An offense has just been committed
2. The person making the arrest has personal knowledge of facts indicating that the
person to be arrested has committed it
This does not require the arresting officer or person to personally witness the commission
of the offense
o In fact, the offense was NOT committed in his presence, although the offense has
just been committed.
NOTES:
1. A warrantless arrest made one year after the offense was allegedly committed, is
an illegal arrest.
a. Other instances of illegal arrest based on cases: Those effected the day
after the commission of the crime; 6 days after; three days after
2. Personal knowledge does not refer to actual knowledge; it is knowledge that a
crime was committed even if it was not committed in the presence of the arresting
officer
a. PO may even rely on information supplied by a witness or a victim of the
crime
b. Personal knowledge must be based on probable cause, which means an
actual belief or reasonable grounds of suspicion
c. The grounds are reasonable when the suspicion that the person to be
arrested is probably guilty of committing the offense is based on actual
facts, i.e., supported by circumstances sufficiently strong to create the
probable cause of guild of the person to be arrested.
d. A reasonable suspicion, therefore, must be founded on probable cause,
coupled with good faith
IN FLAGRANTE DELICTO HOT PURSUIT
The person making the arrest himself The person making the arrest knows for a
witnesses the crime fact that a crime has been committed
Cases:
1. Two robbers divested passengers of a jeepney of their belongings including
a jacket; one the passengers who went with POs, saw one of the robbers
casually walking in the same vicinity and wearing his jacket; valid arrest.
2. The police received a report of a mauling incident and went to the crime
scene. A witness told the police that the accused was the one who killed the
victim. They proceeded to the house of the accused and arrested him 3
hours after the killing. Because of their knowledge of the circumstances of
the death of the victim and report of eyewitness, the officers had personal
knowledge of the facts.
3. Witnesses tagged accused as the culprit and then accused sped off when
he saw POs who had to chase him; valid reasonable suspicion to arrest
4. POs saw the bloodied state of the victim and how the latter identified the
assailant. Assailant when confronted did not deny but have another version
of events; arrest valid.
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SECTION 6: TIME OF MAKING ARREST
An arrest may be made on any day and at any time of the day or night.
SECTION 7: METHOD OF ARREST BY OFFICER BY VIRTUE OF A WARRANT
When making an arrest by virtue of a warrant, the officer shall inform the person to be
arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest,
except when he (1) flees or (2) forcibly resists before the officer has opportunity to so inform
him, or when the (3) giving of such information will imperil the arrest. The officer need not
have the warrant in his possession at the time of the arrest but after the arrest, if the person
arrested so requires, the warrant shall be shown to him as soon as practicable.
METHOD OF ARREST WITH A WARRANT
When making an arrest by virtue of a warrant, the officer shall inform the person to be
arrested of
a. The cause of his arrest
b. The fact that a warrant has been issued for his arrest
The information need not be given when the person to be arrested
a. Flees
b. Forcibly resists
c. The giving of the information will imperil the arrest
The officer need not to have the warrant in his possession at the time of the arrest.
o However, after the arrest, the warrant shall be shown to the person arrested
as soon as practicable, if the person arrested so requires
SECTION 8: METHOD OF ARREST BY OFFICER WITHOUT WARRANT
When making an arrest without a warrant, the officer shall inform the person to be arrested
of his authority and the cause of the arrest, unless the latter is either (1) engaged in the
commission of an offense, is (2) pursued immediately after its commission, has (3)
escaped, (4) flees, or (5) forcibly resists before the officer has opportunity to so inform him,
or (6) when the giving of such information will imperil the arrest.
METHOD OF ARREST WITHOUT A WARRANT
When making an arrest without a warrant, the officer shall inform the person to be arrested
of his
a. Authority
b. The cause of his arrest
This information need not be given if the person to be arrested
a. is engaged in the commission of an offense
b. is in the process of being pursued immediately after its commission
c. escapes or flees
d. forcibly resists before the officer has the opportunity to so inform him
e. when the giving of such information will imperil the arrest
The rules applicable to an arrest with a warrant also apply to an arrest without a warrant,
like:
1. Officer may summon assistance (Sec. 10, Rule 113)
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2. May break into a building or break out of the same (Secs. 11&12, Rule 113) Any member of the Philippine Bar shall, at the request of the person arrested or of another
acting in his behalf, have the right to visit and confer privately with such person in the jail
SECTION 9: METHOD OF ARREST BY PRIVATE PERSON or any other place of custody at any hour of the day or, of the night. Subject to reasonable
When making an arrest, a private person shall inform the person to be arrested of the regulations, a relative of the person arrested can also exercise the same right.
intention to arrest him and the cause of the arrest, unless the latter is either (1) engaged
in the commission of an offense, is (2) pursued immediately after its commission, or has
(3) escaped, (4) flees, or (5) forcibly resists before the person making the arrest has
opportunity to so inform him, or (6) when the giving of such information will imperil the
arrest

When making an arrest without a warrant, the private person shall inform the person to be
arrested of his
a. Intention to arrest him
b. The cause of his arrest

o Same exceptions as Arrest by Officer Without a Warrant

o BUT: right to break into a building or enclosure specifically refers to “officer”
not a private person.

SECTION 10: OFFICER MAY SUMMON ASSISTANCE

An officer making a lawful arrest may orally summon as many persons as he deems
necessary to assist him in effecting the arrest. Every person so summoned by an officer
shall assist him in effecting the arrest when he can render such assistance without
detriment to himself.

The right and duty of an officer to effect an arrest, in proper cases, carries with it the
authority to orally summon as many persons as he deems necessary to assist him in
effecting the arrest.

Every person so summoned by an officer is required to give the assistance requested.

• XPN: He need not to if he cannot do so without detriment to himself
• The duty of the person summoned does not arise when rendering assistance would
cause harm to himself

SECTION 11: RIGHT OF OFFICER TO BREAK INTO BUILDING OR ENCLOSURE

An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as
provided in Section 5, 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.

SECTION 12: RIGHT TO BREAK OUT FROM BUILDING OR ENCLOSURE

Whenever an officer has entered the building or enclosure in accordance with the preceding
section, he may break out therefrom when necessary to liberate himself.

SECTION 13: ARREST AFTER ESCAPE OR RESCUE

If a person lawfully arrested escapes or is rescued, any person may immediately pursue or
retake him without a warrant at any time and in any place within the Philippines

SECTION 14: RIGHT OF ATTORNEY OR RELATIVE TO VISIT PERSON ARRESTED

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CHAPTER 5: RULE 126 (SEARCHES AND SEIZURES) Arrest with a warrant: May be made on Search warrant: Generally served in the
any day and at any time of the day or night daytime, unless there be a direction in the
SECTION 1: SEARCH WARRANT DEFINED warrant that it may be reserved at any
A search warrant is time of the day or night
o an order in writing Issuance of a warrant of arrest: A search warrant: Does not require the
o issued in the name of the People of the Philippines, Presupposes the existence of a pending existence of a criminal case. It may be
o signed by a judge and criminal case that gave rise to the warrant issued prior to the filing of the case.
o directed to a peace officer, commanding him to search for personal property
described therein and bring it before the court. SECTION 2: COURT WHERE APPLICATION FOR SEARCH WARRANT SHALL BE FILED
An application for search warrant shall be filed with the following:
SEARCH WARRANT (a) Any court within whose territorial jurisdiction a crime was committed
• Not a criminal action nor does it represent a commencement of a criminal (b) For compelling reasons stated in the application, any court within the judicial region
prosecution even if it is entitled like a criminal action where the crime was committed if the place of the commission of the crime is
• Not a proceeding against a person but is solely for the discovery and to get known, or any court within the judicial region where the warrant shall be enforced
possession of personal property
• Special and peculiar remedy, drastic in nature and made necessary because of However, if the criminal action has already been filed, the application shall only be made in
public necessity. It resembles John Doe proceedings the court where the criminal action is pending.
• Since it is not a criminal action, any aggrieved party may question an order quashing
the same without need for the conformity of the public prosecutor. WHERE TO FILE AN APPLICATION FOR A SEARCH WARRANT
o The rule that criminal actions shall be prosecuted under the direction and
control of the public prosecutor does not apply. GENERAL RULE: It shall be filed before any court within whose territorial jurisdiction a crime
was committed
RULE IS A PROTECTION AGAINST GOVERNMENTAL INTRUSION
The rule against unreasonable searches and seizures does not extend to acts committed EXCEPTIONS:
by private individuals and entities a. The application may be made before any court within the judicial region where the
• The Constitutional guaranty against unlawful searches and seizures is intended as crime was committed If the place of the commission of the crime is known
a restraint against the Government and its agents tasked with law enforcement b. It may also be filed before any court within the judicial region where the warrant
• Case: inspection of an electric company who conducted routine of several houses shall be enforced
to check on illegal connections cannot be argued to be a violation of constitutional (In both exceptions, filing in such courts requires compelling reasons stated in the
right against unreasonable search and seizure. application. This is of mandatory nature)
c. The application shall be made only in the court where the criminal action is
EXCLUSIONARY RULE: Any evidence obtained in violation of this or the preceding section pending, if the criminal action has already been filed
shall be inadmissible for any purpose in any proceeding
An application for a search warrant is heard ex parte. It is neither a trial nor a part of the
trial.
ARREST SEARCH
o Time is of the essence.
Concerned with the seizure of a person so Concerned with the seizure of personal
he may be made to answer for the property subject of the offense, stolen or
SEARCH WARRANTS INVOLVING HEINOUS CRIME AND OTHERS (AM No. 99-20-09-SC)
commission of an offense. embezzled property, fruits of the offense,
o In cases involving:
or those intended to be used to commit
o heinous crimes,
an offense
o illegal gambling,
It involves the taking of a person into o dangerous drugs and
custody o illegal possession of firearms
Probable cause to arrest: The judge must Probable cause to search: Requires facts o The following are authorized to act on all application for search warrants:
have sufficient facts in his hands that to show that particular things connected o Executive Judge and Vice Executive Judges of the RTCs of Manila and Quezon
would tend to show that a crime has been with a crime are found in a specific City
committed and that a particular person location o filed by PNP, NBI, Presidential Anti-Organized Crime Task Force,
committed it. Reaction Against Crime Task Force

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o Nothing in the law prohibits the above-mentioned bodies to delegate
their ministerial duty of endorsing the applications for search warrants
to their assistant heads.
o The search warrants issued may be served in places OUTSIDE the
territorial jurisdiction of said courts.
o Case: for Dangerous Drugs Law cases, the application for
search warrant may be filed by the NBI in the City of Manila
and the warrant issued may be served outside of Manila
(Angeles, Pampanga herein).
• When judge issues, presumption that the judicial function has been regularly
performed, absent a showing to the contrary
SECTION 3: PERSONAL PROPERTY TO BE SEIZED
A search warrant may be issued for the search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing the offense
SUBJECT: Personal property, not real property.
A search warrant may be issued not only for the search but also for the seizure of the
following:
a. Subject of the offense;
b. Stolen or embezzled and other proceeds, or fruits of the offense; or
c. Used or intended to be used as the means of committing the offense.
GENERAL RULE: Only the personal properties described in the search warrant may be seized
by the authorities
o Case: Warrant authorized the taking of shabu “and paraphernalia” only. By the
principle of ejusdem generis, the generic word will usually be limited to things of
a similar nature with those particularly enumerated. The lady’s wallet, cash,
grinder, camera, etc. were not encompassed by the word paraphernalis as they
bear no relation to the use or manufacture of drugs.
o EXCEPTION: Plain view doctrine
PURPOSE: To limit the things to be taken to those, and only those particularly described in
the search warrant—to leave the officers of the law with no discretion regarding what articles
they should seize
SECTION 4: REQUISITES FOR ISSUING SEARCH WARRANT
A search warrant shall not issue except upon probable cause in connection with one specific
offense 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 things to be seized which may be anywhere in the
Philippines.
REQUISITES ENUMERATED (PJOD):
a. It must be issued upon probable cause
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b. The probable cause must be determined by the judge himself and not by the
applicant or any other person
c. In the determination of probable cause, the judge must examine, under oath or
affirmation, the complainant and such witnesses he may produce
d. The warrant issued must particularly describe the place to be searched and
persons or things to be seized
The absence of any of the requisites will cause its downright nullification.
The requirement to attach records of depositions and/or transcript of the judge’s
examination does not by itself nullify the warrant. The requirement to attach is merely a
procedural rule.
PROBABLE CAUSE IN ISSUING SEARCH WARRANT: The existence of such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed, and that the objects sought in connection with the offense
are in the place to be searched.
• No exact test for determination of PC for search warrants.
• Standard: those of a reasonably prudent man, not the exacting calibrations of a
judge in a trial.
• When judge issues search warrant, there is a presumption that the judicial
function has been regularly performed, absent a showing to the contrary, as long
as there was substantial basis for that determination
• SUBSTANTIAL BASIS means that the questions of the examining judge brought out
such facts and circumstances as would lead a reasonably discreet and prudent
man to believe that an offense has been committed, and the objects in connection
with the offense sought to be seized are in the place sought to be searched.
DESCRIPTION OF SUFFICIENT PARTICULARITY
• It is sufficient if the officer with the warrant can, with reasonable effort, ascertain
and identify the place intended and distinguish it from other places in the
community.
• Any designation or description that points out the place to the exclusion of all
others, and on inquiry leads the officers unerringly to it, satisfies the Constitutional
requirement
• Prior knowledge of the officer as to the place intended in the warrant is relevant
o Especially true where the executing officer is the affiant on whose affidavit
the warrant had been issued.
• Purpose: To limit the things to be seized to those described in the search warrant
and to leave the officers of the law no discretion regarding what articles they shall
seize and so abuses may not be committed
• Required “wherever and whenever it is feasible”; Description need not be in
precise and minute detail
• Valid AS LONG AS it leaves officers with no discretion regarding the articles to be
seized.
• Nowhere is it required that a Search Warrant (SW) must name the person who
occupies the described premises.
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o Where the name of the owner of the premises sought to be searched is
incorrectly inserted, it is not a fatal defect if the legal description of the
premises is otherwise correct
o The law also does not require that the property to be seized should be
owned by the person against whom the SW is directed.
o It is sufficient that the person against whom the warrant is directed has
CONTROL AND POSSESSION of the property sought to be seized.
• Case: caption of SW indicates the address of “Hernan Cortes St., Cebu City” while
the body states “Hernan Cortes St., Mandaue City”; SC: not fatal. It was not shown
that there was a street with the same name in Cebu and vice versa.
JOHN DOE WARRANT
• It is the exception rather than the rule (but still valid)
• It does not name the person subject of the warrant
• The law does not prevent the issue and service of a warrant against a party whose
name is unknown.
o In such case, the best possible description of the person is to be given in
the warrant; it must be sufficient to indicate clearly on whom it is to be
served, by stating his:
o Occupation
o Peculiarities
o Place of residence
o Other circumstances
• Case: search warrant stated that John Doe had gambling apparatus in his
possession in the building occupied by him at No. 124 Calle Arzobispo, Manila. As
this John Doe could be identified by the police as the manager of the club, warrant
is valid.
GENERAL WARRANT: A search or arrest warrant that is not particular as to the person to be
arrested or property to be seized. It is one that allows the seizure of one thing under a
warrant describing another and gives the officer executing the warrant the discretion over
which items to take
• But the SC has been mindful of the difficulty faced by law enforcement officers in
describing the items to be searched, especially when these items are technical in
nature, and when the extent of the illegal operation is largely unknown to them.
• Use of a generic term or a general description is allowed only when a more specific
description of the things to be seized is not available
• As long as the description
o Is as specific as the circumstances will ordinarily allow
o Expresses a conclusion of fact and not of law, by which the peace officers
may be guided in making the search and seizure
o Limits the things to be seized which bear direct relation to the offense for
which the warrant is being issued
Cases of valid warrants:
o the terms "unregistered delivery receipts" and "unregistered purchase and sales
invoices," need not be identified specifically. It is not possible to do so considering
these are unregistered. Taking into consideration the nature of the articles
described, no other more adequate and detailed description could have been
given because of the difficulty in describing the contents of the same
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o "Unlicensed firearms of various calibers and ammunitions for the said firearms";
the Court observed that the law enforcement officers could not have been in the
position to know beforehand the exact caliber or make of the firearms to be
seized.
o The description "an undetermined amount of marijuana or Indian hemp" satisfies
the requirement of particularity in a search warrant. By reason of its character and
the circumstances under which it would be found, said article is illegal.
Cases of general warrants:
o “Books of accounts, financial records, vouchers, journals, correspondence,
receipts, ledgers, portfolios, credit journals, typewriters, and other documents and
papers showing all business transactions”; SC: too broad and general as to
include all business transactions whether legal or illegal.
o “Television sets, video cassette recorders rewinders, tape head cleaners,
accessories, equipment 'and other machines used or intended to be used in the
un- lawful reproduction, sale, rental/lease, distribution of the above-mentioned
video tapes”; SC: inadequate description. The above articles are generally
connected with or related to a legitimate business not necessarily involving piracy.
SECTION 5: EXAMINATION OF COMPLAINANT; RECORD
The judge must, before issuing the warrant, personally examine in the form of searching
questions and answers, in writing and under oath, the complainant and the witnesses he
may produce on facts personally known to them and attach to the record their sworn
statements, together with the affidavits submitted
PROCEDURE: (ESCOR)
1. The examination must be personally conducted by the judge
2. It must be in the form of searching questions and answers
3. The complainant and the witnesses shall be examined on those facts personally
known to them
4. The statements must be in writing and under oath
5. The sworn statements of the complainant and the witnesses, together with the
affidavits submitted, shall be attached to the record
PERSONAL KNOWLEDGE: Absent the element of personal knowledge by the applicant or his
witnesses of the facts upon which the issuance of a search warrant may be justified, the
warrant is not deemed based on probable cause and is a nullity, its issuance being in legal
contemplation, arbitrary.
SEARCHING QUESTIONS: Depend largely on the discretion of the judge; no hard-and-fast-
rule but it must be probing and exhaustive. The judge must not simply rehash the contents
of the affidavits but make his own inquiry.
SECTION 6: ISSUANCE AND FORM OF SEARCH WARRANT
If the judge is satisfied of the existence of facts upon which the application is based or that
there is probable cause to believe that they exist, he shall issue the warrant, which must be
substantially in the form prescribed by those Rules.
SECTION 7: RIGHT TO BREAK DOOR OR WINDOW TO EFFECT SEARCH
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The officer, if refused admittance to the place of directed search after giving notice of his
purpose and authority, may break open any outer or inner door or window of a house or any
part of a house or anything therein to execute the warrant or liberate himself or any person
lawfully aiding him when unlawfully detained therein.
The officer may break open any outer or inner door or window of a house or any part of a
house or anything therein provided the following requisites are complied with:
(a) The officer gives notice of his purpose and authority;
(b) He is refused admittance to the place of directed search despite the notice; and
(c) The purpose of breaking is to execute the warrant or to liberate himself or any
person lawfully aiding him when unlawfully detained therein
SECTION 8: SEARCH OF HOUSE, ROOM OR PREMISES TO BE MADE IN PRESENCE OF TWO
WITNESSES
No search of a house, room or any other premises shall be made except in the presence of
the lawful occupant thereof or any member of his family or in the absence of the latter, two
witnesses of sufficient age and discretion residing in the same locality.
No search may be made except in the presence of:
a. Local occupant thereof
b. Any member of his family
c. In the absence, two witnesses of sufficient age and discretion residing in the same
locality
SECTION 9: TIME OF MAKING SEARCH
The warrant must direct that it be served in the daytime, unless the affidavit asserts that
the property is on the person or in the place ordered to be searched, in which case a
direction may be inserted that it be served at any time of the day or night.
RULE: It allows for the exercise of judicial discretion in fixing the time within which the
warrant may be served, subject to the statutory requirement fixing the maximum time for
the execution of the warrant.
SECTION 10: VALIDITY OF SEARCH WARRANT
A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void.
SECTION 11: RECEIPT FOR THE PROPERTY SEIZED
The officer seizing property under the warrant must give a detailed receipt for the same to
the lawful occupant of the premises in whose presence the search and seizure were made,
or in the absence of such occupant, must, in the presence of at least two witnesses of
sufficient age and discretion residing in the same locality, leave a receipt in the place in
which he found the seized property.
SECTION 12: DELIVERY OF PROPERTY AND INVENTORY THEREOF TO COURT; RETURN AND
PROCEEDINGS THEREON
a. The officer must forthwith deliver the property seized to the judge who issued the
warrant, together with a true inventory thereof duly verified under oath
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b. Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if
the return has been made, and if none, shall summon the person to whom the warrant
was issued and require him to explain why no return was made. If the return has been
made, the judge shall ascertain whether Section 11 of this Rule has been complied
with and shall require that the property seized be delivered to him. The judge shall see
to it that subsection (a) hereof has been complied with.
c. The return on the search warrant shall be filed and kept by the custodian of the logbook
on search warrants who shall enter therein the date of the return, the result and other
actions of the judge.
A violation of this section shall constitute contempt of court.
DUTIES OF THE OFFICER MAKING A SEARCH
a. He must forthwith deliver the property seized to the judge who issued the warrant;
b. He must, together with the delivery of the property, also deliver a true inventory of
the property seized. Such inventory must be duly verified under oath
c. Note: A violation of the above rules shall constitute contempt of court
DUTIES OF THE JUDGE
a. The judge shall ascertain if the return has been made. He shall do so ten days
after issuance of the search warrant.
b. If no return has been made – the judge shall summon the person to whom the
warrant was issued and require him to explain why no return was made
c. If the return has been made – the judge shall ascertain whether Sec. 11 of Rule
126 (giving of a receipt for the property seized) was complied with and shall
require that the property seized be delivered to him.
a. The judge shall also see to it that subsection “a” of this rule (delivery of
the property seized and true inventory) has been complied with
b. When evidence shows that the judge who issued the SW did not require
the officers executing the warrant to make an accurate and complete
inventory is guilty of gross ignorance of the law.
DUTY OF THE CUSTODIAN: The return on the search warrant shall be filed and kept by the
custodian of the logbook on search warrants who shall enter therein the date of the return,
the result and other actions of the judge. Violation of this constitutes contempt.
OBJECTION TO ISSUANCE OR SERVICE OF A WARRANT: Must be made before one enters
his plea; otherwise the objection is deemed waived
SECTION 13: SEARCH INCIDENT TO LAWFUL ARREST
A person lawfully arrested may be searched for dangerous weapons or anything which may
have been used or constitute proof in the commission of an offense without a search
warrant
GENERAL RULE: The procurement of a warrant is required before a law enforcer can validly
search or seize the person, house, papers, or effects of any individual; otherwise, such
search and seizure become “unreasonable.”
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EXCEPTIONS: (APV 2C TEVI) o “When an arrest is made, it is reasonable for the arresting officer to search the
1. Warrantless search incidental to a lawful arrest person arrested in order to remove any weapon that the latter might use in order
2. Seizure of evidence in “plain view” to resist arrest or effect his escape
3. Search of a moving vehicle o it is entirely reasonable for the arresting officer to search for and seize any
4. Consented warrantless search evidence on the arrestee’s person in order to prevent its concealment or
5. Customs search destruction.
6. Stop and frisk or Terry searches o Moreover, it becomes the duty and the right of the arresting officer to conduct a
7. Exigent and emergency circumstances warrantless search not only on the person of the suspect but also within the
8. Search of vessels and aircrafts permissible area within the latters reach
9. Inspection of buildings and other premises for the enforcement of fire, sanitary o A valid arrest allows the seizure of evidence or dangerous weapons either on the
and building regulations person of the one arrested or within the area of his immediate control”

In the exceptional instances where a warrant is not necessary to effect a valid search or
seizure, what constitutes a reasonable or unreasonable search or seizure is purely a judicial
question.
1. SEARCH INCIDENT TO A LAWFUL ARREST: A person lawfully arrested may be searched,
without a search warrant, for (1) dangerous weapons, (2) or anything which may have been
used or constitute proof in the commission of an offense
PURPOSE:
o To protect the arresting officer from being harmed by the person arrested, who
might be armed with a concealed weapon, and
o to prevent the latter from destroying evidence within reach.
Valid exercise of the State’s police power to:
1. Protect law enforcers from the injury that may be inflicted on them by a person
they have lawfully arrested
2. Prevent evidence from being destroyed by the arrestee.
ARREST MUST BE LAWFUL
o For an arrest to be lawful, arrest may either be by virtue of a warrant lawfully
procured or by virtue of a warrantless arrest authorized under the Rules.
o A person illegally arrested cannot be validly searched without a warrant under this
provision
o Case: Where there is no lawful arrest, the drugs seized is rendered inadmissible
in evidence for being the proverbial fruit of the poisonous tree.
o The law requires that there be first a lawful arrest before a search can be made—
the process cannot be reversed.
IMMEDIATE REACH AND CONTROL RULE; ALLOWABLE SCOPE PURSUANT TO THIS
PROVISION (WUP)
a. Dangerous weapons
b. Anything which may have been used in the commission of an offense
c. Anything which constitutes proof in the commission of an offense
SEARCH NOT CONFINED TO SEARCH OF PERSON ONLY
WITHIN THE AREA OF HIS IMMEDIATE CONTROL: The area from within which he might gain
possession of a weapon or destructible evidence
o Cases:
o when the person arrested had his hands tied, a cabinet which is locked
and found in an area different from where he was being detained, could
no longer be considered as part of "an area within his immediate control"
because there was no way for him to take any weapon or to destroy any
evidence that could be used against him.
• if a person gets caught selling marijuana, as in a buy-bust operation, and the police
officers head to his abode to search the house of the accused is unlawful—the
house is beyond his reach and control
2. PLAIN VIEW DOCTRINE: Objects falling in the plain view of an officer who has a right to
be in the position to have that view are subject to seizure and may be presented as evidence
REQUISITES FOR THIS TO APPLY: (PIA)
1. Law enforcement officer in search of the evidence has prior justification for an
intrusion or is in a position which he can view a particular area
2. The discovery of the evidence in plain view is inadvertent
3. It is immediately apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to seizure
REQUIREMENT OF PLAIN VIEW: An object is in plain view if it is plainly exposed to sight
• When it is inside a close package, the object itself is not in plain view; can’t be
seized without a warrant
• XPN: If the package proclaims its contents or if its contents are obvious to an
observer (experienced observer could infer from its appearance that it contains
prohibited article)
REQUIREMENT OF INADVERTENCE
1. The officer must not have known in advance of the location of the evidence
2. The discovery is not anticipated
NOTE: The plain view doctrine does not apply where the police officers did not just
accidentally discover the evidence but actually searched for it

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REQUIREMENT OF BEING IMMEDIATELY APPARENT: The incriminating nature of the
evidence becomes apparent if the officer, at the moment of seizure, had probable cause to
connect it to a crime without the benefit of an unlawful search or seizure
• It requires merely that the seizure be presumptively reasonable assuming that
there is probable cause to associate the property with criminal activity; that a
nexus exists between a viewed object and criminal activity
• Does not require an unduly high degree of certainty
• Regardless if it is evidence of the crime they are investigating or evidence of some
other crime, because it would be needless to require the police to obtain another
warrant.
Under this doctrine, there is no legitimate expectation of privacy and there is no search
within the meaning of the Constitution
NOTES:
• It cannot be made to extend to a general exploratory search from one object to another
until something incriminating at last emerges
• In cases where the search is made pursuant to a duly issued warrant, the Court allows
the seizure of objects, articles or papers not even described in the warrant when they
are in the plain view of the officer.
o But when not described in the warrant, such objects seized are not presumed to
be in plain view.
o The State is required to adduce evidence to prove the confluence of the essential
requirements for the doctrine to apply (PIA)
Cases of valid plain view searches:
o POs lawfully made an intrusion because of the enforcement of gun ban, and in
such course, the policemen saw the gun tucked into the waist of petitioner when
he alighted from such vehicle
o Police who had just tracked down the petitioner, saw the firearms inside the said
vehicle as he opened the door of his car and got off the same
o When a police officer sees a person placing a plastic sachet containing white
crystalline substance into her cigarette case, it was in his plain view
o The arrest was legally made in flagrante delicto. In the course of the arrest, the
police, aside from seeing the arrestee throw away a tooter, also saw various drug
paraphernalia scattered on top of his bed.
Cases of invalid plain view searches:
o Accused as sleeping when he was awakened by the arresting officers who were
heavily armed. They pulled him out of the room, placed him outside the room and
tied his hands. The other police officers ransacked the locked cabinet where they
found the subject firearm and ammunition. With such discovery, the accused was
charged with illegal possession of firearm and ammunition.
o 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
3. SEARCH OF MOVING VEHICLES; CARROLL DOCTRINE: Automobiles, unlike “a store,
dwelling, or other structure,” are readily mobile and “it is not practicable to secure a warrant,
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because the vehicle can be quickly moved out of the locality or jurisdiction in which the
warrant must be sought”
BUT: the search is only limited to routine checks, where examination of a vehicle is limited
to visual inspection.
o When a vehicle is stopped and subject to extensive search, such would be
permissible only if the officers made it upon probable cause, i.e. upon a belief,
reasonably arising out of circumstances known to the seizing officer, that an
automobile or other vehicle contains a[n] item, article or object which by law is
subject to seizure and destruction
Cases:
o There was probable cause in a case where a confidential informant tipped of the
police that the said car was going to deliver shabu at a certain subdivision and the
car was in the place where it would be; and when they saw a gun tucked in
respondent’s waist when the car was flagged down; and when police saw plastic
sachets in the driver’s seat
o The Court held that there was probable cause in the following instances:
1. where the distinctive odor of marijuana emanated from the plastic bag
carried by the accused;
2. where an informer positively identified the accused who was observed to
have been acting suspiciously;
3. where the accused fled when accosted by policemen;
4. where the accused who were riding a jeepney were stopped and searched by
policemen who had earlier received confidential reports that said accused
would transport a large quantity of marijuana; and
5. where the moving vehicle was stopped and searched on the basis of
intelligence information and clandestine reports by a deep penetration agent
or spy
CHECKPOINTS: Not illegal per se. Under exceptional circumstances, as (1) where the
survival of organized government is on the balance, or (2) where the lives and safety of the
people are in grave peril, checkpoints may be allowed and installed by the government.
• When the situation clears and such grave perils are removed, checkpoints will
have absolutely no reason to remain
• Limited to a visual search; hence cannot be regarded as violative of an individual’s
right against unreasonable search
• Routine checks, when conducted in a fixed area, are less intrusive and are
permissible. Although they do intrude, to a certain extent, on motorists' right to
"free passage without interruption," but it cannot be denied that it involves only a
brief detention of travelers during which the vehicle's occupants are required to
answer a brief question or two.
• If vehicles are stopped and extensively searched, it is because of some probable
cause which justifies a reasonable belief of the men at the checkpoints that either
the motorist is a law - offender or the contents of the vehicle are or have been
instruments of some offense
4. CONSTENTED WARRANTLESS SEARCH: When a person gives a law enforcement agent
permission to search in areas which such person has a reasonable expectation of privacy.
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REQUISITES TO CONSTITUTE A WAIVER: (EKI)
1. The right exists
2. The person involved had knowledge, either actual or constructive, of the existence
of such right
3. The person had an actual intention to relinquish the right
The consent must be voluntarily given. It must be unequivocal, specific and intelligently
given, uncontaminated by any duress or coercion.
o Consent cannot be inferred from mere silence.
o The implied acquiescence to the search, if there was any, could not have been
more than mere passive conformity given under intimidating or coercive
circumstances and is, thus, considered no consent at all within the purview of the
constitutional guarantee.
NOTE: It is the State which has the burden of proving, by clear and positive testimony, that
the necessary consent was obtained and that it was freely and voluntarily given.
6. STOP-AND-FRISK; TERRY DOCTRINE:
• Where a police officer observes unusual conduct which leads him reasonably to
conclude in the light of his experience that criminal activity may be afoot and that
the persons with whom he is dealing may be armed and presently dangerous,
when in the course of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in the initial
stages of the encounter serves to dispel his reasonable fear for his own or others’
safety, he is entitled for the protection of himself and others in the area to conduct
a carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.
o Such a search is reasonable, and any weapons seized may properly be introduced
in evidence against the person from whom they were taken.
o Based on Terry v. Ohio: Officer saw two unknown men who later were identified as
Terry and Chilton, and who by their acts appeared to him to be engaged in an
elaborate yet casual reconnaissance of a store. Suspecting them to be armed and
fearing that the three were preparing to rob the store, McFadden approached the
men, identified himself as a police officer and asked them to identify themselves.
When they simply mumbled an answer and did not get a clear and audible
response, he patted down the outer garment of Terry and felt a gun in his pocket
and removed the same. Terry was subsequently convicted for carrying a
concealed weapon.
DUAL PURPOSE:
1. The general interest of effective crime prevention and detection
2. The 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
TWO PARTS:
1. The stop: A valid stop requires that an officer has a reasonable and articulable
belief that criminal activity has happened or is about to happen
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2. The frisk: Made after the stop, and must be done because of a reasonable belief
that the person stopped is in possession of a weapon that will pose a danger to
others (or has contraband). It must be a mere pat down outside the persons
garment and not reasonably intrusive
THE TEST: of the conduct of an officer was not the existence of probable cause because no
full arrest is made. But It cannot be mere suspicion; it has to be based on a genuine reason,
and in the 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.
The search should not be broader than is necessary to find weapons in the person briefly
stopped.
OPERATION; HOW DONE
a) Act of a police officer to stop a citizen on the street
a. He must properly introduce himself
b) Interrogate him
a. Make initial inquiries
c) Pat him for weapons or contraband
Cases:
o POs were on a surveillance operation, when POl Cruz saw petitioner placing a
plastic sachet containing white crystalline substance into her cigarette case. That
petitioner reacted by attempting to flee after he introduced himself as a police
officer and inquired about the contents of the plastic sachet all the more pricked
his curiosity; SC: valid arrest, here the SC elucidates how a stop and frisk is done
as stated above.
o PO received a text message from an informer that the accused would be
transporting marijuana. He ordered the setting up of a checkpoint. In the
checkpoint, the driver of the jeepney signaled to the officer that he had 2
passengers transporting marijuana. The accused, one of the persons pointed to,
was asked to open his bag which revealed bricks of marijuana. SC: no genuine
reason. The officer merely adopted the suspicion of another person, the driver.
The Court observed that there was nothing suspicious, moreover, criminal, about
riding a jeepney or carrying a bag.
CANINE/DOG SNIFF TEST
• The government’s use of trained police dogs to investigate the home and its
surroundings is a “search” within the meaning of the Fourth Amendment
o A police officer not armed with a warrant may approach a home and knock,
precisely because that is "no more than any private citizen might do." But
introducing a trained police dog to explore the area around the home in
hopes of discovering incriminating evidence is something else.
• However, a sniff by a police dog specially trained to detect the presence of
narcotics in an airport is not a “search” under the meaning of the Fourth
Amendment
o The sniff of a dog is sui generis, intended only to reveal the presence or
absence of narcotics; a warrant is generally not required
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JUDGE BOOMSRI

o Sniff is not an intrusion on a person’s reasonable expectation of privacy
because it does not require the opening of luggage
o BUT: if the length of time the agents possessed the luggage was too great,
like 90 minutes, before the dog sniff was conducted, seizure is
unreasonable.
• A warrantless dog sniff of a vehicle is permissible at routine lawful traffic stops
where the stop is not reasonably prolonged, as where it only lasted 10 minutes.
THERMAL IMAGING DEVICE
• Where the government uses a device that is not in general public use, to explore
details of a private home that would previously have been unknowable without
physical intrusion, the surveillance is a Fourth Amendment “search”
ILLEGALITY OF THE A SEARCH AND SEIZURE:
1. Failure to obtain a warrant when required
2. Failure to comply with the procedures for obtaining a warrant and execution
Such failure will result in the application of the exclusionary rule.
EFFECTS OF ILLEGAL SEARCH AND SEIZURE
o FRUIT OF THE POISONOUS TREE DOCTRINE: If the evidence is obtained through
an unlawful search, the seized item is inadmissible in evidence (See Sec. 3(2) of
the Bill of Rights)
• This is the most important effect of an illegal search and seizure
• Another effect is the civil, criminal, or administrative charges against the office
responsible for the violation.
• QUASHAL: A search warrant illegally obtained or secured, or which is issued in
violation of the Constitution or the Rules may be quashed through the proper
motion, as in a motion to quash the search warrant.
• MOTION TO SUPPRESS EVIDENCE: When evidence is also illegally obtained
CIVIL DAMAGES
• The proceedings under Rule 126 do not provide for the filing of counterclaims and
damages. However, the aggrieved have the right to seek damages by a separate
civil action
• INDEPENDENT CIVIL LIABILITY: for violation of a person’s right to be secure in his
person, house, papers, and effects against unreasonable searches and seizures
under Art. 32 (9) of the Civil Code.
• Separate from criminal liability
CRIMINAL LIABILITY
• Violation of domicile (Art. 128)
• Search warrant maliciously obtained and abuse in the service of those legally
obtained (Art. 129)
• Searching domicile without witnesses (Art. 130)
SECTION 14: MOTION TO QUASH A SEARCH WARRANT OR TO SUPPRESS EVIDENCE; WHERE
TO FILE
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A motion to quash a search warrant and/or to suppress evidence obtained thereby may be
filed in and acted upon only by the court where the action has been instituted. If no criminal
action has been instituted, the motion may be filed in and resolved by the court that issued
the search warrant. However, if such 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.
WHERE TO FILE A MOTION TO QUASH A SEARCH WARRANT OR TO SUPPRESS EVIDENCE:
• If a criminal action was instituted: May be filed and acted upon only by the court
where the action has been instituted
• If no criminal action has been instituted: The motion may be filed in and resolved
by the court that issued the search warrant
o If such 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
WHO MAY ASSAIL THE ISSUANCE OF A SEARCH WARRANT
• Only the party/ies whose rights have been impaired
• This is purely personal; cannot be availed of by third persons
• Ex. Manager is a real party in interest to seek quashal of SW for the reason that
the SW was directed against the premises over which he had control and
supervision.
• Case: A corporation does not have the exclusive right to question the seizure of
items belonging to it. Its manager has authority as well despite distinct
personalities. Unlike natural persons, corps. may perform physical actions only
through properly delegated individuals: officers and/or agents
WHEN ORDER QUASHING A SEARCH WARRANT CAN BE PROPER SUBJECT OF AN APPEAL
• Where search warrant is issued as an incident in a pending criminal case: Quashal
is merely interlocutory
o There is something more to be done, i.e, determine the guilt of the accused
• Where search warrant is applied for and issued in anticipation of a criminal case
yet to be filed: quashal is final.
o The order quashing the warrant (and denial of MR) ends the judicial process
51
JUDGE BOOMSRI

CHAPTER 6: RULE 114 (BAIL)
SECTION 1: BAIL DEFINED
Bail is the security given for the release of a person in custody of the law, furnished by him
or a bondsman, to guarantee his appearance before any court as required under the
conditions hereinafter specified. Bail may be given in the form of corporate surety, property
bond, cash deposit, or recognizance.
DEFINITION OF BAIL:
o The security given for the release of a person in custody of the law,
o Furnished by him or a bondsman,
o To guarantee his appearance before any court as required under the
conditions hereinafter specified.
PURPOSE OF BAIL: To guarantee the appearance of the accused at the trial (actually a
condition which will be further discussed)
o Not intended to cover the civil liability of the accused in the same criminal
case
o But the money deposited may be applied to the payment of fines
and costs, while the excess, if any, shall be returned to the accused
to whoever made the deposit.
o Question of bail: an aspect of criminal action, preventing the accused from
eluding punishment in the event of conviction
FORMS OF BAIL: (CP CR)
1. CORPORATE SURETY – Furnished by a corporation. Any domestic or foreign
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 officer of the
corporation (Sec. 10, Rule 114)
2. PROPERTY BOND – An undertaking constituted as lien on the real property given
as a security for the amount of bail (Sec. 11, Rule 114)
3. CASH DEPOSIT – Accused or any person acting in his behalf may deposit in cash
with the nearest collector of internal revenue or provincial, city, or municipal
treasurer or the clerk of court where the case is pending (Sec. 14, Rule 114)
4. RECOGNIZANCE – An 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 (Sec. 15, Rule 114)
Note: deposit must be made with the persons enumerated in the rule. A judge is not one of
those authorized; nor should cash be kept in the judge’s office, much less in his own
residence.
THE RIGHT TO BAIL IS A CONSTITUTIONAL RIGHT
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 (Sec. 13, Article 3, 1987 Constitution)
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The right to bail springs from the presumption of innocence accorded every accused since,
after the trial, he would be entitled to acquittal unless his guilt be established beyond
reasonable doubt.
o Presumption of innocence is rooted in the guarantee of due process
Bail is a balancing of interests between:
o Interest of anyone charged (innocent until proven guilty)
o Interest of the State and the public
FUNDAMENTAL TENETS ON BAIL IN THE CONSTITUTION:
1. All persons charged, before their conviction for a criminal offense, shall be entitled
to bail.
2. The suspension of the privilege of the writ of habeas corpus does not impair the
right to bail.
3. Excessive bail is not to be required.
GENERAL RULE: A person shall, before conviction, be accorded the right to bail,
UNLESS: he is charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, and the evidence of his guilt is strong.
o The grant or denial of bail to a person charged with an offense punishable by at
least reclusion perpetua or life imprisonment is made dependent on whether or
not the evidence of guilt is strong.
o Example of punishable by RP: Rape or coup d’etat (no distinction is made as the
political complexion of the criminal)
The amount of bail should be high enough to assure the presence of the accused when so
required, but it should be not be higher than is reasonably calculated to fulfill this purpose
o Where the right to bail exists, it should not be rendered nugatory by requiring
a sum that is excessive; otherwise the right to bail becomes meaningless
BAIL IN THE MILITARY: Not available, as an exception to the general rule from the Bill of
Rights
o Since right to bail does not exist, their right to speedy trial is given more
emphasis
o Does not violate equal protection because not similarly situated with citizens
BAIL IN EXTRADITION PROCEEDINGS
GOVERNMENT OF THE USA v. PURGANAN
o The use of the word “conviction” suggests that bail applies only when a
person has been arrested and detained for violation of Philippine criminal
laws. Does not apply to extradition proceedings because extradition courts
do not render judgments of conviction or acquittal
o General Rule: The constitutional provision on bail will not apply to a case like
extradition, where the presumption of innocence is not an issue
o Extradition proceedings are sui generis. Since it is not a criminal
proceeding, it will not call into operation all the rights of an accused
under the Bill of Rights and does not involve a determination of guilt
or innocence
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JUDGE BOOMSRI

o BUT bail may be granted as an EXCEPTION, only upon clear and convincing
showing that:
o Once granted bail, the applicant will not be a flight risk or a danger to
the community
o There exist special, humanitarian and compelling circumstances
HONGKONG v. OLALIA, JR. (MORE CONTROLLING)
o Examined Gov’t of USA v. Purganan
o Viewed the issue in the light of the modern trend in international law placing
primacy on the worth of the individual person and sanctity of human rights
o Respondents in administrative proceedings such as deportation and
quarantine, have likewise been detained
o To limit bail to criminal proceedings would be to close our [the Court’s] eyes
to jurisprudential history
o Noting that bail had in the past been granted in deportation proceedings, the
Court reasoned that if bail can be granted in deportation cases, it sees no
justification why it should not also be allowed in extradition cases.
o Likewise, considering that the Universal Declaration of Human Rights applies
to deportation cases, there is no reason why it cannot be invoked in
extradition cases. After all, both are administrative proceedings where the
innocence or guilt of the person detained is not in issue.
WHO FURNISHES THE BAIL:
o Applicant himself or
o Bondsman
o Natural or juridical person
Q: To whom is bail applicable?
A: The accused who is granted such right
Q: What is the precondition for one to have a right to bail?
A: Applicant for bail must be in custody of the law
Q: Diff between bail and bondsman?
A: Bail is the bond itself. Bondsman is the person providing for the bail.
APPLICANT FOR BAIL MUST BE IN CUSTODY
o Bail cannot be availed of by someone outside the custody of the law
o A free man, therefore, is not entitled to bail
o As bail is intended to obtain or secure one’s provisional liberty, the same cannot
be posted before custody over him is acquired by judicial authorities, either by his
lawful arrest or voluntary surrender
o An application for admission to bail by one who is at large is premature
o Fugitive cannot apply for bail unless he gives himself up
RATIONALE: To discourage and prevent the practice where the accused could just send
another instead to post bail, without recognizing the jurisdiction of the court by his personal
appearance
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Note: Remember the discussion on custody of the law vs. jurisdiction of the court
CUSTODY OF THE LAW
o Required before the court can act on an application for bail
o Not required for the adjudication of other reliefs sought
o Signifies restraint on the person
o It includes but is not limited to detention
o XPN: An accused who is confined in a hospital may be deemed to be in custody
of the law if he clearly communicates his submission to the court while confined
in a hospital (Defensor-Santiago v. Vasquez)
o XPN: Custody not needed for witnesses
The mere application for bail constitutes a waiver of the defense of lack of jurisdiction over
the person of the accused
o While the mere application for bail constitutes submission to the jurisdiction of
the court, the grant of bail requires not mere jurisdiction over the person but
custody over his person.
o Case: SB authorized petition to post a cash bail bond for her provisional
liberty without need of her personal appearance in view of her physical
incapacity and as a matter of humane consideration, as he just stained
PIs in a major vehicular mishap.
BAIL TO GUARANTEE APPEARANCE OF WITNESSES
§ Bail does not only apply to a person who has transgressed the law or is perceived
to have done so. It may likewise apply to a material witness.
§ Also, while the rule is that bail does not apply to a person who is not in custody of
the law, bail to secure the appearance of a material witness does not require prior
custody of the law.
§ Witness may be ordered to post bail even if he is not under detention
§ When allowed:
o "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." If he
refuses to post bail, the court shall commit him to prison until he
complies or is legally discharged after his testimony has been taken
(Sec. 14, Rule 119)
o The court may require the witnesses to give bail for their appearance at
the trial when the court believes there should be substitution of criminal
information
§ “If it appears at any time before judgment that a mistake has been
made in charging the proper offense, the court shall dismiss the
original complaint or information upon the filing of a new one charging
the proper offense as long as the accused is not placed in double
jeopardy. The court may require the witnesses to give bail for their
appearance at the trial” (Sec. 14, Rule 110)
SECTION 2: CONDITIONS OF BAIL; REQUIREMENTS
All kinds of bail are subject to the following conditions:
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JUDGE BOOMSRI

a. 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 Regional
Trial Court, irrespective of whether the case was originally filed in or appealed to it;
b. The accused shall appear before the proper court whenever required by the court or
these Rules;
c. The failure of the accused to appear at the trial without justification and despite due
notice shall be deemed a waiver of his right to be present thereat. In such case, the
trial may proceed in absentia; and
d. The bondsman shall surrender the accused to the court for execution of the final
judgment.
The failure of the accused to appear at the trial without justification despite due notice shall
be deemed a waiver of his right to be present and the trial may proceed in absentia
DURATION OF THE BAIL
o It shall be effective upon approval and unless cancelled, shall remain in force at
all stages of the case until promulgation of judgment of the RTC, irrespective of
whether the case was originally filed in or appealed to it
o The bail bond posted can only be used during the 15-day period to appeal and not
during the entire period of appeal
o This is consistent with Sec. 2(a) of Rule 114 which provides that the bail "shall be
effective ... until the promulgation of the judgment of the Regional Trial Court."
o This rule is a departure from the old rules which provided that the bail shall be
effective and remain in force at all stages of the case until its full determination
EFFECTS OF FAILURE TO APPEAR AT TRIAL
1. The failure of the accused to appear at the trial without justification despite due
notice shall be deemed a waiver of his right to be present and the trial may
proceed in absentia
2. Bondsman may arrest the accused for the purpose of surrendering him. The
bondsman may also cause the accused to be arrested by a police officer or any
other person of suitable age and discretion upon written authority endorsed on a
certified copy of the undertaking
Q: Is it enough to post bail?
A: The court must first APPROVE said bail (XPN: if it is a bailable by right)
Tip: Make client post cash bail bond instead of all others, because then you can get it back.
Q: When surety bond expires (non-renewal), does that mean accused can be re-arrested?
A: If you are the lawyer of the accused, you have to make sure bond is always renewed, and
bondsman is recognized or accredited. The prosecution on the other hand can file a motion
to have accused arrested on the ground that the bond is no longer valid!
Q: Promulgation… does it mean decision becomes final?
A: No, does not need for decision to become final
SECTION 3: NO RELEASE OR TRANSFER EXCEPT ON COURT ORDER OR BAIL
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No person under detention by legal process shall be released or transferred except upon
order of the court or when he is admitted to bail.
GENERAL RULE: No person under detention by legal process shall be released or
transferred
EXCEPTION: Upon (1) order of the court or (2) when he is admitted to bail
SECTION 4: BAIL, A MATTER OF RIGHT; EXCEPTION
All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties,
or released on recognizance as prescribed by law or this Rule
a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and
b) before conviction by the Regional Trial court of an offense not punishable by
death, reclusion perpetua, or life imprisonment.
GENERAL RULE: All persons in custody shall be admitted to bail as a matter of right
It is a matter of right in the following situations:
1. Before conviction by the MeTC, MTC, MTCC or MCTC
2. After conviction by the courts mentioned
3. Before conviction by the RTC of an offense not punishable by death, reclusion
perpetua, or life imprisonment
Examples:
• A person accused of homicide is entitled to bail as a matter of right before his
conviction since the penalty for the offense under the RPC is reclusion temporal.
If he is convicted, his admission to bail becomes, however, discretionary on the
court.
• A person accused of parricide or murder, shall not be entitled to bail when
evidence of guilt is strong. Said offenses are punishable by reclusion perpetua.
REMEDY WHEN BAIL IS DENIED
1. Certiorari – If the trial court committed grave abuse; remedy to annul the order of
the court denying petition for bail
2. Mandamus – Compel the grant of bail which is a matter of right—when bail is a
matter of right, the court is left with no discretion but to grant the same
When bail is a matter of right, it cannot be denied.
§ The probability that the accused will not escape or appear in the trial is not a
ground for denial to the right of bail
§ It is however a reason for the court to increase the bail bond to assure his
appearance
o However, remember, bail cannot be excessive
When bail is a matter of right, the accused need only post bail, and not apply for bail
SECTION 5: BAIL, WHEN DISCRETIONARY
Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua, or life imprisonment, admission to bail is discretionary. The application for bail
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JUDGE BOOMSRI

may be filed and acted upon by the trial court despite the filing of a notice of appeal,
provided it has not transmitted the original record to the appellate court. However, if the
decision of the trial court 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.
Should the court grant the application, the accused may be allowed to continue on
provisional liberty during the pendency of the appeal under the same bail subject to the
consent of the bondsman.
(Note this applies only if TC already imposed a penalty) If the penalty imposed by the trial
court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail
shall be cancelled upon a showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded
sentence, or violated the conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or
conditional pardon;
(d) That the circumstances of his case indicate the probability of flight if released
on bail; or
(e) That there is undue risk that he may commit another crime during the
pendency of the appeal.
The appellate court may, motu proprio or on motion of any party, review the resolution of
the Regional Trial Court after notice to the adverse party in either case.
WHEN BAIL IS A MATTER OF DISCRETION
1. When the accused has been convicted in the RTC of an offense not punishable by
death, reclusion perpetua or life imprisonment
o Because if penalty imposed is D, RP, LP, bail should be DENIED because his
guilt is not just strong, but proved beyond reasonable doubt.
2. When the accused has been charged with an offense which is punishable by
death, reclusion perpetua or life imprisonment (Note: not in Riano, I added this
bullet)
o If evidence of guilt is strong: DENIED.
o If evidence of guilt is not strong: GRANTED.
o Case: It is a misconception that when an accused is charged with the crime
of murder, he is not entitled to bail at all or that the crime of murder is non-
bailable. The grant of bail to an accused charged with an offense that carries
with it the penalty of reclusion perpetua is discretionary on the part of the
trial court.
The discretion of the court may be exercised only after the hearing called to ascertain the
degree of guilt of the accused for the purpose of whether or not he should be granted
provisional liberty. This hearing is indispensable and may be summary or otherwise
o A hearing must be conducted whether or not the prosecution refuses to
present evidence
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o The prosecutor must be notified; this notice of hearing applies in all
cases whether bail is a matter of right or a matter of discretion
Boomsri notes:
• When Bail is a matter of discretion
1. After conviction by the RTC for crimes punishable by 6 years and 1 day at least
but not punishable by RP or LP.
2. If your charge is for a non-bailable offense but later on after trial, you were
convicted for a bailable offense.
§ But you apply for the appellate court. Because obviously, you will appeal.
§ Ex. Charge was murder (RP) so non-bailable, but after trial, homicide only for
homcide (RT, bailable).
WHERE TO FILE AFTER CONVICTION BY RTC (during appeal)
o The application may be filed and acted upon by the trial court even if a notice
of appeal has already been filed provided that the trial court has not yet
transmitted the original record to the appellate court
o If the original record has already been transmitted, then the application shall
be filed with the said appellate court
o 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
If the application is granted, the accused may be allowed to continue on provisional liberty
during the pendency of the appeal under the same bail. This rule is however subject to the
consent of the bondsman (because their initial undertaking is only effective “until
promulgation of judgment of the RTC”)
WHEN APPLICATION FOR BAIL AFTER CONVICTION BY THE RTC SHALL BE DENIED
1. If the penalty imposed is death, reclusion perpetua or life imprisonment, bail
should be denied since it indicates strong evidence of guilty based on proof
beyond reasonable doubt
2. Even if the penalty 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 circumstances: (REPFA)
o He is a recidivist, quasi-recidivist, habitual delinquent, or has committed
the crime aggravated by the circumstance of reiteration
o He has previously escaped from legal confinement, evaded sentence, or
violated the conditions of his bail without valid justification
o He committed the offense while under probation, parole, or conditional
pardon
o The circumstances of his case indicate the probability of flight if released
on bail
o There is undue risk that he may commit another crime during the
pendency of the appeal.
The court is not authorized to cancel the bail ex parte. The rule requires “notice to the
accused.”
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JUDGE BOOMSRI

BAIL PENDING APPEAL WHERE PENALTY IMPOSED EXCEEDS SIX YEARS
o The discretionary nature of the grant of bail pending appeal does not mean The grant or denial of bail to a person charged with an offense punishable by at least
that bail should be automatically granted absent any of the circumstances reclusion perpertua or life imprisonment is made dependent on whether or not the evidence
mentioned in Section 5 of guilt is strong.
o The third paragraph applies to two scenarios where the penalty imposed in
the appellant applying for bail is imprisonment exceeding six (6) years The court is ministerially bound to decide which circumstances and factors are present
which would show evidence of guilt or presumption of guilt.
1. First scenario: Deals with circumstances enumerated in the said paragraph not being
present CONVICTION BAIL
o Bail is a matter of discretion here. It is not automatically granted. Quantum of evidence necessary: Proof Quantum of evidence necessary: Strong
o An application for bail pending appeal may be denied even if the bail-negating beyond reasonable doubt
circumstances in Sec. 5 are absent
2. Second scenario: Contemplates the existence of at least one of the circumstances If the accused had been sentenced to reclusion perpetua, the proper action of a judge is to
o The appellate court exercises a more stringent discretion, to carefully cancel the bail instead of increasing it.
ascertain whether any of the enumerated circumstances in fact exist
o If it so determined that any of them exist, the court has no other option but SECTION 8: BURDEN OF PROOF IN BAIL APPLICATION
to DENY or REVOKE the bail pending appeal. At the hearing of an application for bail filed by a person who is in custody for the
commission of an offense punishable by death, reclusion perpetua, or life imprisonment,
SECTION 6: CAPITAL OFFENSE DEFINED the prosecution has the burden of showing that evidence of guilt is strong. The evidence
A capital offense is an offense which, under the law existing at the time of its commission presented during the bail hearing shall be considered automatically reproduced at the trial
AND of the application for admission to bail, may be punished with death. but, upon motion of either party, the court may recall any witness for additional examination
unless the latter is dead, outside the Philippines, or otherwise unable to testify.
The capital nature of an offense is determined by the penalty prescribed by law and not the
penalty actually imposed BURDEN OF PROOF IN BAIL APPLICATION
o A hearing of the application for bail is to be conducted when a person is in
RA 9346 custody for the commission of an offense punishable by death, reclusion
In lieu of the death penalty, the following shall be imposed: perpetua, or life imprisonment.
o The penalty of reclusion perpetua when the law violated makes use of the o In the hearing, the prosecution has the burden of showing that the evidence
nomenclature of the penalties of the RPC of guilt is strong
o The penalty of life imprisonment when the law violated does not make use of o Aside from this, the hearing shall be summary in nature (A.M. No. 12-11-2-
such nomenclature SC, effective 2014)
o A hearing shall be conducted by the court to determine the existence of
EFFECT OF RA 9346 ON THE GRADUATION OF PENALTIES strong evidence or lack of it against the accused, to enable the judge to make
o The debarring of the death penalty did not correspondingly declassify those an intelligent assessment of the evidence presented by the parties
crimes previously catalogued as “heinous” o Bail cannot be allowed to a person charged with a capital offense or the
o The amendatory effects do not extend to the definition or above-mentioned offenses without a hearing upon notice to the prosecution
classification of crimes. The recognition by law that such crimes by o Case: Even when there is no petition for bail, in a case like the one before the
their abhorrent nature, constitute a special category themselves. trial court, a hearing should still be held. Also, the fact that the public
o The penalty of “death” shall no longer form part of the equation in the prosecutor recommended bail for the accused did not warrant dispensing
graduation of penalties with the hearing.
o e.g. Attempted rape shall be reckoned not from two degrees lower than
death but two degrees lower than reclusion perpetua TWO HEARINGS DISTINGUISHED
HEARING TO DETERMINE PROBABLE HEARING FOR BAIL
CAUSE
SECTION 7: CAPITAL OFFENSE OR AN OFFENSE PUNISHABLE BY RECLUSION PERPETUA, Trial court ascertains whether or not there A hearing to determine whether the
NOT BAILABLE is sufficient ground to engender a well- evidence of guilt is weak or not. If it is, bail
No person charged with a capital offense, or an offense punishable by reclusion perpetua founded belief that a crime has been may be granted. If it is not, bail will be
or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless committed and that the accused is denied.
of the state of the criminal prosecution. probably guilty of the crime

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Takes place prior to all proceedings, so It is only after the hearing to determine
that if the court is not satisfied with the probable cause that the court can Q: If prosecution wants to examine witness more thoroughly, what are the options?
existence of probable cause, it may either entertain a petition for bail. Judge should A: Witnesses can be required to go to court, and be examined by prosecution
dismiss the case or deny the issuance of not treat the previous hearing for
a warrant of arrest probable cause as the hearing for bail. PROCEDURE FOR PETITION OF BAIL
Lest, denial of due process of the ACCORDING TO REVISED GUIDELINES FOR CONTINUOUS TRIAL
prosecution.
Petition for Bail
DUTY OF A THE JUDGE IN A PETITION FOR BAIL IN OFFENSES PUNISHABLE BY RECLUSION • Petition for bail filed after the filing of the information shall be set for summary
PERPETUA, LIFE IMPRISONMENT OR DEATH (NARCISO v. SANTA ROMANA-CRUZ) – this was hearing after arraignment and pre-trial. Testimony of a witness in petition for bail
asked in class! may be in the form allowed by subheading III, item no. 11, par. b (Form of
a. Notify the prosecutor of the hearing of the application for bail or require him to Testimony) of the Revised Guidelines, provided that the demeanor of the witness
submit his recommendation is not essential in determining his/her credibility.
b. Conduct a hearing of the application for bail regardless of whether or not the • Petition for bail shall be heard and resolved within a non-extendible period of thirty
prosecution refuses to present evidence to show that the guilt of the accused is (30) calendar days from date of the first hearing, except in drug cases which shall
strong for the purpose of enabling the court to exercise its sound discretion be heard and resolved within twenty (20) calendar days, without need of oral
c. Decide whether the evidence of guilt of the accused is strong based on the argument and submission of memoranda, consistent with the summary nature of
summary of evidence of the prosecution the proceedings.
d. If the guilt of the accused is not strong, discharge the accused upon the approval • Motion for reconsideration on the resolution of petition for bail shall be resolved
of the bail bond. Otherwise, the petition should be denied within a non-extendible period of ten (10) calendar days from date of submission
e. Within 48 hours after the hearing, the court shall issue an order containing a brief of the motion.
summary of the evidence adduced before it, followed by its conclusion of whether
or not the evidence of guilt is strong (AM No. 12-11-2-SC, effective May 2014) Evidence in petition for Bail
• The resolution of petition for bail shall be based solely on the evidence presented
Evidence presented in the bail hearing are automatically reproduced at the trial during the bail proceedings by the prosecution. The prosecution shall present only
o Any witness may, upon motion of either party, be recalled by the court for pieces of evidence that are essential in establishing that the evidence of guilt is
additional examination strong. The accused need not present evidence to contradict or rebut the
o XPN: Such witness is dead, outside the Philippines or otherwise unable to prosecution's evidence.
testify
Non-suspension of the presentation of evidence
Boomsri Notes: • The court shall not suspend the presentation of the evidence in chief while
o If the accused fails to attend the hearing: awaiting resolution of the petition for bail or the motion for reconsideration.
o Upon motion, the bail will be forfeited
o The case will be archived if warrant cannot be served Flowcharts in the Revised Guidelines:
o Issue a bench warrant A. Regular Cases
Q: Can judge rely on evidence presented (affidavits, etc) without a hearing?
A: No. The hearing is mandatory!

Q: Before hearing can be conducted, what is the necessary precondition?

A: Accused must file application for bail, judge must advise prosecutor

Q: What if evidence of guilt is not strong, but during hearing finds evidence that accused is
a flight risk? What should judge do?
A: Judge should instead of denying bail, increase the amount of bail

Q: What does ‘summary in nature’ mean?

A: Does not go into merits of the case, only task of judge here is to determine whether guilt
of the accused is strong or not

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B. Drug Cases
SECTION 9: AMOUNT OF BAIL; GUIDELINES
The judge who issued the warrant or granted the application shall fix a reasonable amount
of bail considering primarily, but not limited to, the following factors:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required.
GUIDELINES
o Basic rule: Excessive bail shall not be required
o The amount should be high enough to assure the presence of the accused
when such is required but no higher than reasonably calculated to fulfill the
purpose
o Another principle to consider is the good of the public as well as the accused
o The inability of the accused to secure bail in a certain amount is not solely to
be considered and this fact does not by itself make bail excessive
o If the accused does not have the financial ability to post the amount that
the court initially fixed, he may move for its reduction, submitting for that
purpose such documents or affidavits as may warrant
o The principal factor to consider is the probability of the appearance of the
accused, or of his flight to avoid punishment
o The order fixing the amount of bail is not appealable
FACTORS TO CONSIDER (FNPC AWP2F2)
o Financial ability of the accused to give bail
o Nature and circumstances of the offense
o Penalty for the offense charged
o Character and reputation of the accused
o Age and health of the accused
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o Weight of evidence against the accused
o Probability of the accused appearing at the trial
o Pendency of other cases where the accused is on bail
o Forfeiture of other bail
o The fact that the accused was a fugitive from justice when arrested
SECTION 10: CORPORATE SURETY
Any domestic or foreign corporation, licensed as a surety in accordance with law and
currently authorized to act as such, may provide bail by a bond subscribed jointly by the
accused and an officer of the corporation duly authorized by its board of directors.
Example: Prudential Life
SECTION 11: PROPERTY BOND; HOW POSTED
A property bond is an undertaking constituted as lien on the real property given as security
for the amount of the bail. Within ten (10) days after the approval of the bond, the accused
shall cause
• the annotation of the lien on the certificate of title on file with the Registry of
Deeds if the land is registered,
• or if unregistered, in the Registration Book on the space provided therefore, in the
Registry of Deeds for the province or city where the land lies, and
• on the corresponding tax declaration in the office of the provincial, city and
municipal assessor concerned.
Within the same period, the accused shall submit to the court his compliance and his failure
to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest
and detention.
• Property can be owned by another person (not accused)
• Property can be subjected to another bond provided the value of the subsequent
lien/s amount to not more than the amount of the property
• More than one property can be used as a property bond so long as value covers
the amount
SECTION 12: QUALIFICATIONS OF SURETIES IN PROPERTY BOND
The qualifications of sureties in a property bond shall be as follows:
(a) Each must be a resident owner of real estate within the Philippines;
(b) Where there is only one surety, his real estate must be worth at least the amount of
undertaking;
(c) If there are two or more sureties, each may justify in an amount less than that
expressed in the undertaking but the aggregate of the justified sums must be
equivalent to the whole amount of the bail demanded.
In all cases, every surety must be worth the amount specified in his own undertaking over
and above all just debts, obligations and properties exempt from execution.
QUALIFICATIONS:
o Resident owner of real estate within the Philippines
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o Where there is only one surety, his real estate must be worth at least the
amount of undertaking
o Where there are two or more sureties, each may justify in an amount less
than that expressed in the undertaking but the aggregate of the justified
sums must be equivalent to the whole amount of the bail demanded
Q: Must property be within the Philippines?
A: Yes, so that it is subject to the jurisdiction of our laws
Q: Basis for value of property?
A: Courts will value the property, and they are conservative about it
SECTION 13: JUSTIFICATION OF SURETIES
Every surety shall justify by affidavit taken before the judge that he possesses the
qualification prescribed in the preceding section. He shall describe the property given as
security, stating the nature of his title, its encumbrances, the number and amount of other
bails entered into by him and still undischarged, and his other liabilities. The court may
examine the sureties upon oath concerning their sufficiency in such manner as it may deem
proper. No bail shall be approved unless the surety is qualified.
REQUIREMENTS FOR A PROPERTY BOND:
o Sections 11-13
SECTION 14: DEPOSIT OF CASH AS BAIL
The accused or any person acting in his behalf may deposit in cash with the nearest
collector of internal revenue or provincial, city, or municipal treasurer the amount of bail
fixed by the court, or recommended by the prosecutor who investigated or filed the case.
Upon submission of a proper certificate of deposit and a written undertaking showing
compliance with the requirements of section 2 of this Rule, the accused shall be discharged
from custody. The money deposited shall be considered as bail and applied to the payment
of fine and costs while the excess, if any, shall be returned to the accused or to whoever
made the deposit.
Who may post bail under this Rule?
o Accused
o Any person acting in his behalf
Where to deposit cash as bail:
o Nearest collector of internal revenue
o Provincial, city or municipal treasurer
o Or the clerk of court where the case is pending (Riano added this)
How much?
• Amount of bail fixed by court, OR
• Recommended by the prosecutor who investigated or filed the case
What must be submitted:
o Proper certificate of deposit
o Written undertaking showing compliance with Section 2 of this Rule
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Where will the money be applied?
• The money shall be considered as bail
• Applied to the payment of fine and costs
• While the excess, if any, shall be returned to the accused or to whoever made the
deposit.
Boomsri Notes
• Bail can be applied to pecuniary penalties like fines. It will not be applied for
pecuniary liabilities, such as, damages.
o You can only do so if bail was already returned to you and motion for
execution is filed
Boomsri Notes
Requirements of cash bond bail:
1. Get a copy of the information or warrant of arrest. Recommended bail would
be indicated in the warrant
2. Get a certification from your barangay that you are resident (or government
ID)
3. Prepare a map from the court to your residence. Bring all of these to court.
• If in flagrante delicto arrest, important to bring Certificate of detention
issued by police station where your client is detained.
4. Go to court and ask for bail. But you have to bring your client. No proxy filing
allowed.
5. Order of payment will be given to you. Then go down to cashier to pay.
6. From the judge, get “order recalling warrant of arrest” then tell your client to
put it everywhere he goes.
• If in flagrante delicto, you will get a “release order” (there’s not warrant
of arrest to be recalled)
SECTION 15: RECOGNIZANCE
Whenever allowed by law or these Rules, the court may release a person in custody on his
own recognizance or that of a responsible person.
DEFINITION: A bond by which a person undertakes before a court or magistrate to observe
some condition, especially to appear when summoned.
Recognizance may be made by:
1. The accused himself or
2. A responsible person
SECTION 16: BAIL, WHEN NOT REQUIRED; REDUCED BAIL OR RECOGNIZANCE
No bail shall be required when the law or these Rules so provide.
When a person has been in custody for a period equal to or more than the possible
maximum imprisonment prescribed for the offense charged, he shall be released
immediately, without prejudice to the continuation of the trial or the proceedings on appeal.
If the maximum penalty to which the accused may be sentenced is destierro, he shall be
released after thirty (30) days of preventive imprisonment.
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WHEN RELEASE ON RECOGNIZANCE MAY BE ORDERED: (OCPYS)
1. The offense charged is for violation of an ordinance, a light felony or a criminal
offense, the imposable penalty of which does not exceed 6 months imprisonment
and/or P2,000 fine, under the circumstances provided for in RA 6036
2. Where a person has been in custody for a period equal to or more than the
minimum of the imposable principal penalty, without application of ISLAW, the
court may allow his release on his own recognizance, or on a reduced bail, at the
discretion of the court
3. Where the accused has applied for probation pending finality of the judgment, but
no bail was filed or the accused is incapable of filing one
4. In case of a youthful offender held for physical and mental examination, trial or
appeal, if he is unable to furnish bail and under the circumstances of PD 603
5. In summary procedure, when the accused has been arrested for failure to appear
when required. His release shall be either on bail or recognizance by a responsible
citizen acceptable to the court
o In this case the release of the accused cannot be effected on his own
recognizance
Boomsri Notes:
• To be released on recognizance:
a. Must have served the minimum;
b. After arraignment
• Applies only to felonies under the RPC; unless the nomenclature is used in SPL
WHEN BAIL NOT REQUIRED
RULE: Bail is not required when the law or the Rules of Court so provide.
• When a person has been in custody for a period equal to or more than the possible
maximum imprisonment prescribed for the offense charged, he shall be released
immediately, without prejudice to the continuation of the trial or the proceedings
on appeal.
o Art. 29, RPC is substantive law.
• If the maximum penalty to which the accused may be sentenced is destierro, he
shall be released after thirty (30) days of preventive imprisonment.
• In cases filed with the Municipal Trial Court or Municipal Circuit Trial Court for an
offense punishable by imprisonment of less than four (4) years, two (2) months,
and one (1) day, and the judge is satisfied that there is no necessity for placing
the accused under custody, he may issue summons instead of a warrant of arrest
(Sec. 8[b], Rule 112, Rules of Court).
o Since no arrest is made, bail is not required.
• Subject to certain exceptions, under Sec. 1 of R.A. 6036, bail shall not be required
if a person is charged with a violation of a municipal or city ordinance, a light felony
and/ or a criminal offense, the prescribed penalty for which is not higher than six
(6) months imprisonment and/or a fine of P2,000.00, or both where it is
established that he is unable to post the required cash or bail bond.
§ In all these cases, bail is not required prior to the release of the person in
custody
SECTION 17: BAIL, WHERE FILED
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& JP+ET C2020 |
a. Bail in the amount fixed may be filed with the court where the case is pending, or
in the absence or unavailability of the judge thereof, with any regional trial judge,
metropolitan trial judge, municipal trial judge, or municipal circuit trial
judge in the province, city or municipality. If the accused is arrested in a province,
city, or municipality other than where the case is pending, bail may also be filed
with any regional trial court of said place, of if no judge thereof is available, with
any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge
therein.
b. Where (1) the grant of bail is a matter of discretion, or (2) the accused seeks to
be released on recognizance, the application may be filed only in the court where
the case is pending, on trial or appeal
c. Any person in custody who is not yet charged in court may apply for bail with any
court in the province, city, or municipality where he is held.
GENERAL RULE: The application for bail may be filed with the court where the case is
pending
o If the judge thereof is absent or unavailable, the application may be filed with any
RTC judge, MeTC judge, MTC judge, or MCTC judge in the province, city or
municipality
o Judges who approve applications for bail of accused whose cases are
pending in other courts are guilty of gross ignorance of the law
o 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
o Case: if accused is detained in Camp Crame, QC, the application of bail shall be
filed before the proper QC court, and not in Marikina City.
Boomsri Notes: Two venues for bail: either where case is pending, or where detained. BUT:
If bail is discretionary (in the RTC) OR release on recognizance, ONLY where the case is
pending.
BAIL FOR THOSE NOT YET CHARGED
o Any person in custody who is not yet charged in court may apply for bail with any
court in the province, city or municipality where he is held
o A person deprived of liberty by virtue of his arrest or voluntary surrender may apply
for bail as soon as he is deprived of liberty, even before a complaint or information
is filed against him—he need not wait for arraignment
o NOTE: Petition for bail filed AFTER the filing of the information shall be set for
summary hearing after arraignment and pre-trial (Revised Guidelines).
COURT CANNOT REQUIRE ARRAIGNMENT BEFORE THE GRANT OF BAIL
o The grant of bail should not be conditioned upon the prior arraignment of the
accused
o In cases where bail is authorized, it should be granted before arraignment;
otherwise the accused will be precluded from filing a motion to quash which is to
be done before arraignment
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o If the information is quashed and the case is dismissed, there would be
no need for the arraignment of the accused
o Case: to condition the grant of bail on his arraignment would be to place him in a
position where he has to choose between (1) filing a motion to quash and, thus,
delay his release until his motion can be resolved because prior to its resolution,
he cannot be arraigned, and (2) foregoing the filing of a motion to quash so that
he can be arraigned at once and thereafter be released on bail. These scenarios
undermine the accused's constitutional right not to be put on trial except upon a
valid complaint or information sufficient to charge him with a crime and his right
to bail.
SECTION 18: NOTICE OF APPLICATION TO THE PROSECUTOR
In the application for bail under section 8 of this Rule, the court must give reasonable notice
of the hearing to the prosecutor or require him to submit his recommendation.
CORTES v. CATRAL GUIDELINES (CITED IN ENRILE v. SANDIGANBAYAN)
1. In all cases, whether bail is a matter of right or of discretion, notify the prosecutor
of the hearing of the application for bail or require him to submit his
recommendation (Section 18, Rule 114 of the Rules of Court, as amended);
2. Where bail is a matter of discretion, conduct a hearing of the application for bail
regardless of whether or not the prosecution refuses to present evidence to show
that the guilt of the accused is strong for the purpose of enabling the court to
exercise its sound discretion; (Section 7 and 8, supra)
3. Decide whether the guilt of the accused is strong based on the summary of
evidence of the prosecution;
4. If the guilt of the accused is not strong, discharge the accused upon the approval
of the bailbond. (Section 19, supra) Otherwise petition should be denied.
SECTION 19: RELEASE ON BAIL
The accused must be discharged upon approval of the bail by the judge with whom it was
filed in accordance with Section 17 of this Rule.
When bail is filed with a 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, which may, for good reason, require a different one to
be filed.
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, which may, for good reasons, require a
different one to be filed
o The failure of a judge who granted the bail to transmit the order of release and
other supporting papers to the court where the case is pending constitutes
violation of the Rules
TWO ORDERS
o First order: Order approving the bail
o Second order: Releasing the accused
DMG C2020 | CRIMPRO | DEAN VALLENTE
& JP+ET C2020 |
Boomsri Notes
• Bail is not only relevant for accused. It is also applicable for witnesses. You can
require a witness to post bail if you think he will not attend.
SECTION 20: INCREASE OR REDUCTION OF BAIL
After the accused is admitted to bail, the court may, upon good cause, either increase or
reduce its amount. When increased, the accused may be committed to custody if he does
not give bail in the increased amount within a reasonable period. An accused held to answer
a criminal charge, who is released without bail upon filing of the complaint or information,
may, at any subsequent stage of the proceedings and whenever a strong showing of guilt
appears to the court, be required to give bail in the amount fixed, or in lieu thereof,
committed to custody.
Even after the accused is admitted to bail, the amount of bail may either be increased or
reduced by the court upon good cause
o The increased amount must be given within a reasonable period if the accused
wants to avoid being taken into custody
If upon the filing of the complaint or information the accused is released without bail, he
may later be required to give bail, in the amount fixed by the court, whenever at any
subsequent stage of the proceedings a strong showing of guilt appears to the court.
• If he does not give bail, he may be committed into custody
Class example: Recommended bail is P30k, and accused cannot afford said bail amount.
Q: Can the accused file a motion for reduction from P30k to P20k but instead of posting a
surety bond, the accused will post a cash bond?
A: Since the court has discretion, then the court MAY allow this taking into consideration
other circumstances. Courts have a preference for cash bail bonds.
Boomsri Notes:
• When filing a motion to reduce, talk to prosecutor to seek “no objection”
comment.
• There is a motion, because this is litigious
SECTION 21: FORFEITURE OF BAIL
When the presence of the accused is required by the court or these Rules, his bondsmen
shall be notified to produce him before the court on a given date and time. If the accused
fails to appear in person as required, his bail shall be declared forfeited and the bondsmen
given thirty (30) days within which to produce their principal and to show why no judgment
should be rendered against them for the amount of their bail. Within the said period, the
bondsmen must:
a. produce the body of their principal or give the reason for his non-production; and
b. explain why the accused did not appear before the court when first required to do
so.
Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly
and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate
the liability of the bondsmen, unless the accused has been surrendered or is acquitted.
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Q: Who are the bondsmen being referred to?
A: Those providing bond for the accused
§ Corporate surety: Corporations themselves
§ Property bonds: Owner of the property
§ Cash deposit: Person who provided money & deposited the cash
What must the bondsmen do?
§ Produce the body of their principal or give the reason for his non-production
§ Explain why the accused did not appear before the court when first required to do
so.
If the accused fails to appear in person as required, his bail shall be declared forfeited.
ORDER OF FORFEITURE (of bail): Interlocutory and merely requires the bondsmen “to show
cause why judgment should not be rendered against them for the amount of the bond”
• Judgment against the bondsmen cannot be entered unless such judgment is
preceded by an order of forfeiture and an opportunity given to the bondsmen to
produce the accused or to adduce satisfactory reason for their inability to do so.
• The order is different from the judgment on the bond which is issued if the
accused was not produced within the 30-day period (which is a final judgment?)
Aside from forfeiture, when the accused fails to appear in court despite notice, the court
may issue a bench warrant for his arrest.
BENCH WARRANT: A writ issued directly by a judge to a law enforcement officer for the
arrest of a person who has:
o Been held in contempt
o Disobeyed a subpoena
o Failed to appear at hearing or trial.
When a person released on bail fails to appear on the day fixed for the hearing, the court:
• may issue another order of arrest or
• may order the bond for his appearance be forfeited and confiscated,
• or both
Q: To mitigate the liability, what must the bondsman do?
A: Surrender of the accused to the jurisdiction of the court
Q: What does the rules authorize the bondsman to do to be able to produce the principal?
A: The Rule authorizes the bondsman to arrest the accused
REVISED GUIDELINES ON CONTINUOUS TRIAL
o A criminal case shall be archived only if
o after the issuance of the warrant of arrest, the accused remains at large for six (6)
months from the delivery of the warrant to the proper peace officer.
o Such case shall likewise be archived when proceedings therein are ordered suspended
for an indefinite period because:
…
• when the accused has jumped bail before arraignment and cannot be
arrested by the bondsman.
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OBLIGATION AND RIGHT OF THE BONDSMAN
o The bondsman shall surrender the accused to the court for execution of the final
judgment (Sec. 2[d], Rule 114).
o For the purpose of surrendering the accused, the bondsman may arrest him or,
upon written authority endorsed on a certified copy of the undertaking, cause him
to be arrested by a police officer or any other person of suitable age and discretion
o An accused released on bail may be re-arrested without the necessity of a warrant
if he attempts to depart from the Philippines without permission of the court where
the case is pending
o Case: The authority of the bondsman to arrest or cause the arrest of the accused
springs from the old principle that once the obligation of bail is assumed, the
bondsman or surety 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
Boomsri Notes
• If you want to leave, ask the court first so you will be issued a bond. Otherwise,
you can be arrested.
• See AM 18-07-05-SC. Section 1. Precautionary Hold Departure Order. - is an order
in writing issued by a court commanding the Bureau of Immigration to prevent
any attempt by a person suspected of a crime to depart from ·the Philippines,
which shall be issued ex-parte in cases involving crimes where the minimum of
the penalty prescribed by law is at least six ( 6) years and one (I) day or when the
offender is a foreigner regardless of the imposable penalty.
• Instances when Hold Departure Order may be issued:
1. Criminal case under AM 18-07-05-SC
2. Preliminary Investigation under AM 18-07-05-SC
3. HDO in Habeas Corpus for Minors
SECTION 24: NO BAIL AFTER FINAL JUDGEMENT; EXCEPTION
No bail shall be allowed after a judgment of conviction has become final. If before such
finality, the accused applies for probation, he may be allowed temporary liberty under his
bail. When no bail was filed or the accused is incapable of filing one, the court may allow
his release on recognizance to the custody of a responsible member of the community. In
no case shall bail be allowed after the accused has commenced to serve sentence.
WHEN BAIL IS NOT ALLOWED:
1. Capital offense, RP, life imprisonment when evidence of guilt is strong (Sec. 7)
2. Bail shall not be allowed after a judgment of conviction has become final
3. Bail shall not be allowed after the accused has commenced to serve sentence
Situation: Accused would rather apply for probation than appeal
SECTION 25: COURT SUPERVISION OF DETAINEES
The court shall exercise supervision over all persons in custody for the purpose of
eliminating unnecessary detention. The executive judges of the Regional Trial Courts shall
• conduct monthly personal inspections of provincial, city, and municipal jails and
the prisoners within their respective jurisdictions.
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SECTION 22: CANCELLATION OF BAIL
Upon application of the bondsmen, with due notice to the prosecutor, the bail may be
cancelled upon surrender of the accused or proof of his death.
The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal
of the case, or execution of the judgment of conviction.
In all instances, the cancellation shall be without prejudice to any liability on the bail.
CANCELLATION BY APPLICATION OF THE BONDSMEN
Bail may be cancelled upon application of the bondsmen with due notice to the prosecutor:
(SD)
a. Upon surrender of the accused
b. Proof of his death
AUTOMATIC CANCELLATION: The bail may be deemed automatically cancelled upon: (ADE)
a. Acquittal of the accused
b. Dismissal of the case
c. Execution of the judgment of conviction
Another instance of cancellation: Section 5 of Rule 114 allows the cancellation of bail where
the penalty imposed by the trial court is imprisonment exceeding six years if any of the
grounds in the said section is present as when the circumstances indicate the probability
of flight. This order cancelling the bail is subject to review by the appellate court, motu
proprio or on motion.
REMEDY AGAINST CANCELLATION ORDER
• Filing with the CA a motion to review the said order in the same regular appeal
proceedings which the appellant himself initiated, such motion being incident to
his appeal.
• Separate petition for certiorari contravenes the rule against multiplicity of suits
and constitutes forum shopping.
What is the liability being contemplated: Fines, costs etc. NOT CIVIL LIABILITY
Boomsri Notes:
• There is forfeiture of bail when there is a violation of the conditions of bail;
• There is cancellation of bail when there is acquittal, conviction, dismissal; or when
filed by the bondsman
SECTION 23: ARREST OF THE ACCUSED OUT ON BAIL
For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written
authority endorsed on a certified copy of the undertaking, cause him to be arrested by a
police officer or any other person of suitable age and discretion.
An accused released on bail may be re-arrested without the necessity of a warrant if he
attempts to depart from the Philippines without permission of the court where the case is
pending.
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JUDGE BOOMSRI
• They shall ascertain the number of detainees, inquire on their proper
accommodation and health and examine the condition of the jail facilities.
• They shall order the
• segregation of sexes and of minors from adults,
• ensure the observance of the right of detainees to confer privately with
counsel, and
• strive to eliminate conditions inimical to the detainees.
In cities and municipalities to be specified by the Supreme Court, the municipal trial judges
or municipal circuit trial judges shall
• conduct monthly personal inspections of the municipal jails in their respective
municipalities and
• submit a report to the executive judge of the Regional Trial Court having
jurisdiction therein.
A monthly report of such visitation shall be submitted by the executive judges to the Court
Administrator which shall state the total number of detainees, the names of those held for
more than thirty (30) days, the duration of detention, the crime charged, the status of the
case, the cause for detention, and other pertinent information.
SECTION 26: BAIL NOT A BAR TO OBJECTIONS ON ILLEGAL ARREST, LACK OF OR
IRREGULAR PRELIMINARY INVESTIGATION
An application for or admission to bail shall not bar the accused from challenging the validity
of his arrest or the legality of the warrant issued therefore, or from assailing the regularity
or questioning the absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. The court shall resolve the matter as
early as practicable but not later than the start of the trial of the case.
Accused is not precluded from questioning:
1. Validity of arrest
2. Legality of warrant
3. Absence of a preliminary investigation
Section 26 is a new rule intended to modify previous rulings.
• Procedural rules, as a general rule, operate retroactively, even without express
provisions to actions yet undetermined at the time of their effectivity
• The principle that the accused is precluded from questioning the legality of the
arrest after arraignment is true only if he voluntarily enters his plea and
participates during trial, without previously invoking his objections thereto.
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CHAPTER 7: RULE 115 (RIGHTS OF THE ACCUSED)
SECTION 1: RIGHTS OF THE ACCUSED AT TRIAL
In ALL criminal prosecutions, the accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b) To be informed of the nature and cause of the accusation against him.
(c) 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 (1) 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 (2) 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 rights without the
assistance of counsel.
(d) 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.
(e) To be exempt from being compelled to be a witness against himself.
(f) To confront and cross-examine the witnesses against him at the trial.
Either party may:
(1) utilize as part of its evidence the testimony of a witness who 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) given in another case or proceeding, judicial or administrative,
(3) involving the same parties and subject matter,
(4) the adverse party having the opportunity to cross-examine him.
(g) To have compulsory process issued to secure the attendance of witnesses and
production of other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and, in the manner, prescribed by law.
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Boomsri Notes:
• Read Cagam in full. One question in exam will be based there. It talks about
inordinate delay as a defense you will invoke in the PI stage.
RULE 115(a) – RIGHT TO BE PRESUMED INNOCENT
PRESUMPTION OF INNOCENCE
o Mere substantial reiteration of Sec. 14(2) of Art. III of the Constitution
o It imposes upon the People of the Philippines to prove beyond reasonable
doubt
§ Not only each element of the crime
§ But also, the identity of the accused as the criminal
o This presumption prevails over the presumption of regularity in the
performance of official duty
§ Presumption of regularity in the performance of official duty
should not, by itself, prevail over the presumption of innocence
even if Sec. 3(m) of Rule 131 clearly establish the disputable
presumption that “official duty has been regularly performed”
§ The presumption of regularity obtains only when there is no
deviation from the regular performance of duty. Where the
official act in question is irregular on its face, no presumption
of regularity can arise
o Ends when it is overcome in a final conviction
GENERAL RULE: The testimony of police officers who apprehended the accused is usually
accorded full faith
EXCEPTION: When the performance of their duties is tainted with irregularities, the
presumption is effectively destroyed
PROOF BEYOND REASONABLE DOUBT: Does not mean such degree of proof as excluding
possibility of error, produces absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced mind
o Without such quantum of evidence, the accused is entitled to an acquittal
o Proof beyond reasonable doubt is indispensable to overcome the
constitutional presumption of innocence
o If the prosecution fails to meet the required amount of evidence, the defense
may logically not even present evidence on its own behalf, in which case, the
presumption of innocence prevails, and the accused should necessarily be
acquitted
Q: How does it rank among the quantum of proof?
A: It is the highest
Every criminal conviction requires of the prosecution to prove – beyond reasonable doubt -
two things:
1. The fact of the crime
o i.e. The presence of all the elements of the crime for which the accused
stands charged
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2. The fact that the accused is the perpetrator of the crime
Burden of proof is always with the prosecution (Judge Boom)
o The determination of whether the prosecution has fulfilled such a heavy
burden is left to the trial court, which must be satisfied with moral certainty
that an accused has indeed committed the crime on the basis of facts and
circumstances to warrant a judgment of conviction
o Otherwise, where there is reasonable doubt, acquittal must follow
PROSECUTION MUST REST ON ITS OWN MERITS TO PROVE GUILT OF THE ACCUSED
o The conviction of the accused must stand on the strength of the
prosecution’s evidence, not on the weakness of the defense which the
accused put up
o If the evidence of guilt falls short of the requirement of guilt beyond
reasonable doubt, the Court will not allow the accused to be deprived of his
liberty. His acquittal should come as a matter of course
o However, once the presumption of innocence is overcome, the defense bears
the burden of evidence to show reasonable doubt as to the guilt of the
accused
EQUIPOISE RULE: Provides that where the evidence in a criminal case is evenly balanced,
the constitutional presumption of innocence tilts in favor of the accused
o Triggered by a situation where the court is faced with conflicting versions of the
prosecution and the defense, and where the evidence, facts and circumstances
are capable of two or more explanations, one of which is consistent with the
innocence of the accused and the other consistent with his guilt. This situation
cannot fulfill the test of moral certainty and is not sufficient to support a
conviction.
o Principle that “it would be better to set free ten men who might be probably guilty
of the crime charged than to convict one innocent man for a crime he did not
commit”
o The rule is not applicable where the evidence presented is not of equal weight,
such that the evidence of the prosecution is overwhelming
o But any doubt shall be resolved in favor of the accused
EFFECT OF PLEA OF SELF-DEFENSE
GENERAL RULE: The burden lies upon the prosecution to prove the guilt of the accused
beyond reasonable doubt
EXCEPTION: If the accused admits to a crime but pleads self-defense, the burden of
evidence is shifted to him to prove such defense
o Self-defense, when invoked as a justifying circumstance, implies the admission
by the accused that he committed the criminal act
RULE 115(b) – RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION
In order to inform the accused of the nature and cause of accusation against him, it is
necessary for the complaint or information to contain matters required by the statute or
Rules of Court: (2NAC PDP) (See Sec. 6, Rule 110)
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o To state the name and surname of the accused (Rule 110, Sec. 7)
o To state the name and surname of the offended party (Rule 110, Sec. 12)
o To state with sufficient clarity the acts and omissions constituting the offense
(Rule 110, Sec. 9)
o To state the designation of the offense given by statute (Rule 110, Sec. 8)
o To state the qualifying and aggravating circumstances (Rule 110, Sec. 8 & 9)
o To allege where the crime was committed within the jurisdiction of the court (Rule
110, Sec. 10)
o To allege the date of the commission of the offense (Rule 110, Sec. 11)
o In offenses against property, it must be described with particularity (Rule 110,
Sec. 12)
To broaden the scope of the right, the Rules authorize the quashal, upon motion of the
accused, of an information that fails to allege the acts constituting the offense
It is a basic constitutional right of the accused persons to be informed of the nature and
cause of accusation against them
o It would be a denial of accused’s basic right to due process if he is charged with
simple rape and consequently convicted with certain qualifying circumstances
which were not alleged in the information
o Ex. Accused cannot be convicted for violation of BP 22 if the check described in
the information is not the check allegedly issued and admitted in evidence.
§ Similarly, there is violation of accused’s right when there is a
variance between the dates of the check as alleged in the
information and as indicated in the documentary evidence
presented and marked as exhibit
o Ex. There is also a violation of the right where the judge set a criminal case for
arraignment and hearing knowing fully well that no preliminary investigation had
been conducted and no information had yet been filed before his court
o Ex. The Court held that in a simple carnapping case, where circumstances of
violence against, or intimidation or force upon things were proven in trial, such as
to raise the penalty, may not be appreciated because they were not alleged in the
information.
o However, the Court did not find any violation in the case where the information
alleged sale and possession of shabu (C10H15N), but the fact that was
established was actually sale and possession of ephedrine, a regulated drug
(C10H15NO). It held that his right to be informed of the charges against him has
not been violated because, where an accused is charged with a specific crime, he
is duly informed not only of such specific crime, but also of lesser crimes or
offenses included therein.
§ Example of variance doctrine
When an ambiguity exists in the complaint or information, the court has no other recourse
but to resolve the ambiguity in favor of the accused
o An acquittal of the accused is proper when there exists ambiguity as to the identity
of the subject of the offense, like the drug alleged to have been sold by the
accused
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JUDGE BOOMSRI

When the counsel of the accused actively participated in the proceedings, this indicates
that the accused was fully aware of the charges against him; otherwise his counsel would
have objected and informed the court of the blunder
o BUT The failure to file a motion to quash the information cannot amount to a
waiver of the constitutional right to be informed
RULE 115(c) – RIGHT TO COUNSEL (RA 7438)
o The accused has the right to defend in person and by counsel at every stage of
the proceedings, from arraignment to promulgation of judgment
§ The right to counsel proceeds from the fundamental principle
of due process which basically means that a person must be
heard before being condemned.
§ The due process requirement is part of a person’s basic rights;
it is not a mere formality that may be dispensed with or
performed perfunctorily
o One need not be an accused to avail of the right to counsel and the right to counsel
does not commence only during the trial
o Every person under custody of the law enjoys the right
§ Any person arrested, detained or under custodial investigation
shall at all times be assisted by counsel
§ Even a person under investigation for an offense has the right
to have a “competent and independent counsel preferably of
his own choice”
o The right to counsel includes the right to be informed of his right to counsel
o In the absence of any lawyer, no custodial investigation shall be conducted, and
the suspected person can only be detained by the investigating officer in
accordance with the provisions of Art. 125 of the RPC
o A counsel shall at all times be allowed to confer privately with the person arrested,
detained or under custodial investigation
o Applies in pre-trial proceedings such as preliminary investigation
§ This investigation can be no different from the in-custody
interrogations by the police, for a suspect who takes part in a
preliminary investigation will be subjected to no less than the
State’s processes, oftentimes intimidating and relentless, of
pursuing those who might be liable for criminal prosecution
PURPOSE: To curb the police-state practice of extracting a confession that leads suspects
to make incriminating statements
The right of a person under interrogation “to be informed” implies a correlative obligation
on the part of the police investigator to explain and contemplates an effective
communication that results in an understanding of what is conveyed.
The failure to inform the suspect of his right to counsel during custodial investigation attains
significance only if the person under investigation makes a confession in writing without aid
of counsel and which is then sought to be admitted against the accused during trial.
o In such case the tainted confession obtained is inadmissible in evidence against
the accused
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The suspect must be advised that he has the option to reject the counsel provided for him
by the police authorities which fact must appear in his extrajudicial confession.
o Where the participation of counsel is confined to mere notarization of the
suspect’s confession, it is not considered the kind of legal assistance which must
be accorded
A mere inquiry on the commission of a crime by law enforcement authorities does not
automatically trigger the application of the right to counsel
o It is only after the investigation ceased to be a general inquiry into an unsolved
crime and begins to focus on a particular suspect, the suspect is taken into
custody, and the police carries out a process of interrogations that lend itself to
eliciting incriminating statements, that the Miranda Rule begins to operate
o Though RA 7438 has extended the constitutional guarantee of the right to counsel
to situations in which an individual has not been formally arrested but has merely
been “invited” for questioning
NO RIGHT TO COUNSEL IN A MERE POLICE LINE-UP
o Not part of the custodial inquest since the accused at that stage is not yet being
investigated. Here, the right to counsel does not yet attach.
o This is because during a police line-up, the process has not yet shifted from the
investigatory to the accusatory and it is usually the complainant who is
interrogated who gives a statement during the line-up
o Being made to stand in a police line-up is not the starting point of custodial
investigation
o However, when the accused is interrogated or the police investigation has begun
to focus on a particular suspect, custodial investigation is said to have started
RIGHT TO CHOOSE COUNSEL IS NOT PLENARY
o The choice of counsel by the accused in a criminal proceeding is not a plenary
(absolute) one
o If the chosen counsel deliberately makes himself scarce, the court is not
precluded from appointing a de oficio counsel, which it considers competent and
independent, to enable the trial to proceed until the counsel of choice enters his
appearance, otherwise the pace of a criminal prosecution will be entirely dictated
by the accused, to the detriment of the eventual resolution of the case
RIGHT MAY BE WAIVED
o Waiver must be in writing and in the presence of the counsel of the accused
COMPETENT AND INDEPENDENT COUNSEL
o The lawyer called to be present during the investigations should be as far as
reasonably possible, the choice of the individual undergoing questioning
o If the lawyer were one furnished in the accused’s behalf, it is important that he
should be competent and independent
§ i.e. That he is willing to fully safeguard the constitutional rights
of the accused, as distinguished from one who would be
merely giving a routine, peremptory and meaningless recital of
his constitutional rights
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JUDGE BOOMSRI

o Ideally, a lawyer engaged for an individual during custodial investigation (if the
accused cannot afford one) should be engaged by the accused himself, or his
relative or person authorized by him to engage an attorney or by the court
§ Upon proper petition of the accused or person authorized by
the accused to file such petition
o Lawyers engaged by the police, whatever testimonials are given as proof of their
probity and supposed independence, are generally suspect, as in many areas, the
relationship between lawyers and law enforcement authorities can by symbiotic
o The counsel must be present from the beginning to the end, at all stages of the
interview, counseling or advising caution reasonably at every turn of the
investigation, and stopping the interrogation once in a while either to give advice
to the accused that he may either:
§ Continue
§ Choose to remain silent
§ Terminate the interview
o An extrajudicial confession executed by a suspect assisted by a counsel who failed
to meet such standards is deemed an uncounseled confession, and inadmissible
in evidence
o There is a violation of the right to a competent and independent counsel when the
first lawyer did not cross-examine the complainant and asked to be relieved. Then
the second lawyer appointed, missed several dates and could no longer be
located. And lastly, the third lawyer was appointed and later ceased to appear.
§ The right to counsel must be more than just the presence of a
lawyer in the courtroom or the mere propounding of standard
questions and objections
§ Tersely put, it means an efficient and truly decisive legal
assistance and not a simple perfunctory representation
RIGHT TO COUNSEL IN ADMINISTRATIVE CASES
o Assistance of counsel is sacred in criminal proceedings; there is no such
requirement in administrative proceedings
§ A party in an administrative proceeding may or may not be
assisted by counsel
o The administrative body is under no duty to provide the person with counsel
because assistance of counsel is not an absolute requirement
o It is not indispensable in administrative proceedings
MEANING OF CUSTODIAL INVESTIGATION
o Any questioning initiated by law enforcement authorities after a person is taken
into custody or otherwise deprived of his freedom of action in any significant
manner
§ Ex. When an accused was brought to the police station, he was
already a suspect to the crime of rape.
o RA 7438 has redefined this concept
o The constitutional guarantee is now accorded to an individual who has not
been formally arrested but has merely been “invited” for questioning
o It shall include the practice of issuing an invitation to a person who is
investigated in connection with an offense he is suspected to have
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committed, without prejudice to the liability of the “inviting” officer for any
violation of law
RULE 115(c) – RIGHT OF ACCUSED TO DEFEND HIMSELF; BE PRESENT AT TRIAL; BE HEARD
o An accused is accorded the right to defend himself either in person or by
counsel. Hence, he has the right to be present at every stage of the
proceedings from arraignment to promulgation of judgment
§ Upon motion, the accused may be allowed by the court to
defend himself in person when it sufficiently appears to the
court that he can properly protect his rights without the
assistance of counsel
o Pursuant to stipulations set forth in his bail, the accused has the right to
waive his presence at the trial but shall be required to be at the trial if his
presence is specifically ordered for purposes of identification
o The waiver to be present at trial may be inferred from his absence without
justifiable cause, provided he had prior notice
o In case the accused is under custody and escapes, his act shall be deemed
a waiver to be present on all subsequent trial dates until custody over him is
regained
§ Two waivers here:
§ Implied waiver to be present at trial – if he does not
appear to trial despite notice
• If he went to arraignment, BUT absent in trial,
trial may proceed despite this provided he has
been duly notified of trial and his failure to
appear is unjustified
§ Waiver to be present on all subsequent trial dates – if he
is under custody but escapes (Note: my own view)
o When the accused filed a motion for leave to file a demurrer to evidence,
which was granted, and the demurrer was eventually denied, the trial court
should give the accused the opportunity to present his evidence. To be
denied the opportunity to be heard is procedurally unfair and a miscarriage
of justice.
§ See Sec. 23 (2), Rule 119
RULE 115(d) – RIGHT TO TESTIFY AS A WITNESS
o The accused has the right to testify as a witness in his own behalf but subject
to cross-examination on matters covered by the direct examination
o The questions that may be asked are limited to those covered in the direct
examination
o This is in contrast to the much wider scope of the cross-examination of an
ordinary witness (who is not accused)
§ Under Sec. 6 Rule 132, the witness may be cross-examined by
the adverse party not only as to any matter stated in the direct
examination or those connected with the matters stated in the
direct examination
§ But the cross examiner is given “sufficient fullness and
freedom” to ask questions that would test the accuracy and
truthfulness of the witness
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JUDGE BOOMSRI
§ The witness may even be asked questions for the purpose of
eliciting all important facts bearing upon the issue even if they
were not covered by his direct examination as long as the
question has relevance to the issues of the case
o If the accused does not want to testify in his behalf and chooses to remain
silent, his silence “shall not in any manner prejudice him”
RULE 115(e) – RIGHT (PRIVILEGE) AGAINST SELF-INCRIMINATION
o No person shall be compelled to be a witness against himself
o In all criminal prosecutions, the accused shall be entitled to be exempt from
being compelled to be a witness against himself
o It is intended to prevent the State, with all its coercive powers, from extracting
from the suspect testimony that may convict him and to avoid a person
subject to such compulsion to perjure himself for his own protection
§ The Government must establish the guilt of the accused by
evidence independently and freely secured
§ It cannot by coercion prove a charge against an accused by his
own mouth
o Rests upon the principle that “forcing a man to be a witness against himself
is at war with fundamentals of a republican government”; that it may suit the
purposes of despotic power but it cannot abide the pure atmosphere of
political liberty and personal freedom
MEANING OF COMPULSION
o Does not necessarily connote the use of violence
o May be the product of unintentional statements
o Pressure which operates to overbear will, disable him from making a free and
rational choice or impair his capacity for rational judgment would be
sufficient, so is moral coercion that tends to force testimony from the
unwilling lips of the accused
o To compel a woman to submit to a physical examination to determine her
pregnancy is not a violation of the right
o The Court admitted in evidence morphine that was forced out of the mouth
of the accused because it involved no testimonial compulsion
o The Court explained that the right against self-incrimination is a prohibition
of the use of physical or moral compulsion, to extort communications from
him, not an exclusion of his body as evidence, when it may be material
o Requiring a person to put on clothings or shoes for size or for measuring or
photographing is not a violation
o Obtaining DNA samples in a paternity case it not a violation
o Taking of paraffin test is not a violation
INCRIMINATORY NATURE OF FORCED RE-ENACTMENTS
o Like uncounseled and coerced confessions, come within the ban against self-
incrimination
§ Thus, all evidence based on such re-enactment are to be
deemed in violation of the Constitution and, hence,
incompetent evidence
o This is because the protection against testimonial compulsion has been
extended to any evidence “Communicative in nature” acquired under
circumstances of duress
o Essentially, the right is meant to avoid and prohibit positively the repetition
and recurrence of the certainly inhuman procedure of compelling a person,
in a criminal or any other case, to furnish the missing evidence necessary for
his conviction
§ Thus, an act, whether testimonial or passive, that would
amount to a disclosure of incriminatory facts is covered by the
inhibition of the Constitution
o The accused is not merely required to exhibit some physical characteristics;
by and large, he is made to admit criminal responsibility against his will

RIGHT OF AN ACCUSED
An accused may altogether refuse to take
the witness stand and refuse to answer
any and all questions
RIGHT OF AN ORDINARY WITNESS
May be compelled to take the witness
stand and claim the privilege as each
question requiring an incriminating
answer is shot at him
Can be claimed only when the specific
question, incriminatory in character, is
put to the witness. Cannot be claimed at
any other time. Does not give a witness
the right to disregard a subpoena, to
decline to appear before the court at the
time appointed, or to refuse to testify
altogether
NOTE: A confession is presumed voluntary until the contrary is proved and the confessant
bears the burden of proving the contrary
INCRIMINATORY NATURE OF WRITING EXEMPLARS OR SAMPLES
o As to the scope of the privilege against self-incrimination, it is not limited
precisely to testimony, but extends to the giving or furnishing of evidence
o Writing is not a purely mechanical act, because it requires the application of
intelligence and attention
o More so when witness is compelled to write and create by means of the act
of writing, evidence which does not exist, and which may identify him as the
falsifier
o But not every act of affixing one’s signature is within the protection of the
privilege

SCOPE BELTRAN VILLAFLOR

o Protects a person only from testimonial compulsion or a compelled testimony of a The question deals with something not yet It was sought to exhibit something already
communicative nature in existence, and it is precisely sought to in existence
compel the petitioner to make, prepare, or

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produce by this means, evidence not yet in
existence; INAPPLICABILITY WHEN WITNESS IS GIVEN IMMUNITY FROM PROSECUTION

In short, to create this evidence which may The government may grant immunity in two forms:
seriously incriminate him
TRANSACTIONAL IMMUNITY USE AND DERIVATIVE USE IMMUNITY
BELTRAN MARCELO “Blanket” or “total” immunity; broader
Purpose was to show that the specimen Purpose was not to compare the in scope
handwriting matched the handwriting in signature of the petitioner for the Completely protects the witness from Prevents the prosecution only from using the
the document alleged to have been prosecution of falsification but merely to future prosecution for crimes related witness’ own testimony or any evidence
falsified and thereby show that the authenticate the envelopes as the one to his or her testimony derived from the testimony against the
accused was the author of the crime seized from him; not to produce a non- witness
(falsification) existent evidence Should the prosecutor later on acquire
There was no other evidence than the There was sufficient evidence evidence of a crime committed by the
writing exemplar the accused was asked independent of his signature, and can witness, independently of the witness’
to produce against himself stand on their own being the fruits of the testimony, the witness may then be
crime prosecuted for such crime
Invocation of right was upheld Invocation of right was not upheld
IMMUNITY STATUTES
NOTE: In this case of Marcelo, the Court explained that the proper objection that could have o Seek a rational accommodation between the imperatives of the privilege and the
been made was the absence of counsel during custodial investigation. The Court explained legitimate demands of government to compel citizens to testify
that when the signatures of the accused were affixed, such signatures were actually o The existence of these statutes reflects the importance of testimony, and the fact
evidence of admission obtained from petitioner and his co-accused under circumstances that many offenses are of such a character that the only persons capable of giving
constituting custodial investigation. useful testimony are those implicated in the crime

PROCEEDINGS WHERE THE PRIVILEGE MAY BE ASSERTED EXAMPLES OF IMMUNITY STATUTES

o Accorded to every person who gives evidence, whether voluntarily or under
compulsion of subpoena in any civil, criminal or administrative proceeding
o But note: range of privilege differs if accused or just an ordinary
witness
o It protects against any disclosures that the witness reasonably believes could
be used in a criminal prosecution or could lead to other evidence that might
be so used
CLAIM OF PRIVILEGE BY A WITNESS
o The right is not self-executing or automatically operational
o It must be claimed
o If not claimed by or in behalf of the witness, protection does not come into
play
WAIVER
o Privilege may be waived
o An accused may refuse to testify
o However, if he testifies in his own behalf, he may be cross-examined on
matters covered by direct examination
o Must be unequivocal, given intelligently, understandably and willingly
o Accordingly, courts do not presume a waiver of fundamental rights
and in fact, the courts indulge every reasonable presumption
against waiver
1. The State may not be sued without its consent
2. Immunity of members of Congress in all offenses punishable by not more than 6
years while Congress is in session
3. Power of CHR to grant immunity to any person whose testimony or possession of
documents/other evidence is necessary or convenient to determine the truth in
any investigation conducted by it
4. Granting of immunity by the Ombudsman
5. Granting of immunity by the PCGG
6. Granting of immunity under the Tariff and Customs Code
7. Witness Protection, Security and Benefit Act
RULE 115(f) – RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES AGAINST HIM
o These are basic constitutional rights embodied in Sec. 14(2) of Art. III of the
Constitution
o The cross-examination of a witness is essential to:
§ Test his or her accuracy
§ Expose falsehoods or half truths
§ Uncover the truth which rehearsed direct examination
testimonies may successfully suppress
§ Demonstrate inconsistencies in substantial matters which
create reasonable doubt as to the guilt of the accused

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o This right is available in judicial litigation (criminal or civil), proceedings § While justice is administered with dispatch, the essential
before administrative tribunals with quasi-judicial powers, as a matter of due ingredient is orderly, expeditious and not mere speed
process o This right does not preclude justifiable postponements and delay when
o This right is a personal one which may be waived expressly or impliedly, by warranted by the situation
conduct amounting to renunciation of such right § Particular regard must be taken of the facts and
§ May occur when the party fails to cross-examine the witnesses circumstances peculiar to each case
against him despite opportunity to do so
§ What is prohibited is the absence of the opportunity to cross- WHEN RIGHT IS DEEMED VIOLATED
examine o It is deemed violated only when:
o EFFECT: Where the adverse party is deprived of the right to cross-examine o the proceedings are attended by vexatious, capricious, and oppressive
the persons who executed the affidavits, said affidavits are generally rejected delays, or
for being hearsay o when unjustified postponements of the trial are asked for and secured,
o In the absence of cross-examination, the direct examination of the witness or
should be expunged from the records o when without cause or justifiable motive, a long period of time is allowed
§ If the witness is the lone witness, the trial court would not have to elapse without the party having his case tried
a basis to deny a demurrer to evidence o The factors to consider are: (DRAP)
§ If one is deprived of the opportunity to cross-examine without § Duration of the delay
fault on his part, it is generally held that he is entitled to have § Reason therefor
the direct examination stricken from the record § Assertion of the right or failure to assert it
§ Prejudice caused by such delay
As long as a party is given the opportunity to defend his or her interest in due course, said
party is not denied due process. RIGHT TO SPEEDY DISPOSATION OF CASES
o All persons (not just accused) shall have the right to a speedy disposition of their
Under the present rules, the right of confrontation does not apply in a preliminary cases before all judicial, quasi-judicial or administrative bodies (Sec. 16, Art III
investigation Constitution)
§ The investigating officer during preliminary investigation, may set a hearing if o A mere mathematical reckoning of the time involved would not be sufficient since
there are facts and issues to be clarified from a party or witness the facts and circumstances peculiar to the case must also be considered
§ While parties are not allowed to examine or cross, they may, however, submit to § What the Constitution prohibits are unreasonable, arbitrary
the investigating officer questions which may be asked to the party or witness and oppressive delays which render rights nugatory
concerned
INVALID EXCUSES
RULE 115(g) – RIGHT TO COMPULSORY PROCESS o A judge’s illness should not be an excuse for his failure to render the
o May be invoked by the accused to secure attendance of witnesses and the corresponding decision or resolution within the prescribed period
production of witnesses in his behalf § In such case, the judge needs only to ask the SC for an
o In connection, the accused may move the court for the issuance of a extension of time to decide cases, as soon as it becomes clear
subpoena ad testificandum 1 or a subpoena duces tecum 2 pursuant to to him that there would be delay in his disposition of cases
provisions of Rule 21 o A heavy workload due to additional work, as acting presiding judge in other courts,
o In case of the unjustified failure of the witness to comply, the court or judge is not sufficient justification for the delay because judges are allowed, upon
issuing the subpoena, upon proof of the service of such subpoena and proof motion or letter request, extensions of the reglementary period in deciding cases
of his failure to attend, may issue a warrant for his arrest o Hence, delays caused by poor health, old age, heavy caseload, among others, do
not totally absolve a judge but only serve to mitigate the penalty from liability
RULE 115(h) – RIGHT TO A SPEEDY TRIAL o Absence of a branch clerk of court
o Cannot be invoked by someone who is not an accused o It is the duty of the judge to recommend to SC the immediate
o The essence of judicial function is that justice shall be impartially appointment of a branch clerk of court
administered without unnecessary delay o Non-submission of transcript of stenographic notes by stenographers would not
o Speedy trial is a relative term and necessarily involves flexibility relieve judges of their duty to render a decision within the required period as

1Court summons to appear and give oral testimony for use at a hearing or trial
2Court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a
hearing or trial

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judges are directed to take down notes of salient portions of the hearing and demanded trial; a prior assess and identify certain
proceed in the preparation of decisions without waiting for the transcribed demand is a necessary factors in determining
stenographic notes condition whether a defendant has
o The incompleteness of the TSN is not a ground for delay been deprived of his right
o Defects in a motion are not reasons for a judge not to act on the same such as the length, and
o If a judge believes that the motions pending before him were defective, reason of delay,
he could have simply acted on the said motions and indicated the defendant’s assertion of
supposed defects instead of just leaving them unresolved right and prejudice to the
defendant
DISMISSAL BASED ON A VIOLATION OF THE RIGHT TO SPEEDY DISPOSITION OF CASES Rejected because there is Rejected because it is The middle ground: The
o A criminal case may be dismissed for violation of a person’s right to speedy no constitutional basis for insensitive to a right which conduct of both the
disposition of cases holding that the speedy we have deemed prosecution and
o In Coscolluela v. Sandiganbayan, The Court held that there is violation trial can be quantified into fundamental defendant are weighed.
in the right to speedy disposition of cases of the accused, since it took a specific number of days
almost 8 years from the filing of the complaint to terminate the or months
preliminary investigation before the Office of the Ombudsman. Thus, as
a matter of course, result in the acquittal of the accused. FACTORS TO CONSIDER
o LENGTH OF DELAY: To some extent is a triggering mechanism
NOTE: A defendant has no duty to bring himself to trial; the State has that duty as well as § Until there is some delay which is presumptively prejudicial, there is no
the duty of insuring that the trial is consistent with due process necessity for inquiry into the other factors that go into the balance
§ Necessarily dependent upon the peculiar circumstances of the case
ESSENCE OF THIS RIGHT o REASON OF DELAY: The reason the government assigns to justify the delay
o Not merely hinged towards the objective of spurring dispatch in the administration § Different weights should be assigned to different reasons
of justice § A deliberate attempt to delay the trial in order to hamper the
o But also to prevent the oppression of the citizen by holding a criminal prosecution defense should be weighed heavily against the government
suspended over him for an indefinite time § A more neutral reason such as negligence or overcrowded
courts should be weighed less heavily but nevertheless should
SALUTARY OBJECTIVE be considered since the ultimate responsibility for such
o To assure that an innocent person may be free from the anxiety and expense of circumstances must rest with the government rather than with
litigation or, if otherwise, of having his guilt determined within the shortest the defendant
possible time compatible with the presentation and consideration of whatsoever § Finally, a valid reason, such as missing witness, should serve
legitimate defense he may interpose to justify appropriate delay
o DEFENDANT’S ASSERTION OF THE RIGHT: The more serious the deprivation, the
This must be weighed against the state and in favor of the individual. more likely a defendant is to complain
§ Hence this assertion is entitled to strong evidentiary weight in
The legal effects of a violation of the constitutional right of the accused to a speedy trial determining whether the defendant is being deprived of the right
apply equally when a person’s constitutional right to the speedy disposition of his case is § Failure to assert such right will make it difficult for a defendant to prove
violated. that he was denied a speedy trial
o PREJUDICE TO THE DEFENDANT: Should be assessed in the light of the interests
APPROACHES TO SPEEDY TRIAL of defendants
§ Three interests:
FIXED-TIME PERIOD DEMAND-WAIVER RULE BALANCING TEST • To prevent oppressive pretrial incarceration
US: The Constitution US: Provides that a The test necessarily • To minimize anxiety and concern of the accused
requires a criminal defendant waives any compels the courts to • To limit possibility that the defense will be impaired (most
defendant to be offered a consideration of his right approach speedy trial serious because inability of a defendant to prepare his case
trial within a specified time for any period prior to cases on an ad hoc3 basis skews the fairness of the entire system)
period which he has not where the courts should

3 “In this situation”

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EFFECT OF VIOLATION OF THE RIGHT TO SPEEDY TRIAL In the event of the failure to observe such time limits, the case against the accused may be
o Trial court may dismiss a criminal case on a motion nolle prosequi4 if the dismissed on ground of denial to the right to speedy trial
accused is not brought to trial within the prescribed time and is deprived of
such right on account of unreasonable or capricious delay caused by the NOTE: The time limits referred are subject to the excluded delays in Rule 119 of the Rules
prosecution of Court and the Speedy Trial Act of 1998
o There is permanent dismissal of a case when the ground for dismissal is such
o A dismissal based on such is equivalent to an acquittal, and double jeopardy WAIVER
may attach even if the dismissal is with the consent of the accused o The right may be waived
(remember, generally double jeopardy attaches when there is no consent of § Failure to object to the prosecution’s manifestation that the cases be
the accused) tried separately is fatal to his case
§ The records show that petitioner did not file any motion or
NOTE: If the accused wants to exercise his right to a speedy trial, he should first ask for the manifestation which could be construed, even remotely, as an
trial of the case, not for its dismissal indication that he wanted his case to be dispatched without delay. For
o If the prosecution cannot produce its witnesses or evidence and its motion or this, the Court concluded that the petitioner has clearly slept on his right
postponement is denied, then the accused should move for the dismissal of the
case, such dismissal amounting to an acquittal FACTORS FOR GRANTING CONTINUANCE
o Where after such dismissal, the prosecution moved for the reconsideration of the o Whether the failure to grant such a continuance in the proceeding would be
order of dismissal and the court reset the case for trial, the accused can likely to make a continuation of such proceeding impossible, or result in a
successfully claim double jeopardy since the order of dismissal was actually an miscarriage of justice
acquittal, was final and cannot be reconsidered o Whether the case taken as a whole is so novel, so unusual and so complex,
due to the number of the accused or the nature of the prosecution or
REMEDY WHERE THE ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE TIME LIMIT otherwise, that it is unreasonable to expect adequate preparation within the
o The information may be dismissed on the motion of the accused on the periods of time established
ground of denial of his right to speedy trial o No continuance shall be granted because of general congestion of the court’s
o The accused has the burden of proving the motion calendar, or lack of diligent preparation for failure to obtain available
§ But the prosecution shall have the burden of going forward with the witnesses on the part of the public prosecutor
evidence to establish the exclusion of time under Sec. 3 Rule 119
o Failure of the accused to move for dismissal prior to trial shall constitute a RULE 115(j) – RIGHT TO APPEAL
waiver of the right to have the information dismissed under the said section o In all criminal prosecutions, the accused shall have the right to appeal in the
manner prescribed by law
GUIDELINES FOR DECONGESTING HOLDING JAILS BY ENFORCING THE RIGHTS OF THE o An appeal is an essential part of the judicial system and trial courts have
ACCUSED PERSONS TO BAIL AND TO SPEEDY TRIAL been advised by the Court to proceed with caution so as not to deprive a party
o The case shall be raffled and referred to the trial court to which it is assigned the right to appeal
within 3 days from the filing of the information o This right is statutory. Its suppression would be a violation of due process
o The court shall arraign the accused within 10 days from the date of the raffle
o The court shall hold the pre-trial conference within 30 days after arraignment MATTERS FOR REVIEW BY APPELLATE COURT
or within 10 days if the accused is under preventive detention
o After the pre-trial conference, the court shall set the trial of the case in the CRIMINAL CIVIL
pre-trial order not later than 30 days from the termination of the pre-trial An appeal opens the whole case wide An unassigned error will not be
conference open for review and the reviewing tribunal considered by the appellate court
o The court shall terminate the regular trial within 180 days, or the trial by can correct errors or even reverse the trial
judicial affidavits within 60 days, reckoned from the date trial begins, minus court’s decision on grounds other than XPN: Unless such error affects the
the excluded delays or postponements specified in Rule 119 those that parties raise as errors jurisdiction of the court, the validity of
o Filing of info > raffle > arraignment > pre-trial conference > trial judgment appealed from, or the error is
(3>10>30>30>180) closely related to or dependent upon the
assigned error properly argued in the

4 Dismissal entered before the accused is placed on trial and before he is called on to plead

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brief, or when the error is simply plain or
clerical
The Court may, after combing through
evidence for the prosecution, modify the
decision respecting the civil aspect of the
case, if doing so is in order

It is settled that appellate courts will not interfere with the judgment of the trial court on the
credibility of witnesses, unless there appears in the record some facts or circumstances of
weight and influence which have been overlooked and if considered, would affect the result

Boomsri Notes:
• If you lose in RTC, always appeal. But if you lose in an MTC case, think about
appealing, because of probation. All MTC cases are punishable by probation.

NOTE: Dean Vannie skipped this Rule, he said we should already know this since it was
taken up in Consti 2

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CHAPTER 8: RULE 116 (ARRAIGNMENT AND PLEA)
PRE-ARRAIGNMENT MOTIONS (REVISED GUIDELINES ON CONTINUOUS TRIAL)
PROHIBITED MOTIONS
o Shall be denied outright before the scheduled arraignment without need of
comment and/or opposition
§ Motion for judicial determination of probable cause
§ Motion for preliminary investigation
• filed beyond the 5-day reglementary period in inquest
proceedings under Sec. 6, Rule 112, or
• when preliminary investigation is required (Note: I think this
should be “NOT required”) under Sec. 8, Rule 112 [i.e.,
offenses punishable by imprisonment of less than four (4)
years, two (2) months and one (1) day], or
• allowed in inquest proceedings and the accused failed to
participate in the preliminary investigation despite due notice
§ Motion for reinvestigation of the prosecutor recommending the filing of
information once the information has been filed before the court
• (1) if the motion is filed without prior leave of court;
• (2) when preliminary investigation is not required under Sec.
8, Rule 112; and
• (3) when the regular preliminary investigation is required and
has been actually conducted, and the grounds relied upon in
the motion are not meritorious, such as issues of credibility,
admissibility of evidence, innocence of the accused, or lack of
due process when the accused was actually notified, among
others
§ Motion to quash information when the ground is not one of those stated
in Sec. 3, Rule 117
§ Motion for bill of particulars that does not conform to Sec. 9, Rule 116
§ Motion to suspend the arraignment based on grounds not stated under
Sec. 11, Rule 116
§ Petition to suspend the criminal action on the ground of prejudicial
question, when no civil case has been filed, pursuant to Sec. 7, Rule
111
§ A motion for postponement is prohibited
• except if it is based on:
• acts of God, force majeure or
• physical inability of the witness to appear and testify.
MERITORIOUS MOTIONS
o Motions that allege plausible grounds supported by relevant documents and/or
competent evidence, except those that are already covered by the Revised
Guidelines
§ Motion to
• (1) withdraw information, or to
• (2) downgrade the charge in the original information, or to
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• (3) exclude an accused originally charged therein,
• filed by the prosecution
• as a result of a reinvestigation, reconsideration, and review;
§ Motion to suspend arraignment on the ground of an unsound mental
condition under Sec. 11 (a), Rule 116
§ Motion to suspend proceedings on the ground of a prejudicial question
where a civil case was filed prior to the criminal case under Sec. 11 (b),
Rule 116
• (Note: if no civil case was filed, it is a prohibited motion)
§ Motion to quash warrant of arrest;
§ Motion to quash information on the grounds under Sec. 3, par. (a), (b),
(g), and (i), Rule 117, that:
• the facts charged do not constitute an offense,
• lack of jurisdiction, or
• extinction of criminal action or liability, or
• double jeopardy
§ Motion to discharge accused as a state witness under Sec. 17, Rule
119
§ Motion to quash search warrant under Sec. 14, Rule 126 or motion to
suppress evidence; and
§ Motion to dismiss on the ground that the criminal case is a Strategic
Lawsuit Against Public Participation (SLAPP) under Rule 6 of the Rules
of Procedure for Environmental Case
o The comment of the adverse party
§ shall be filed within a non-extendible period of ten (10) calendar days
from notice/receipt of the order of the court to file the same
§ and the court shall resolve the motion within a non-extendible period of
ten (10) calendar days from the expiration of the ten (10)-day period,
with or without comment.
o The court, at its discretion, may set the motion for hearing
§ within a non-extendible period of ten (10) calendar days from the
expiration of the ten (10)-day period to file comment,
§ in which case the same shall be submitted for resolution after the
termination of the hearing, and shall be resolved within a non-
extendible period of ten (10) calendar days thereafter.
§ Reply and memorandum need not be submitted.
o In case of a motion to discharge accused as state witness under Sec. 17, Rule
119, where the prosecution is required to present evidence in support thereof
§ such motion shall be submitted for resolution from the termination of
the hearing, and
§ shall be resolved within a non-extendible period of ten (10) calendar
days thereafter.
o The motion for reconsideration of the resolution of a meritorious motion
§ shall be filed within a non-extendible period of five (5) calendar days
from receipt of such resolution, and
§ the adverse party shall be given an equal period of five (5) calendar
days from receipt of the motion for reconsideration within which to
submit its comment.
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§ Thereafter, the motion for reconsideration shall be resolved by the court
within a non-extendible period of five (5) calendar days from the
expiration of the five (5)-day period to submit the comment.
o Motions that do not conform to the requirements stated above shall be
considered unmeritorious and shall be denied outright.
Summary of revised dates (in order):
• Comment – filed within 10 days from receipt of order to file comment; resolved
within 10 days.
• Hearing – at the court’s discretion within 10 days from expiration of period to file
comment.
• Resolution – case must be resolved within 10 days from start of hearing.
o Reply and memorandum no longer needed
o Motion to discharge accused as state witness - must be resolved from
the termination of the hearing; resolved within 10 days.
o Motion for reconsideration - filed within (non-extendible) 5 calendar days
from receipt of resolution.
o Comment on Motion for reconsideration - 5 days from receipt of the
adverse MR
Boomsri Notes:
o MR may be filed on meritorious motions within 5 days.
o Take note of this.
o No need to set for hearing
o Within 10 days to file comment on the motion
o Compared to Revised Rules on Civil Procedure, where there is only 5
days
SECTION 1: ARRAIGNMENT AND PLEA; HOW MADE
(a) The accused must be arraigned before the court where the complaint or
information was filed or assigned for trial.
(b) The accused must be present at the arraignment and must personally enter
his plea. Both arraignment and plea shall be made of record, but failure to do
so shall not affect the validity of the proceedings.
(c) When the accused refuses to plead or makes a conditional plea, a plea
of not guilty shall be entered for him.
(d) When the accused pleads guilty but presents exculpatory evidence, his plea
shall be deemed withdrawn and a plea of not guilty shall be entered for him.
(e) When the accused is under preventive detention, his case shall be
raffled and its records transmitted to the judge to whom the case was
raffled within three (3) days from the filing of the information or complaint.
o The accused shall be arraigned within ten (10) days from the date of the
raffle.
o The pre-trial conference of his case shall be held within ten (10) days
after arraignment.
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Q: What if the court personnel forgets to make the accused sign such certificate?
A: The proceedings will still continue
PRESENCE OF THE ACCUSED: The accused must be present at the arraignment and must
personally enter his plea
PRESENCE OF THE OFFENDED PARTY: The private offended party shall be required to
appear at the arraignment for the following purposes:
o Plea bargaining
o Determination of civil liability
o Other matters requiring his presence
In case the offended party fails to appear despite duty notice, the court may allow the
accused to enter a plea of guilty to a lesser offense which is necessarily included in the
offense charged with the conformity of the trial prosecutor alone
Boomsri Notes:
o The presence of the offended party is important to:
o Settle the civil aspect
o Plea bargaining
o Identification of the accused
o Although the Revised Guidelines imply that if private offended party is not present,
no plea-bargaining can be held, Boomsri says the Revised Guidelines cannot
supersede the Rules of Court.
o Plea bargaining is allowed with the conformity of the trial prosecutor
o NOTE: the requirement of presence of the offended party is required only
when it involves private crimes.
o Both accused and offended reside in QC. The mode of service of the notice of
arraignment on May 27 was registered mail, mailed on May 1. Only accused is
present in arraignment on June 20. Can the accused enter a plea-bargaining
agreement? Is it deemed service and offended party deemed notified?
o Yes. Under the revised rules of civil procedure, he is presumptively
notified. Since 20 days has passed, the accused can now plea bargain
to a lower offense with just the prosecutor.
o From Amended Rules on Civil Procedure: Section 10. Presumptive
service. - There shall be presumptive notice to a party of a court setting
if such notice appears on the records to have been mailed at least
twenty (20) calendar days prior to the scheduled date of hearing and if
the addressee is from within the same judicial region of the court where
the case is pending, or at least thirty (30) calendar days if the addressee
is from outside the judicial region
WHERE ARRAIGNMENT IS TO BE MADE: The accused must be arraigned before the court
where the complaint or information was filed or assigned for trial
Q: F is detained in Manila, case is pending in Cebu, can he move that he be arraigned in
Manila instead?
A: No. He has to be arraigned in Cebu.
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(f) The private offended party shall be required to appear at the arraignment for
purposes of (1) plea bargaining, (2) determination of civil liability, and (3)
other matters requiring his presence.
o In case of failure of the offended party to appear despite due notice,
the court may allow the accused to enter a plea of guilty to a lesser
offense which is necessarily included in the offense charged with
the conformity of the trial prosecutor alone.
(g) Unless a shorter period is provided by special law or Supreme Court circular,
the arraignment shall be held within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused.
o The time of the pendency of a (1) motion to quash or (2) for a bill of
particulars or (3) other causes justifying suspension of the
arraignment shall be excluded in computing the period.
ARRAIGNMENT: It is the formal mode and manner of implementing the constitutional right
of an accused to be informed of the nature and cause of the accusation against him
o Formal answer of the accused whether he pleads guilty or not guilty
o Essentially:
§ Accused must be furnished with a copy of the complaint or information
§ Judge or clerk must read the contents to the accused in the language
or dialect known to him
PURPOSE: To apprise the accused why he is being prosecuted by the State. As such, it is an
indispensable requirement of due process and cannot be regarded lightly or brushed aside
peremptorily
IMPORTANCE: Based on the constitutional right of the accused to be informed
o Procedural due process requires that the accused be arraigned so that he
may be informed of:
§ The reason for his indictment
§ The specific charges he is bound to face
§ The corresponding penalty that could be possibly meted against him
o It is at this stage that the accused for the first time is given the opportunity
to know the precise charge that confronts him
EFFECT OF THE ABSENCE OF ARRAIGNMENT: This results in the nullity of the proceedings
before the trial court
o If the accused has not been arraigned, he cannot be tried in absentia
Boomsri Notes:
o Arraignment opens the door to trial in absentia
RECORD OF ARRAIGNMENT: The arraignment and plea shall be made of record, but failure
to do so shall not affect the validity of the proceedings
Q: What will be the evidence of arraignment?
A: The accused will be made to sign a certificate of arraignment
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JUDGE BOOMSRI
HOW ARRAIGNMENT IS MADE: The arraignment is made
o In open court by the judge or clerk
o By furnishing the accused with a copy of the complaint or information
o Reading the same in the language or dialect known to him, and
o Asking him whether he pleads guilty or not guilty
NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL
o Waiver of Reading of the Information. In multiple cases, the court, upon personal
examination of the accused, may allow a waiver of the reading of the information
o upon the full understanding and express consent of the accused and
his/her counsel,
o which consent shall be expressly stated in both the minutes/certificate
of arraignment and the order of arraignment.
o The court shall explain the waiver to the accused in the language or
dialect known to him/her and
o ensure the accused's full understanding of the consequences of the
waiver before approving the same.
o Requirements of waiver:
§ The court must personally examine accused
§ Full understanding of the accused
§ Express consent by accused AND his/her counsel
§ Consent is expressly stated in BOTH minutes/cert. of
arraignment and the order of arraignment
§ Waiver must be explained to the accused in a language/dialect
known to him
WHEN ARRAIGNMENT IS TO BE MADE: The arraignment shall be held within 30 days from
the date the court acquires jurisdiction over the person of the accused, unless a shorter
period is provided by a special law or Supreme Court circular
o Under the existing law, it shall be held within 30 days from the filing of
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
o Thereafter, where a plea of not guilty is entered, the accused shall
have at least 15 days to prepare for trial
o In computing for the period, the following shall be excluded:
§ The time of the pendency of a motion to quash
§ The time for the pendency of a bill of particulars
§ Other causes justifying the suspension of the arraignment
Different case when accused is under preventive detention (i.e. unable to post bail because
he cannot afford it or bail is not a matter of right)
o See Section 1(e) of this Rule
Boomsri notes:
o The issuance of the warrant of arrest does not yet grant the court to set the
date of arraignment
o It is the actual custody or arrest that vests jurisdiction to the Court
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NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL Shall require the prosecution to prove the May modify the order of trial and require
o Once the court has acquired jurisdiction over the person of the accused, the guilt of the accused beyond reasonable the accused to prove such defense by
arraignment of the accused and the pre- trial shall be set within ten (10) doubt clear and convincing evidence
calendar days from date of the court's receipt of the case for a detained
accused, and within thirty (30) calendar days from the date the court WHEN ACCUSED IS UNDER PREVENTIVE DETENTION: His case shall be raffled, and its
acquires jurisdiction (either by arrest or voluntary surrender) over a non- records transmitted to the judge to whom the case was raffled within 3 days from the filing
detained accused, unless a shorter period is provided by special law or of information or complaint
Supreme Court circular. o The accused shall be arraigned within 10 days from the date of the raffle and
the pre-trial conference shall be held within 10 days after arraignment
REVISED GUIDELINES ON CONTINUOUS TRIAL DECONGESTING HOLDING JAILS
DETAINED NON-DETAINED - NOTE: Several jurisprudence rule that arraignment may be made after a case has been
Arraignment and pre- Arraignment and pre- The case shall be raffled and referred submitted for decision
trial shall be set 10d trial shall be set 30d to the trial court to which it is o The Court held that the arrest, not his arraignment, conferred on the trial
from the date of receipt from date the court assigned within 3 days from the filing court jurisdiction over his person
of case acquires jurisdiction of the information o Nevertheless, the belated arraignment did not prejudice the accused. This
procedural defect was cured when his counsel participated in the trial without
The court shall arraign the accused raising any objection that his client had yet to be arraigned. His counsel’s
within 10 days from the date of the active participation in the hearings is a clear indication that he was fully
raffle aware of the charges against him; otherwise his counsel would have objected
and informed the court of this blunder. Moreover, no protest was made when
The court shall hold the pre-trial the accused was subsequently arraigned
conference within 30 days after
arraignment or within 10 days if the WHEN A PLEA OF ‘NOT GUILTY’ SHALL BE ENTERED
accused is under preventive Aside from an actual plea of not guilty, a plea of not guilty shall be entered for the accused
detention if he: (RCE)
The court must set the The court must set o Refuses to plead
arraignment of the the arraignment of - o Makes a conditional plea
accused in the the accused in the § Conditional Plea: One where the defendant pleads guilty to the
commitment order order of approval of offense, but specifically reserves the right to appeal certain aspects
bail, in any other case of the case
For this purpose, where the Executive Judge and § A plea is not to be considered conditional if it amounts to a plea for
Pairing Judges act on bail applications in cases - leniency in the imposition of a penalty
assigned to other courts, they shall coordinate o Pleads guilty but presents exculpatory evidence
with the courts to which the cases are actually § Exculpatory Evidence: Exonerates or tends to exonerate the
assigned for scheduling purposes. defendant of guilt (e.g. committed in self-defense)
§ In which case the guilty plea shall be deemed withdrawn and a plea
o Notice of arraignment and pre-trial shall be sent to of not guilty shall be entered
o (1) the accused, (2) his/her counsel, § In such a situation, no re-arraignment is required
o (3) private complainant or complaining law enforcement agent, § In People v. Balicasan, accused plead guilty but testified that he
o (4) public prosecutor, and acted in complete self-defense. In effect, his plea was vacated.
o (5) witnesses whose names appear in the information for purposes However, since a new plea of not guilty was not entered for him, it
of plea-bargaining, arraignment and pre-trial. follows that there was no standing plea at the time the court
acquitted him. There can be no double jeopardy since there was no
IF THE ACCUSED PLEADS NOT GUILTY: S/he shall state whether s/he interposes a negative plea
or affirmative defense
Q: Will this require the judge to direct the court personnel to reflect such change of plea on
NEGATIVE DEFENSE AFFIRMATIVE DEFENSE record (re: exculpatory evidence)?
A: Yes, because it will not automatically reflect. Judge has to act on it. It must be put on
record (proof is needed).

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The accused, by entering a plea of not guilty, submits himself to the jurisdiction of the trial
court, thereby curing any defect of arrest
o However, the waiver of the right to question the legality of the arrest does not
necessarily carry with it his waiver of the right to question the admissibility of the
evidence procured on the occasion of or incidental to the illegal arrest
o The waiver did not transform an inadmissible evidence to one that is admissible
NOTE: When a plea of guilty is not definite or ambiguous or not absolute, the same amounts
to a plea of not guilty
Boomsri Notes
• Importance of Arraignment: After arraignment, if you are absent, court can
continue trial in absentia. As compared to prior arraignment, where absence of
accused can delay the proceedings.
• Directly after posting bail, court must set for arraignment.
• Remember: setting for arraignment always now includes pre-trial.
SECTION 2: PLEA OF GUILTY TO A LESSER OFFENSE
At arraignment, the accused,
§ with the consent of the offended party and prosecutor,
§ may be allowed by the trial court to plead guilty to a lesser offense which is
necessarily included in the offense charged.
After arraignment but before trial, the accused may still be allowed to plead guilty to said
lesser offense after withdrawing his plea of not guilty.
No amendment of the complaint or information is necessary.
PLEA BARGAINING: It is a process whereby the accused and the prosecution work a mutually
satisfactory disposition of the case subject to court approval
o It usually involves the defendant’s pleading guilty to a lesser offense or to only
one or some of the counts of a multi-count indictment in return for a lighter
sentence than that for the graver charge
REQUISITES FOR A PLEA OF GUILTY TO A LESSER OFFENSE
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
a. Note: According to the Revised Guidelines, whose consent is needed
depends on what type of crime.
i. Private crime: offended party + public prosecutor
ii. Victimless crime: arresting officer + public prosecutor
The consent of the offended party will not be required if said party, despite due notice, fails
to appear during arraignment; here only consent of prosecutor is required
The acceptance of an offer to plead guilty to a lesser offense is NOT demandable by the
accused as a matter of right but is a matter addressed entirely to the sound discretion of
the trial court
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o The Rule uses the word may, denoting an exercise of discretion upon the trial
court on whether to allow the accused to make such plea
WHEN IS AN OFFENSE SAID TO NECESSARILY INCLUDE ANOTHER?
o When some of the essential elements or ingredients of the former as alleged in
the complaint or information constitute the latter and vice versa
o e.g. A person charged with robbery or theft cannot plead guilty to estafa
because the elements of the latter are not included in the former
WHEN PLEA OF GUILTY TO A LESSER OFFENSE MAY BE MADE
o The rule allows a plea of guilty to a lesser offense, not only “at arraignment” but
also “after arraignment” and after his prior plea of not guilty is withdrawn,
provided the same be made “before trial”
o However, it may also be considered during trial proper and even after the
prosecution has finished presenting its evidence and rested its case (Daan v.
Sandiganbayan)
o The rule regarding Pre-Trial under Rule 118 indicates that plea bargaining is one
of the matters to be considered during the pre-trial stage, a proceeding conducted
before the trial
o When there is a plea of guilty to a lesser offense and the same was allowed by the
court, there is no need to amend the information or complaint
NOTE: Here there is no need for re-arraignment because when an offense is necessarily
included in another, the accused may be convicted under the same information
NOTE FROM CLASS: The provision in the DDA of 2002 prohibiting plea bargaining has been
struck down by the Court, now plea bargaining is allowed again so long as this is done with
the consent of the prosecutor
NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL
o Plea Bargaining Except in Drug Cases. If the accused desires to enter a plea of
guilty to a lesser offense, plea bargaining shall immediately proceed, provided
o the private offended party in private crimes, or
o the arresting officer in victimless crimes,
§ is present to give his/her consent
o with the conformity of the public prosecutor to the plea bargaining.
o Thereafter, judgment shall be immediately rendered in the same
proceedings.
o Plea of Guilty to the Crime Charged in the Information. If the accused pleads guilty
to the crime charged in the information, judgment shall be immediately rendered,
except in those cases involving capital punishment.
o Where No Plea Bargaining or Plea of Guilty Takes Place. If the accused does not
enter a plea of guilty, whether to a lesser offense or to the offense charged in the
information, the court shall immediately proceed with the arraignment and the
pre-trial, in accordance with the succeeding provisions on pre-trial.
o The schedule of the trial dates, for both the prosecution and the accused, shall be
continuous and within the periods provided in the Regular Rules/Special Rules.
The trial dates may be shortened depending on the number of witnesses to be
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presented. In this regard, a flowchart shall be prepared by the court which shall
serve as the final schedule of hearings.
SECTION 3: PLEA OF GUILTY TO A CAPITAL OFFENSE; RECEPTION OF EVIDENCE
When the accused pleads guilty to a capital offense, the court shall
§ conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of his plea AND
§ shall require the prosecution
o to prove his guilt and
o the precise degree of culpability.
§ The accused may present evidence in his behalf.
CAPITAL OFFENSE – One which, under the law existing at the time of its commission AND
of the application for admission to bail, may be punished with death
When the accused pleads guilty to a capital offense, it is not proper for the court to
immediately render judgment on the basis of the guilty plea. Instead, the court is mandated
to perform the following acts:
o To conduct a searching inquiry
§ To ascertain the voluntariness of the plea
§ To ascertain whether or not the accused has full comprehension of
the consequences of his plea
o To require the prosecution to prove the following:
§ Guilt of the accused
§ The precise degree of his culpability
o To ask the accused if he wishes to present evidence in his behalf and be
allowed to do so, if he desires
The process is mandatory and absent any showing that it has been duly observed, a
searching inquiry cannot be said to have been aptly undertaken.
o In capital offenses, one cannot just lean on the presumption that the accused
has understood his plea
o A mere warning that the accused faces the supreme penalty of death is
insufficient
RATIONALE BEHIND THIS RULE: The courts must proceed with more care where the possible
punishment is in its severest form, namely death, for the reason that the execution of such
sentence is irreversible.
o The primordial purpose is to avoid improvident pleas of guilt on the part of an
accused where grave crimes are involved since he might be admitting his
guilt before the court and, thus, forfeiting his life and liberty without having
fully understood the meaning, significance and consequence of his plea
o Moreover, the requirement of taking further evidence would aid the Court on
appellate review in determining the propriety or impropriety of the plea
SEARCHING INQUIRY, DEFINITION: There is no definite and concrete rule as to how a trial
judge must conduct a searching inquiry, but nevertheless, the Court came up with the
following guidelines in the making of such inquiry:
o Ascertain from the accused himself
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§ How he was brought into the custody of the law
§ Whether he had the assistance of a competent counsel during the
custodial and preliminary investigations
§ Under what conditions he was detained and interrogated during the
investigation
o Ask the defense counsel a series of questions as to whether he had conferred
with, and completely explained to the accused the meaning and
consequences of a plea of guilty
o Elicit information about the personality profile of the accused, such as his
age, socio-economic status, and educational background, which may serve
as a trust-worthy index of his capacity to give a free and informed plea of
guilty
o Inform the accused the exact length of imprisonment or nature of the penalty
under the law and the certainty that he will serve such sentence
§ For not infrequently, an accused pleads guilty in the hope of a
lenient treatment or upon bad advice or because of promises of the
authorities or parties of a lighter penalty should he admit guilt or
express remorse
§ It is the duty of the judge to ensure that the accused does not labor
under these mistaken impressions because a plea of guilty carries
with it not only the admission of authorship of the crime proper but
also of the aggravating circumstances attending it, that increase
punishment
o Inquire if the accused knows the crime which he is charged and fully explain
to him the elements of the crime which is the basis of his indictment.
§ Failure of the court to do so would constitute a violation of his
fundamental right to be informed of the precise nature of the
accusation against him and a denial of his right to due process
o All questions posed to the accused should be in a language known and
understood by the latter
o The trial judge must satisfy himself that the accused, in pleading guilty, is
truly guilty
§ The accused may be required to narrate the tragedy or reenact the
crime or furnish its missing details
SECTION 4: PLEA OF GUILTY TO NON-CAPITAL OFFENSE; RECEPTION OF EVIDENCE,
DISCRETIONARY
When the accused pleads guilty to a non-capital offense, the court may receive evidence
from the parties to determine the penalty to be imposed.
When the accused pleads guilty to a non-capital offense, the court may receive evidence
from the parties to determine the penalty to be imposed
o The accused cannot invoke Section 3 of Rule 116 requiring the court to conduct
a searching inquiry into the voluntariness and full comprehension of the
consequences of his plea
There is no rule which provides that simply because the accused pleaded guilty to the
charge that his conviction automatically follows.
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o Additional evidence independent of the plea may be considered to convince
the judge that it was intelligently made
o It will certainly be a clear abuse of discretion on the part of the judge to persist
in holding the accused bound to his admission of guilty and sentencing him
accordingly when the totality of the evidence points to his acquittal
o Note the Revised Guidelines: Plea of Guilty to the Crime Charged in the
Information. If the accused pleads guilty to the crime charged in the information,
judgment shall be immediately rendered, except in those cases involving capital
punishment.
Q: Discretion of the judge for whom to present evidence?
A: For both parties (prosecution and accused)
JUDICIAL CONFESSION: As a rule, a plea of guilty is a judicial confession of guilt — an
admission of all the material facts alleged in the information, including the aggravating
circumstances alleged
EXCEPTION: If such circumstances are disproved by the evidence, it should be disallowed
in judgment.
o Case: when an accused, who lacks instruction, pleads guilty to the crime of
parricide described in the information as having been committed with treachery
and evident premeditation and his testimony before the trial court fails to show
the existence of such aggravating circumstances, his plea of guilty shall be
understood as being to the admission of having committed the crime of parricide,
not of having done so with treachery and evident premeditation.
o A plea of guilty does not dispense with the presentation of evidence
§ When the accused pleads guilty to a non-capital offense, the court may
receive evidence to determine the penalty to be imposed
§ If the plea is to a capital offense, the prosecution shall be required to
prove the guilt of the accused and the precise degree of his culpability
SECTION 5: WITHDRAWAL OF IMPROVIDENT PLEA OF GUILTY
At any time before the judgment of conviction becomes final, the court may permit an
improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty.
IMPROVIDENT5 PLEA OF GUILTY
o At any time before the judgment of conviction becomes final, the court may permit
an improvident plea of guilty to be withdrawn and be substituted by a plea of not
guilty
o Where the trial court failed in its duty to conduct the prescribed “searching
inquiry” into the voluntariness of the accused’s plea of guilty and full
comprehension thereof, the plea of guilty is deemed made improvidently and
rendered inefficacious
o Convictions based on an improvident plea of guilty are set aside only if such plea
is the sole basis of the judgment
5 Not having or showing foresight; spendthrift or thoughtless
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§ When the trial court relied on sufficient and credible evidence to convict
the accused, the same must be sustained because the conviction was
not based on the guilty plea of the accused
NOTE FROM CLASS: This is only applicable to when the accused pleads guilty to a capital
offense
SECTION 6: DUTY OF COURT TO INFORM ACCUSED OF HIS RIGHT TO COUNSEL
Before arraignment, the court shall inform the accused of his right to counsel and ask him
if he desires to have one. Unless the accused is allowed to defend himself in person or has
employed counsel of his choice, the court must assign a counsel de oficio to defend him.
DUTY OF THE COURT BEFORE ARRAIGNMENT
o Inform the accused of his right to counsel
o Ask him if he desires to have one
o Must assign a counsel de oficio to defend him, unless the accused
§ Is allowed to defend himself in person
§ Has employed a counsel of his choice
GENERAL RULE: This duty is mandatory
EXCEPTION: If the accused waives such right and the court, finding the accused capable,
allows him to represent himself in person
o If the court has not allowed the accused to represent himself or the accused is
incapable of representing himself, the judge has the duty to appoint a counsel de
oficio to give meaning and substance to the constitutional right of the accused to
counsel
o The insistence of the accused to be arraigned without representation is no reason
for the judge to accede readily to his wishes
o A judge has the duty to protect the rights of the accused, even against their wishes,
when it is clear that he is not in a position to validly exercise or waive those rights
SECTION 7: APPOINTMENT OF COUNSEL DE OFICIO
The court, considering the gravity of the offense and the difficulty of the questions that may
arise, shall appoint as counsel de oficio such members of the bar in good standing who, by
reason of their experience and ability, can competently defend the accused.
But in localities where such members of the bar are not available, the court may appoint
• any person, resident of the province and
• of good repute for probity and ability, to defend the accused.
Counsel de parte – Accused chooses for himself
Counsel de oficio – Appointed by courts
SECTION 8: TIME FOR COUNSEL DE OFICIO TO PREPARE FOR ARRAIGNMENT
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Whenever a counsel de oficio is appointed by the court to defend the accused at the
arraignment, he shall be given a reasonable time to consult with the accused as to his plea
before proceeding with the arraignment.
SECTION 9: BILL OF PARTICULARS
The accused may, before arraignment, move for a bill of particulars to enable him properly
to plead and prepare for trial. The motion shall specify the (1) alleged defects of the
complaint or information and the (2) details desired.
OPTIONS OF THE ACCUSED BEFORE ARRAIGNMENT AND PLEA
o Bill of particulars – The accused may, before arraignment, move for a bill of particulars
to enable him to properly plead and prepare for trial. This must be done before he
enters his plea, as failure to do so amounts to a waiver of the defect or detail desired
in the information. The motion shall:
§ Specify the alleged defects of the complaint or information
§ Specify the details desired
§ If form required is not followed, it is a prohibited motion. (Revised Guidelines)
o Suspension of arraignment – Upon motion, the proper party may ask for the
suspension of the arraignment in the following cases:
§ The accused appears to be suffering from an unsound mental condition
which effectively renders him unable to fully understand the charge against
him and to plead intelligently thereto.
• In such a case, the court shall order his mental examination
and if necessary, his confinement for such purpose
§ There exists a prejudicial question
§ There is a petition for review of the resolution of the prosecutor which is
pending at either the DOJ or Office of the President (see Sec. 11(c) of this
Rule)
• The period of suspension shall not exceed 60 days counted
from the filing of the petition with the reviewing office
• In a case, the Supreme Court held that the Rules of Procedure
of the Ombudsman allows the filing of an information in court
pending a MR of the finding of a probable cause; hence, if the
filing of a MR of the resolution finding probable cause cannot
bar the filing of the corresponding information, then neither
can it bar the arraignment of the accused, which, in the normal
course of criminal procedure, logically follows the filing of the
information
§ If the ground is not one of these, it is a prohibited motion (Revised
Guidelines)
§ Re: prejudicial question, if no civil case if filed, it’s a prohibited motion
(Revised Guidelines)
o Motion to quash – At any time before entering his plea, the accused may move to
quash the complaint or information on any of the grounds provided for under Sec. 3 of
Rule 117 (in relation to Sec. 1 of said Rule)
§ If the ground is not one of these, it is a prohibited motion (Revised
Guidelines)
o (1) Challenge the validity of arrest or (2) legality of the warrant issued or (3) assail the
regularity or (4) question the absence of a preliminary investigation of the charge (Sec.
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26, Rule 114) – An objection against an arrest or the procedure in the acquisition by
the court of jurisdiction over the person of an accused should be made at or before the
arraignment; otherwise the objection is deemed waived
§ The arraignment of the accused constitutes a waiver of the right to
preliminary investigation or reinvestigation
§ Such waiver is tantamount to a finding of probable cause
NOTE: Jurisprudence is clear that, with the arraignment of the accused, the DOJ Secretary
can no longer entertain the appeal or petition for review because petitioner had already
waived or abandoned the same
Boomsri Notes
• Important amendment: If your pre-arraignment motion is resolved/denied, you
only have 5 days to file an MR.
o This is an exception to the rule that MRs in interlocutory orders are
subject to the court's discretion only.
ARRAIGNMENT UNDER AN AMENDED/SUBSTITUTED INFORMATION
FORMAL AMENDMENT: There is no need for another preliminary investigation and the
retaking of the plea of the accused
SUBSTANTIAL AMENDMENT: Arraignment on the amended information is mandatory
o Because the accused has a constitutional right to be informed of the
accusation against him, more so, because the accused had repeatedly called
the attention of the court to the absence of arraignment
o If he is not arraigned and is convicted under the second information, the
conviction constitutes reversible error
SUBSTITUTION: Another preliminary investigation is entailed, and the accused has to plead
anew to the information
SECTION 10: PRODUCTION OR INSPECTION OF MATERIAL EVIDENCE IN POSSESSION OF
PROSECUTION
Upon motion of the accused showing (1) good cause and with (2) notice to the parties, the
court,
§ in order to prevent surprise, suppression, or alteration,
§ may order the prosecution to produce and permit
§ the inspection and copying or photographing of any written statement given by the
complainant and other witnesses in any investigation of the offense conducted by
the prosecution or other investigating officers,
§ as well as any designated documents, papers, books, accounts, letters,
photographs, object, or tangible things not otherwise privileged,
§ which constitute or contain evidence material to any matter involved in the case
§ and which are in the possession or under the control of the prosecution, police,
or other law investigating agencies.
PRODUCTION OR INSPECTION OF MATERIAL EVIDENCE
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o This Rule allows a mode of discovery aside from those allowed in other parts
of the Rules of Court
o Section 10 authorizes the court to issue an order to the prosecution to
produce and permit the inspection and copying or photographing of:
o any written statement given by the complainant and other
witnesses in any investigation of the offense conducted by the
prosecution or other investigating officers, as well as
o any designated documents, papers, books, accounts, letters,
photographs, object, or tangible things
§ not otherwise privileged
§ which constitute or contain evidence material to any
matter involved in the case and
§ which are in the possession or under the control of the
prosecution, police, or other law investigating agencies.
o The production or inspection of material evidence in possession of the
prosecution shall be allowed upon motion of the accused with notice to the
parties
o 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

Q: What kinds of evidence are covered?

A: Real evidence is included. Essentially covered almost all of the possible evidence

SECTION 11: SUSPENSION OF ARRAIGNMENT

Upon motion by the proper party, the arraignment shall be suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto.
o In such case, the court shall order his mental examination and, if necessary,
his confinement for such purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President;
o provided, that the period of suspension shall not exceed sixty (60) days
counted from the filing of the petition with the reviewing office.

Boomsri Notes:
• Although the grounds for suspending the arraignment is exclusive, the pending
resolution of a motion to quash has the same effect as suspending the
arraignment.

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PRE-TRIAL (RULE 118) o Provided, however, that where the direct testimonies of the witnesses are to be
presented through judicial affidavits, the court shall give the prosecution not
SECTION 1: PRE-TRIAL; MANDATORY IN CRIMINAL CASES more than 20 days from arraignment within which to prepare and submit their
In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan judicial affidavits in time for the pre-trial conference
Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial
Court, the court shall, after arraignment and within thirty (30) days from the date the court DUTY OF THE BRANCH CLERK
acquires jurisdiction over the person of the accused, unless a shorter period is provided for o Assist the parties in reaching a settlement of the civil aspect of the case
in special laws or circulars of the Supreme Court, order a pre-trial conference to consider o Mark the documents to be presented as exhibits and copies thereof attached to
the following: the records after comparison
(a) plea bargaining; o Ascertain from the parties the undisputed facts and admissions on the
(b) stipulation of facts; genuineness and due execution of documents marked as exhibits
(c) marking for identification of evidence of the parties; o Consider such other matters as may aid in the prompt disposition of the case
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but interposes RECORDING OF THE MINUTES
a lawful defense; and o Proceedings shall be recorded in the Minutes of Preliminary Conference
(f) such matters as will promote a fair and expeditious trial of the criminal and civil o Must be signed by both parties and counsel
aspects of the case. o Minutes and exhibits shall be attached by the Branch Clerk of Court to the
case record before the pre-trial
PURPOSES
A pre-trial is a proceeding conducted before the trial of the case for the following purposes: DUTY OF THE JUDGE BEFORE THE PRE-TRIAL CONFERENCE
o Plea bargaining S/He must study
o Stipulation of facts o The allegations in the information
o Marking for identification of evidence of the parties o The statements in the affidavits of witnesses and other documents which
o Waiver of objections to admissibility of evidence form part of the preliminary investigation
o Modification of the order of trial if the accused admits the charge but interposes
a lawful defense (justifying circumstances) DUTY OF THE JUDGE WHEN PLEA BARGAINING IS AGREED UPON
o Such matters as will promote a fair and expeditious trial of the criminal and civil o Issue an order to that effect
aspects of the case o Proceed to receive evidence on the civil aspect of the case
o Render and promulgate judgment of conviction, including the civil liability or
NOTE: No evidence shall be allowed to be prosecuted and offered during the trial other than damages duly established by the evidence
those identified and marked during the pre-trial, except when allowed by the court for good
cause shown. (I-B[2], A.M. No. 03-1-09-SC) Q: When plea bargaining fails, what steps should be taken?
A: First he must direct the parties to a preliminary conference before the clerk of court
NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL
o Stipulations. Proposals for stipulations shall be done with the active participation DUTY OF THE JUDGE WHEN PLEA BARGAINING FAILS
of the court itself and shall not be left alone to the counsels. o Shall adopt the minutes of the preliminary conference as part of the pre-trial
o Marking of evidence. The documentary evidence of the prosecution and the proceedings
accused shall be marked. o Confirm the markings of exhibits, admissions of genuineness and due
execution of documents
COURTS WHERE PRE-TRIAL IS MANDATORY o List object and testimonial evidence
o Sandiganbayan o Scrutinize every allegation in the information
o Regional Trial Court o Scrutinize affidavits and documents forming parts of the records of the
o Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, preliminary investigation
Municipal Circuit Trial Court o Define factual issues
o Ask parties to agree on specific dates for the trial
WHEN PRE-TRIAL SHALL BE HELD o Require the parties to submit the names, addresses and contact numbers of
The court shall hold the pre-trial conference within 30 days after arraignment or within 10 witnesses to be summoned
days if the accused is under preventive detention o Consider the modification of the trial, if the accused admits the charge but
interposes a lawful defense

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The sanction for non-appearance is The sanction is upon the counsel of the
ASKING QUESTIONS DURING THE PRE-TRIAL imposed upon the non-appearing party accused, or prosecutor (due to failure to
The judge shall be the one to ask the questions on issues raised therein, and all questions offer an acceptable excuse for lack of
must be directed to him to avoid hostilities between the parties cooperation)
Parties are required to file and serve their The Rule does not mention submission of
Q: In practice, who will preside over pre-trial conferences? respective pre-trial briefs pre-trial briefs
A: It’s normally the clerk of court. This does not happen in the presence of a judge NOTE: Pre-trial is mandatory for both civil and criminal cases

SECTION 2: PRE-TRIAL AGREEMENT JUDICIAL DISPUTE RESOLUTION (JDR); PURPOSES

All agreements or admissions made or entered during the pre-trial conference shall be • It is hoped that mediation and conciliation at the level of the judge would
o reduced in writing and contribute significantly to the resolution of mediatable cases, thereby increasing
o signed by the accused and counsel, the satisfaction of litigants in the court process and also helping to decongest the
o otherwise, they cannot be used against the accused. dockets of the judiciary. Another goal is to strengthen conciliation during the pre-
The agreements covering the matters referred to in Section 1 of this Rule shall be approved trial stage in order to expedite the resolution of cases
by the court.
STAGES IN THE JUDICIAL PROCEEDINGS WITH JDR; CONFIDENTIALITY
PRE-TRIAL AGREEMENTS; SIGNING OF ADMISSIONS MADE Judicial proceedings shall be divided into two stages:
All agreements and admissions made or entered during the pre-trial conference shall be o From the filing of a complaint, to the conduct of Court-Annexed Mediation
o Reduced in writing and JDR during the pre-trial stage
o Signed by the accused and counsel § The judge to whom the case has been originally raffled shall preside
and shall be called the JDR judge in this stage.
If this is not followed, such admissions cannot be used against the accused. o Pre-trial proper to trial and judgment
§ Not the same judge
All proceedings during the pre-trial shall be recorded, the transcripts prepared, and the § GENERAL RULE: The JDR judge shall not preside over the trial of the
minutes signed by the parties and/or their counsels same case when mediation did not succeed.
§ EXCEPTION: When the parties stipulate
Q: Any exceptions? o Revised guidelines DISPENSED with JDR.
A: Probably when there is justifiable delay hence evidence was not able to be marked
Boomsri Notes:
PRE-TRIAL IN A CIVIL CASE v. PRE-TRIAL IN A CRIMINAL CASE • Key amendments in the Revised Guidelines:
o JDR is dispensed with in criminal cases.
CIVIL CASE CRIMINAL CASE § JDR is now only applicable in civil cases.
Preceded by a motion ex parte filed by the Such motion is not required o Limited the cases that will be sent to Mediation.
plaintiff o Mediation is now only 30 days, non-extendible.

NOTE: As amended by A.M. No. 19-10-20-

SC, it is the branch clerk of court which
sets the case for pre-trial
Set by the court after the requisite motion
from the plaintiff after all pleadings have
been served and filed
NOTE: Set by the clerk, after all pleadings
have been served and filed
Purpose includes the possibility of an
amicable settlement or of a submission to
alternative modes of dispute resolution
Shall be ordered by the court after
arraignment and within 30 days from the
date the court acquires jurisdiction over
the person of the accused, unless a
shorter period is provided for in special
laws or circulars of the SC
These purposes are not enumerated. In
fact, an offer of compromise by the
accused may be received in evidence as
an implied admission of guilt
CONFIDENTIALITY
The mediation process is designed to be confidential
o In order to safeguard the confidentiality of mediation proceedings, the JDR judge
shall not pass on any information obtained in the course of conciliation, early
neutral evaluation, or mediation to the trial judge or to any other person
o All JDR conference shall be conducted in private
o The JDR judge may, however, confer in confidence with the mediator who
previously mediated the case, merely for the purpose of determining unresolved
issues
NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL
Arraignment and Preliminary Conference of Mediatable Cases subject to the Rule on
Summary Procedure

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o The arraignment and preliminary conference shall be simultaneously held, and
the court shall take up all the matters required under Sec. 14, Rule on Summary
Procedure during the preliminary conference.
§ If the accused pleads guilty to the crime charged in the information,
judgment shall be immediately rendered, except in those cases
involving capital punishment.
§ If the accused pleads guilty to a lesser offense, plea bargaining shall
immediately proceed,
• provided the (1) private offended party in private crimes, or the
(2) arresting officer in victimless crimes, is present to give
his/her consent
• with the conformity of the public prosecutor to the plea
bargaining.
• Thereafter, judgment shall be immediately rendered in the
same proceedings.
§ If the accused does not enter a plea, whether to a lesser offense or
to the offense charged in the information, the court shall immediately
proceed with the arraignment and the preliminary conference, and
thereafter refer the case to mediation.
CASES SUBJECT TO MEDIATION (INCLUDED REVISED GUIDELINES)
o All civil cases, settlement of estates, and cases covered by the Rule on Summary
Procedure, except those which by law may not be compromised (i.e. Criminal
cases)
o Criminal cases like violation of traffic rules and regulations and violation
of municipal or city ordinances although included in the list of cases
under summary procedure should not be mediated because they cannot
be compromised and might be a source of corruption if mediation pushes
through.
o Cases cognizable by the Lupong Tagapamayapa under the Katarungang
Pambarangay Law
o Crimes where payment may prevent criminal prosecution or may extinguish
criminal liability.
§ BP 22 cases
§ SSS Law, and
§ PAG-IBIG Law
o The civil aspect of quasi-offenses; criminal negligence under Title 14 RPC
§ Examples of quasi offenses:
§ Acts committed by reckless or simple imprudence or negligence
resulting, for example, slight, less serious, or serious physical
injuries;
§ Imprudence resulting in damage to property; and
§ Reckless or simple imprudence with violation of the motor
vehicle law.
o Crimes against property under Title 10 of the RPC, where the obligation may be
civil in nature, such as:
§ The civil aspect of estafa and libel under the proposed circular amending
A.M. No. 04-1-12-SC
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§ The civil aspect of theft, under Art. 308 of the RPC, as part of the cases for
referral to mediate
o Crimes against honor under Title 13, RPC, where liability is civil in nature
o Libel under RA 10175 (Cybercrime Prevention Act of 2012)
o Intellectual property rights cases where the liability may be civil in nature
The referral of the case for mediation to the Philippine Mediation Center (PMC) Unit shall
be made only after the conduct of the arraignment and the pre-trial/preliminary conference.
The court shall serve the Order of Referral to the PMC Unit immediately after the
arraignment and the pre-trial/preliminary conference.
The mediation shall be terminated within a non-extendible period of thirty (30) calendar
days from the date of referral by the court to the PMC Unit. After the lapse of the mediation
period or if mediation fails, trial shall proceed.
Except those cases mentioned above, criminal cases subject to the Rule on Summary
Procedure shall not be referred to mediation.
MEDIATION v. JDR
MEDIATION JDR
More active role between parties Overseen by the judge
For each court, there is a mediation
center attached
When case reaches pre-trial stage,
normally the judge will refer the matter to
mediation.
Mediators are accredited by the court It is the judge who presides
After JDR, judge can decide to dismiss not only the civil aspect but also the criminal aspect
of the case, hence tantamount to the resolution of a case.
Q: Who shall reduce the agreement in writing?
A: Stenographer
SECTION 3: NON-APPEARANCE AT PRE-TRIAL CONFERENCE
If the counsel for the accused or the prosecutor (1) does not appear at the pre-trial
conference and (2) does not offer an acceptable excuse for his lack of cooperation, the
court may impose proper sanctions or penalties.
CONSEQUENCES FOR NON-APPEARANCE AT PRE-TRIAL
The court may impose the proper sanctions or penalties
Q: Which counsel is to be sanctioned?
A: Counsel of the accused and prosecutor
Q: What if private prosecutor (who has written authorization) is absent but public prosecutor
is present?
A: Private prosecutor will be signed
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§ The modes of discovery are applicable, no doubt, to civil proceedings
NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL which necessarily include the civil aspect of a criminal case
o Absence of parties. The court shall proceed with the pre-trial despite the absence o Provisional remedies are available in connection with the civil action deemed
of the accused and/or private complainant, instituted with the criminal action pursuant to Rule 127 of the Rules of Court.
o provided they were duly notified of the same, and § No cogent reason exists to exclusively confine the use of modes of
o the counsel for the accused, as well as the public prosecutor, are discovery to civil cases.
present. o Some examples where clearly modes of discovery apply to criminal cases:
§ Rule 27 of Civil Procedure on production or inspection of documents
SECTION 4: PRE-TRIAL ORDER or things is in the same tenor as that of Sec. 10 of Rule 116 of
After the pre-trial conference, the court shall issue an order (1) reciting the actions taken, Criminal Procedure regarding production and inspection of material
(2) the facts stipulated, and (3) evidence marked. Such order shall bind the parties, limit evidence
the trial to matters not disposed of, and control the course of the action during the trial, § Rule 28 of Civil Procedure on mental examination is similar to that of
unless modified by the court to prevent manifest injustice. Sec. 11 of Rule 116 regarding the examination as well of the mental
condition of the accused or witness
Within 10 days after the termination of the pre-trial (Note: on the same day as Pre-trial now, § Sec. 1 of Rule 24 on depositions is broad enough to include criminal
as amended), the trial judge shall issue a Pre-trial Order setting for: proceedings since the term is “any matter”
o Actions taken during the pre-trial conference • However, the taking of depositions in criminal cases is
o Facts stipulated addressed to judicial discretion
o Evidence marked o The rules also allow the conditional examination of witnesses of both the
o The number of witnesses to be presented and the schedule of the trial defense and prosecution before trial in Secs. 12, 13, and 15 of Rule 119
§ These are akin to discovery procedures in civil cases
PRE-TRIAL ORDER; EFFECT
The Pre-Trial Order shall: Example of an exception (matters not disposed of)
o Bind the parties o Evidence newly discovered
o Limit the trial to matters not disposed of
o Control the course of the action during trial, unless modified by the court to NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL
prevent manifest injustice
Archiving of cases
Q: When should pre-trial order be issued? o The archiving of cases shall be done within the period prescribed under the
A: 10 days after the pre-trial conference Guidelines in the Archiving of Cases under SC Administrative Circular No. 7-
A-92, as restated in OCA Circular No.89-2004.
NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL o A criminal case shall be archived only if
o Pre-trial Order. The Pre-trial Order shall immediately be served upon the parties o after the issuance of the warrant of arrest, the accused remains at
and counsel on the same day after the termination of the pre-trial. large for six (6) months from the delivery of the warrant to the
proper peace officer.
Boomsri Notes: o Such case shall likewise be archived when proceedings therein are
• Pretrial and arraignment are now on the same day. The trial should start within 30 ordered suspended for an indefinite period because:
days after. (a) the accused appears to be suffering from an unsound
o Pre trial order should be on the same day. This is so the accused can mental condition which effectively renders him unable to
sign the admissions in pre-trial. They are only binding on him if his fully understand the charge against him and to plead
signature is thereon. intelligently, or to undergo trial, and he has to be committed
o The order includes date for trial dates for the presentation of to a mental hospital;
prosecution, and of the defense. It will also include promulgation of (b) a valid prejudicial question in a civil action is invoked during
judgment. The latter is included so the accused will be deemed notified the pendency of the criminal case, unless the civil and
of the same. criminal cases are consolidated;
(c) an interlocutory order or incident in the criminal case is
DISCOVERY PROCEDURES IN CRIMINAL CASES elevated to, and IS pending resolution/decision for an
o There is no rule which precludes the use of relevant modes of discovery in indefinite period before a higher court which has issued a
criminal cases

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temporary restraining order or writ of preliminary injunction;
and
(d) when the accused has jumped bail before arraignment and
cannot be arrested by the bondsman.

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CHAPTER 9: RULE 117 (MOTION TO QUASH) o Double jeopardy

SECTION 1: TIME TO MOVE TO QUASH TIME FOR FILING: The motion may be made at any time before the accused enters his plea
At any time before entering his plea, the accused may move to quash the complaint or
information. GENERAL RULE: A motion to quash is not allowed in a summary procedure

CHARACTERISTICS OF A MOTION TO QUASH EXCEPTION: On the ground of lack of jurisdiction over the subject matter or failure to comply
o It is a mode by which an accused assails the validity of a criminal complaint or with barangay conciliation proceedings
information filed against him for insufficiency on its point of law, or for defects o While the failure to comply with the barangay conciliation proceedings is not one
which are apparent in the face of the information of the grounds for a motion to quash, the same should be deemed a special
o It is a hypothetical admission of the facts alleged in the information. The ground for a motion quash applicable only to cases subject to summary procedure
fundamental test in determining the sufficiency of the material averments in an
information is whether or not the facts alleged therein which are hypothetically Boomsri Notes: A pending Motion to Quash cancels/suspension of arraignment set. Ideally,
admitted, would establish the essential elements of the crime defined by law it should be resolved on the same day, but the prosecutor must be heard especially of the
o Evidence aliunde or matters extrinsic of the information are not to be considered. MTQ has merit. Unless, the court denies the MTQ.
To be sure, a motion to quash should be based on a defect in the information
which is evident on its face. SECTION 2: FORM AND CONTENTS
§ Thus, The motion to quash shall be in (1) writing, (2) signed by the accused or his counsel and
• if the defect can be cured by amendment or shall (3) distinctly specify its factual and legal grounds. The court shall consider no ground
• if it is based on the ground that the facts charged do not other than those stated in the motion, except lack of jurisdiction over the offense charged.
constitute an offense,
• the prosecution is given by the court the opportunity The rule does not, from its tenor, permit an oral motion to quash. The motion must comply
to correct the defect by amendment. with the following requisites:
§ If the motion to quash is sustained, the court may order that another o The motion shall be in writing
complaint or information be filed o The motion shall be signed by the accused or his counsel
§ except when the information is quashed on the ground of: o The motion shall distinctly specify the factual and legal grounds thereof
• extinction of criminal liability or
Boomsri Notes: Does not follow general rule on motions which can be filed orally.
• double jeopardy
• a motion to quash based on double jeopardy or DISTINCTIONS BETWEEN MOTION TO QUASH AND DEMURRER TO EVIDENCE
extinction of the criminal action or liability, may, by
their nature, be based on matters outside of the
MOTION TO QUASH DEMURRER TO EVIDENCE
allegations of the information or criminal complaint
Filed before the accused enters a plea Filed after the prosecution rests its case,
and presupposes that the accused has
A motion to quash is an omnibus motion since the rule impliedly requires that all the
already entered his plea and is in fact,
objections available at the time the motion is filed should be invoked.
already going through trial
o The rule instructs that the failure to assert any ground of a motion to quash before
Does not require a prior leave of court May be filed by the accused either with or
a plea to the complaint or information shall be deemed a waiver of any objections.
The failure to assert a ground may either be because: without leave of court
§ The accused did not file a motion to quash Grounds are based on the matters found Ground is insufficiency of evidence;
§ The accused filed a motion to quash but failed to allege the ground in said on the face of the complaint or predicated upon matters outside of the
motion information, as when it is alleged that the complaint or information such as the
facts charged do not constitute an evidence or lack of it
Example: The failure of the accused to interpose objection on the ground of duplicity of the offense or that the complaint or
offense charged in the information constitutes waiver information does not conform to the
prescribed form
GROUNDS NOT WAIVED (OJED) When granted: A dismissal of the case will When granted: Equivalent to a resolution
o That the facts charged do not constitute an offense not necessarily follow; court may even of the case on the merits; amounts to an
o That the court trying the case has no jurisdiction over the offense charged order the filing of a new complaint or acquittal.
o That the criminal action or liability has been extinguished information

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One exception to the rule on jeopardy is 5. It does not conform substantially to the prescribed form
Except when the information is quashed when the prosecution has been denied 6. More than one offense is charged
on the ground of extinction of criminal due process as when the evidence clearly 7. Extinction of criminal liability or action
liability or double jeopardy shows a sham trial where the judgment of 8. Information contains averments which, if true, would constitute a legal excuse or
acquittal has already been predetermined justification
9. Prior conviction, acquittal, dismissal
Another exception is when the trial court
commits grave abuse of discretion in NOT GROUNDS:
granting the accused’s demurrer to o Execution of an affidavit of desistance
evidence § An affidavit of desistance or pardon is not a ground for the dismissal of an
action, once it has been instituted in court
GENERAL RULE: In resolving the motion to quash filed by the accused, the court shall § Recantacions are viewed with suspicion and reservation. The SC looks with
consider no ground other than those stated in the motion disfavor upon retractions of testimonies previously given in court, because it
can easily be secured from witnesses, usually through intimidation or for a
ONLY EXCEPTIONS: Lack of jurisdiction over the offense charged and double jeopardy monetary consideration
• Only when there exist special circumstances in the case which
Q: In what kind of form pwede magfile re: lack of jurisdiction or double jeopardy pag after when coupled with the retraction raise doubts as to the truth
arraignment of the testimony or statement given, can retractions be
A: Motion to dismiss considered and upheld
o Absence of probable cause for the issuance of a warrant of arrest is not a ground
Q: Section 2 contemplates a situation where the motion to quash is filed. The motion to for the quashal of the information but is a ground for the dismissal of the case
quash must contain grounds. What if some grounds accused is entitled to are not included? o Matters of defense
A: Effect is: grounds are not considered (as compared to Section 9, where it says they are § Except: Double jeopardy or extinguishment of the criminal liability
waived) o Absence of preliminary investigation is not a proper ground for a motion to quash
but for a petition for reinvestigation
SECTION 3: GROUNDS
The accused may move to quash the complaint or information on any of the following TEST IN APPRECIATING A MOTION TO QUASH
grounds:
(a) That the facts charged do not constitute an offense;* GROUND: Facts charged to 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; TEST: Sufficiency of the averments in the information; whether the facts alleged, if
(d) That the officer who filed the information had no authority to do so; hypothetically admitted, would establish the essential elements of the offense as defined
(e) That it does not conform substantially to the prescribed form; by law
(f) That more than one offense is charged except when a single punishment
for various offenses is prescribed by law; NOTE: Since Sec. 2 of Rule 117 requires that a motion to quash shall distinctly specify not
(g) That the criminal action or liability has been extinguished;* only its legal but also factual grounds, it is clear that a motion to quash may be based on
(h) That it contains averments which, if true, would constitute a legal excuse or factual and legal grounds, and since extinction of criminal liability and double jeopardy are
justification; and retained as among the grounds for a motion to quash, it necessarily follows that facts
(i) That the accused has been previously convicted or acquitted of the offense outside the information itself may be introduced to prove such grounds
charged, or the case against him was dismissed or otherwise terminated without
his express consent.* REMEDY FROM DENIAL OF A MOTION TO QUASH

*Grounds not waived
GROUNDS (OJJ AFM EAC)
1. Facts charged do not constitute an offense
2. The court trying has no jurisdiction over the offense charged
3. The court trying has no jurisdiction over the person
4. Officer who filed the information had no authority
GENERAL RULE: A petition for certiorari under Rule 65 is not the proper remedy against an
order denying a motion to quash.
o The remedy is for the movant to go to trial without prejudice to reiterating the
special defenses invoked in the motion to quash
EXCEPTION: If the court, denying the motion acts without or in excess of jurisdiction, or with
grave abuse of discretion, then certiorari or prohibition lies

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NOTE: Grounds are exclusive!!!!
SECTION 4: AMENDMENT OF COMPLAINT OR INFORMATION
If the motion to quash is based on an alleged defect of the complaint or information which
can be cured by amendment, the court shall order that an amendment be made.
If it is based on the ground that the facts charged do not constitute an offense, the
prosecution shall be given by the court an opportunity to correct the defect by amendment.
The motion shall be granted if the prosecution fails to make the amendment, or the
complaint or information still suffers from the same defect despite the amendment.
The existence of a valid ground for sustaining a motion to quash will not necessarily result
in the dismissal of the information or complaint
If the motion to quash is based on the alleged defect of the complaint or information, and
the defect can be cured, the court shall order that an amendment be made
If the motion is based on the ground that the facts charged do not constitute an offense,
the court shall give the prosecution an opportunity to correct the defect by amendment.
o However, if despite such opportunity, the prosecution fails to make the
amendment
o Or if despite the amendment, the complaint or information still suffers from
the same defect, the court shall grant the motion
o The court can order the dismissal only upon the prosecution’s failure to do
so
Boomsri Notes: If MTQ is granted, it will cause dismissal, but without prejudice to its filing,
except 2 grounds (double jeopardy and extinction of criminal liability).
SECTION 5: EFFECT OF SUSTAINING THE MOTION TO QUASH
If the motion to quash is sustained, the court may order that another complaint or
information be filed except as provided in section 6 of this rule.
o If the order is made, the accused, if in custody, shall not be discharged unless
admitted to bail.
o If no order is made or if having been made, no new information is filed within the
time specified in the order or within such further time as the court may allow for
good cause, the accused, if in custody, shall be discharged unless he is also in
custody of another charge.
TWO SITUATIONS CONTEMPLATED
1. Motion granted, but court orders the filing of a new information
a. The accused, who may be in custody, shall not be discharged or
released, except if he is admitted to bail
2. Motion granted, and court does not order the filing of a new information, and
no new complaint or information is filed within the time specified in the order
a. The accused, if in custody, shall be discharged, except if he is in
custody for another charge
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SECTION 6: ORDER SUSTAINING THE MOTION TO QUASH NOT A BAR TO ANOTHER
PROSECUTION; EXCEPTION
An order sustaining the motion to quash is not a bar to another prosecution for the same
offense unless the motion was based on the grounds specified in section 3 (g) and (i) of this
Rule.
GENERAL RULE: An order sustaining (granting) a motion to quash is not a bar to another
prosecution to the same offense.
o This means that when a motion to quash is sustained, the court may order
that another complaint or information be filed.
EXCEPTIONS: Extinction of criminal liability or double jeopardy
SECTION 7: FORMER CONVICTION OR ACQUITTAL; DOUBLE JEOPARDY
When an accused has been
(1) (a) convicted or acquitted, or the case against him (b) dismissed or otherwise
terminated without his express consent by a
(2) court of competent jurisdiction, upon a
(3) valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and
(4) after the accused had pleaded to the charge,
the conviction or acquittal of the accused or the dismissal of the case shall be a bar to
another prosecution for the (1) offense charged, or for (2) any attempt to commit the same
or frustration thereof, or for any (3) offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.
However, the conviction of the accused shall not be a bar to another prosecution for an
offense which necessarily includes the offense charged in the former complaint or
information under any of the following instances:
(a) The graver offense developed due to supervening facts arising from the same act
or omission constituting the former charge;
(b) The facts constituting the graver charge became known or were discovered only
after a plea was entered in the former complaint or information; or
(c) The plea of guilty to the lesser offense was made without the consent of
the prosecutor and of the offended party except as provided in section 1(f)
of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part the
judgment, he shall be credited with the same in the event of conviction for the graver
offense.
JEOPARDY: The danger of conviction and punishment which the defendant in a criminal
action incurs when a valid indictment has been found
o The Philippine Constitution does not prohibit placing a person in jeopardy. What it
prohibits is putting an accused in “double jeopardy”
DOUBLE JEOPARDY: Guarantees that the state shall not be permitted to make repeated
attempts to convict an individual for an alleged offense, thereby subjecting him to
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JUDGE BOOMSRI

embarrassment, expense and ordeal and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing that possibility that, even though innocent, he
may be found guilty
o As a criminal law concept, refers to jeopardy of punishment for the same offense,
suggesting that double jeopardy presupposes two separate criminal prosecution
o Res judicata in prison grey
o The right prohibits the prosecution for a crime of which he has been previously
convicted or acquitted
o Presupposes that:
§ A first jeopardy has already attached prior to the second jeopardy
§ The first jeopardy has already been terminated
• Conviction
• Acquittal
• Dismissal/termination without accused’s consent
o No double jeopardy attaches as long as there is variance between the elements of
two offenses charged
o INAPPLICABLE IN:
§ Administrative proceedings
• The principle of double jeopardy finds no application in administrative
cases because all of the elements for its application do not apply in
an administrative case
• It has also been ruled that the dismissal of the criminal case does not
result in the dismissal of the administrative case because there exists
a difference between those two remedies
• The settle ruled is that criminal and civil cases are altogether different
from administrative matters, such that the first two will not inevitably
govern or affect the third and vice versa. Verily, administrative cases
may proceed independently of the criminal proceedings
§ Preliminary investigations
• A preliminary investigation is merely inquisitorial, and it is often the
only means of discovering the persons who may be reasonably
charged with a crime, to enable the fiscal to prepare his complaint or
information
• It is not a trial of the case on the merits and has no purpose except
that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty
therefor, and it does not place the person against whom it is taken in
jeopardy
• It is executive in character and does not contemplate a judicial
function
• It is settled that the dismissal of a case during its preliminary
investigation stage does not constitute double jeopardy since a
preliminary investigation is not part of the trial and is not the occasion
for the full and exhaustive display of the parties’ evidence
NOTE: Res judicata is a doctrine in civil law and, thus, has no bearing on criminal
proceedings even if double jeopardy has been described as “res judicata in prison grey”
REQUISITES OF DOUBLE JEOPARDY (ICAPA)
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1. A valid indictment
2. Before a court of competent jurisdiction
3. Arraignment of the accused
4. Valid plea entered by him
5. The acquittal or conviction of the accused, or the dismissal or termination of the
case against him without his express consent
VALID COMPLAINT OR INFORMATION
o Sufficiency is dependent on whether the same could sustain a conviction
§ A complaint or information which does not comply with these requirements
would not be sufficient in form and substance to sustain a conviction
§ Likewise, the accused will not be placed in jeopardy where the facts alleged
in the complaint or information do not constitute an offense
o If it could not sustain the conviction desired, then the charge is not a valid one
and would preclude double jeopardy
o One could not possibly be in danger of being convicted under a defective
information
§ Jeopardy does not attach where a defendant pleads guilty to a defective
indictment that is voluntarily dismissed by the prosecution
§ Where the officer who filed the information has no authority to do so, the
information is defective and could not sustain a conviction
COURT MUST HAVE COMPETENT JURISDICTION
o For double jeopardy to attach, the court, which rendered a judgment of conviction,
acquittal or which terminated or dismissed the case, must be one vested with
“competent jurisdiction”
§ In this connection, the first jeopardy could not attach if the action is filed in a
court of the place which is not the proper venue for hearing the case
§ Remember, venue in criminal cases is jurisdictional
o There can be no double jeopardy if the accused enters a plea in a court that has
no jurisdiction (i.e. jurisdiction over the subject matter)
o However, take note: The filing of an information with one court which has no
jurisdiction over it does not prevent the prosecution from filing the same
information later with the competent court
§ The only authority the first court can exercise is to dismiss the case for lack
of jurisdiction
ACCUSED SHOULD HAVE VALIDLY PLEADED TO THE CHARGE (SHOULD HAVE BEEN
ARRAIGNED)
o It is settled that the existence of a plea is an essential requisite to double jeopardy
§ For double jeopardy to attach, the plea must be valid
§ In effect, a judgment rendered based on a void plea bargaining, is also void
ab initio and cannot be considered to have attained finality for the simple
reason that a void judgment has no legality from its inception
o It has always been the rule that the accused should have been arraigned and had
pleaded to the charge
§ There is no double jeopardy in the reinstatement of a criminal case dismissed
before arraignment and upon his express motion
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PRIOR CONVICTION, ACQUITTAL, OR DISMISSAL WITHOUT EXPRESS CONSENT
o For the accused to invoke double jeopardy, it must be shown that, in the prior
charge, he had been either convicted or acquitted, or it had been dismissed or
terminated without his express consent
o The rule contemplates that the first jeopardy had been validly terminated and
because of such termination, the accused could no longer be exposed to another
jeopardy
o The rule suggests that when the first case has not yet been terminated, double
jeopardy cannot be invoked in a subsequent prosecution for the same offense
o The mere filing of two informations or complaints charging the same offense does
not yet afford the accused in those cases the occasion to complain that he is being
placed in jeopardy twice for the same offense
ACQUITTAL
o The verdict of acquittal is immediately final and a reexamination of the merits of
such acquittal, even in the appellate courts, will put the accused in jeopardy for the
same offense
FINALITY-OF-ACQUITTAL DOCTRINE: An acquittal rendered by a court of competent
jurisdiction after trial on the merits is immediately final and cannot be appealed because
of double jeopardy
o The State is proscribed from appealing the judgment of acquittal through either a
regular appeal under Rule 41 or an appeal by certiorari on pure questions of law
under Rule 45 of the same Rules
PURPOSES
o Prevents the State from using its criminal processes as an instrument of
harassment to wear out the accused by a multitude of cases with accumulated
trials
o Precludes the State, following an acquittal, from successively retrying the
defendant in the hope of securing a conviction
o Prevents the State, following conviction, from retrying the defendant again in the
hope of securing a greater penalty
EXCEPTIONS
o Deprivation of due process and where there is a finding of mistrial
§ It is a settled doctrine that double jeopardy cannot be invoked against the
setting aside of the trial courts’ judgment of dismissal or acquittal where
the prosecution, which represents the sovereign people in criminal cases,
is denied due process
o There has been a grave abuse of discretion under exceptional circumstances
Note: The proscription against double jeopardy only envisages appeals based on errors of
judgment, but not errors of jurisdiction
The State, by jurisprudential fiat, may assail the acquittal by a special civil action of
certiorari under Rule 65, when the court that absolved the accused gravely abused its
discretion, resulting in loss of jurisdiction, or when a mistrial has occurred
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o A judgment rendered with grave abuse of discretion, or without due process of
law is void, does not exist in legal contemplation and thus, cannot be the source
of an acquittal
o A review under Rule 65 only asks the question of whether there has been a
validly rendered decision, not the question of whether the decision is legally
correct
o The petitioner in such an extraordinary proceeding must clearly demonstrate
that the trial court blatantly abused its authority to a point so grave as to deprive
it of its very power to dispense justice
o The rationale behind this exception is that a judgment rendered by the trial court
with grave abuse of discretion was issued without jurisdiction and, for this
reason, the judgment is void. Consequently, there is no double jeopardy
o The finality-of-acquittal doctrine does not apply when the judgment of acquittal
is reviewed via this special civil action
DISMISSAL OR TERMINATION WITHOUT THE EXPRESS CONSENT OF THE ACCUSED
GENERAL RULE: A dismissal or termination of the case WITH the express consent of the
accused will not prevent another prosecution for the same offense
o The motion by the accused which indicates express consent operates as a
waiver of his constitutional right against double jeopardy for the reason that he
effectively prevents the trial court from proceeding to trial on the merits and
rendering a judgment of conviction against him
o The SC stressed that a waiver of the constitutional right against double jeopardy
must be clear, categorical, knowing and intelligent
o Corollary to this rule, the alleged conditions attached to an arraignment must be
unmistakable, express, informed and enlightened; otherwise, the plea should
be deemed to be simple and unconditional
Example: A provisional dismissal under Sec. 8 of Rule 117 is not the equivalent of an
acquittal because the dismissal is with the express consent of the accused
EXCEPTIONS (will tantamount to double jeopardy)
o Dismissal is predicated on insufficiency of evidence (Demurrer to Evidence)
o Dismissal is predicated on denial of the right to speedy trial
§ The invocation of the right to speedy trial should be preceded by insisting
on a trial
o Dismissal upon motion of the accused because the prosecution was not
prepared for trial
§ Even if the accused, after invoking their right to a speedy trial, moves for
dismissal of the case (therefore consents to it), the dismissal would still
place them in jeopardy
o Discharge of an accused to be a state witness
§ XPN to the XPN: The accused fails or refuses to testify against his co-
accused in accordance with his sworn statement constituting the basis
for his discharge.
§ The discharge of the accused to be a state witness requires his consent
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Summary:
GR: Double jeopardy CANNOT be invoked if dismissal is WITH consent of accused
XPNs: Double jeopardy CAN still be invoked in the ff. instances despite being dismissal with
consent:
• Denial of the right to speedy trial
• Demurrer to evidence
• Discharge to be state witness
NOTE: The use of the word “provisional” would not change the legal effect of the dismissal
APPEAL BY THE ACCUSED: The accused may appeal from a judgment of conviction but when
the accused appeals from the sentence of the trial court, he waives his right to the
constitutional safeguard against double jeopardy and throws the whole case open to review
by the appellate court
o When an accused files or consents to the filing of a MR or modification of the
judgment against him, double jeopardy cannot be invoked by him because by
filing the motion, he waived his right not to be placed in double jeopardy
o The motion gives the court an opportunity to rectify its errors or to reevaluate its
assessment of facts and conclusions of law and make them conformable with
the statute applicable to the case in the new judgment it has to render
EFFECT OF DOUBLE JEOPARDY ON THE CIVIL ASPECT OF THE CASE
o The acquittal of the accused does not affect the right of the offended party
to appeal the civil aspect of the case
o The offended party and the accused may appeal the civil aspect of a
judgment because the concept of double jeopardy, evidently, has reference
only to a criminal case and has no effect on the civil liability of the accused
o Thus, in the same vein, the extinction of the criminal liability will not
necessarily give rise to the extinction of the civil liability
DOUBLE JEOPARDY IN QUASI OFFENSES
o The doctrine is that reckless imprudence under Art. 365 is a single quasi-
offense by itself and not merely a means to commit other crimes
o Hence, conviction or acquittal of such quasi-offense bars subsequent
prosecution for the same quasi-offense regardless of its various resulting
acts
o The law penalizes the negligent or careless act and not the result thereof
o As the careless act is single, whether the injurious result should affect one
person or several persons, the offense (criminal negligence) remains one and
the same, and cannot be split into different crimes and prosecutions
WHEN DOUBLE JEOPARDY SHALL NOT APPLY DESPITE A PRIOR CONVICTION
o The graver offense developed due to supervening facts arising from the same act
or omission constituting the former charge
§ Ex. Accused is convicted of serious physical injuries but after the
conviction, the victim died as a result of the very same injuries for which
the accused was convicted, double jeopardy cannot be raised as a
defense in the prosecution for a graver offense
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o The facts constituting the graver charge became known or were discovered
only after a plea was entered in the former complaint or information
o The plea of guilty to a lesser offense was made without the consent of the
prosecutor and of the offended party except as otherwise provided in Sec.
1(f) of Rule 116
If the accused has already served, in whole or in part, the judgment under the previous
complaint or information, he shall be credited with the same in the event of conviction for
the graver offense
Note: These are exceptions to the general rule that double jeopardy precludes another
prosecution for the offense charged, for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily included in the
offense charged
SAME OFFENSE
o Means the offense charged, or
o An attempt to commit it or a frustrated stage thereof, or
o “Any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information”
The same criminal act may give rise to two or more separate and distinct offenses.
o No double jeopardy attaches as long as there is a variance between the
elements of the two offenses charged
o Prosecution of the same act is not prohibited. What is forbidden is
prosecution for the same offense
EXAMPLES OF IDENTICAL ACTS BUT CONSTITUTE DIFFERENT OFFENSES
o Theft of electricity under the RPC and violation of PD 401
o Illegal recruitment and estafa
o Violation of BP 22 and estafa
o Direct bribery defined and punished under Art. 210 of the RPC and those of
violations of Sec. 3(b) of RA 3019
o Note: it’s usually RPC + SPL
An offense charged necessarily includes that which is proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or information, constitute
the latter.
An offense charged is necessarily included in the offense proved when the essential
ingredients of the former constitute or form a part of those constituting the latter.
SECTION 8: PROVISIONAL DISMISSAL
A case shall not be provisionally dismissed except with the express consent of the accused
and with notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment not exceeding six (6)
years or a fine of any amount, or both, shall become permanent one (1) year after issuance
of the order without the case having been revived.
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o With respect to offenses punishable by imprisonment of more than six (6) years,
their provisional dismissal shall become permanent two (2) years after issuance
of the order without the case having been revived.
PROVISIONAL DISMISSAL: Contemplates that the dismissal of the criminal action is not
permanent and can be revived within the period set by the Rules.
o A mere provisional dismissal of a criminal case does not terminate a criminal case
REQUISITES FOR APPLICATION OF THE “TIME-BAR” RULE [2nd par]
o There must be express consent of the accused
o There must be notice to the offended party
Without such requisites, the dismissal will not trigger the operation of the “time-bar” rule.
The case may thus, be revived even after the periods stated in the Rule, subject of course
to the defense of prescription or the defense of double jeopardy, if applicable.
The provisional dismissal of a case does not operate as an acquittal
o Because such dismissal was made with the express consent of the accused, thus
there is no double jeopardy
o The requirement that there be an express consent of the accused is obviously
intended to prevent any objection based on the rule on double jeopardy when the
provisionally dismissed case is revived
WHEN PROVISIONAL DISMISSAL BECOMES PERMANENT
o Offenses punishable by imprisonment not exceeding six years or a fine of any
amount, or both
o When the case is not revived within one year after the issuance of the
order of provisional dismissal
o Offenses punishable by imprisonment of more than six years
o When the case is not revived within two years after the issuance of the
order of provisional dismissal
REMEMBER: The period shall be reckoned from the issuance of the order of dismissal
The time-bar rule does not reduce the periods under Art. 90 of the RPC, which is a
substantive law
o It is but a limitation of the right of the State to revive a criminal case against the
accused after the Information had been filed but subsequently provisionally
dismissed with the express consent of the accused
EFFECT:
Upon the lapse of the timeline under said rule, the State is presumed to have abandoned
or waived its right to revive the case and prosecute the accused
o The dismissal becomes ipso facto permanent
o The accused can no longer be charged anew for the same crime or another
crime necessarily included therein
o XPN: There is a justifiable necessity for the delay
NEW ADDITIONAL RULES ON PROVISIONAL DISMISSAL
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SECTION 9: FAILURE TO MOVE TO QUASH OR TO ALLEGE ANY GROUND THEREFORE
The failure of the accused to assert any ground of a motion to quash before he pleads to
the complaint or information, either because he (1) did not file a motion to quash or (2)
failed to allege the same in said motion, shall be deemed a waiver of any objections except
those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of
this Rule.
Section 9 v. Section 2
o Section 9 talks about waiver as compared to Section 2 which only states it
won’t be considered
o Deemed waiver (if the person does not file these, waived) except
§ That the facts charged do not constitute an offense;
§ That the court trying the case has no jurisdiction over the offense
charged;
§ That the criminal action or liability has been extinguished;
§ 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.
o Section 9 in one way expands Section 2, because provides 2 grounds only
but in Section 9, 4 grounds
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o When 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 compliance with the prescribed time
limits which caused the trial to exceed 180 days, the court shall provisionally
dismiss the action with the express consent of the detained accused
o 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 accused provided:
§ The hearing of the case has 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
§ There is proof of service of the pertinent notice of hearings or subpoenas
upon the essential witness and the offended party at their last known
postal or e-mail addresses or mobile numbers
o 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
WITHDRAWAL OF INFORMATION MOTION TO DISMISS
The order granting such attains finality The order granting such becomes final 15
after 15 days from receipt thereof, days after receipt thereof, with prejudice
without prejudice to the re-filing of the to the re-filing of the same case once such
information upon reinvestigation order attains finality
Not time-barred Puts into place the time-bar rule on
provisional dismissal
The rule on provisional dismissal does not apply to a motion to withdraw an information
DEAN VANNIE: In usual practice, provisional dismissal is sought by the accused in open
court. Normally, a prosecutor is present. The prosecutor agrees or is notified when motion
is made. When granted in open court, there is no need to start counting from the time he is
notified of the order. He is deemed notified in open court.
NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL
o Revival of provisionally dismissed cases shall conform to the requisites and
the periods provided for under Sec. 8, Rule 117.
o Provisional dismissal of offenses punishable by imprisonment not exceeding
six (6) years or a fine of any amount or both shall become permanent one (1)
year after issuance of the order without the case having been revived.
o Provisional dismissal of offenses punishable by imprisonment of more than
six (6) years, shall become permanent two (2) years after the issuance of the
order without the case having been revived.
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TRIAL AND DEMURRER TO EVIDENCE (RULE 119)
SECTION 1: TIME TO PREPARE FOR TRIAL
After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to
prepare for trial. The trial shall commence within thirty (30) days from receipt of the pre-trial
order.
WHEN TRIAL SHALL COMMENCE
o Not later than 30 days from the termination of the pre-trial conference
o Revised Guidelines: Trial should be 30 days from the arraignment and pre-trial
day.
SECTION 2: CONTINUOUS TRIAL UNTIL TERMINATED; POSTPONEMENTS
Trial once commenced shall continue from day to day as far as practicable until terminated.
It may be postponed for a reasonable period of time for good cause.
The court shall, after consultation with the prosecutor and defense counsel, set the case
for continuous trial on a weekly or other short-term trial calendar at the earliest possible
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 Supreme
Court.
The time limitations provided under this section and the preceding section shall not apply
where special laws or circulars of the Supreme Court provide for a shorter period of trial.
CONTINUOUS TRIAL
RULE: 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 good cause.
o The court shall set the case for continuous trial on a weekly or other short-term
trial calendar at the earliest possible time. The court shall do so after consultation
with the prosecutor and defense counsel
TRIAL PERIOD
o In no case shall it exceed 180 days from the first day of trial, except as otherwise
authorized by the Supreme Court
EXCEPTIONS TO THE RULE:
o Exclusions under Section 3
o Laws requiring shorter periods
NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL
o Motion for postponement is prohibited
§ Except if it is based on acts of God, force majeure or physical inability of
the witness to appear and testify
§ If the motion is granted based on such exceptions, the moving party shall
be warned that the presentation of its evidence must still be finished on
the dates previously agreed upon.
o A motion for postponement, whether written or oral, shall at all times be
accompanied by the original official receipt from the Office of the Clerk of Court
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evidencing payment of the postponement fee under Sec. 21 (b), Rule 141, to be
submitted either at the time of the filing of said motion or not later than the next
hearing date. The Clerk of Court shall not accept the motion unless accompanied
by the original receipt.
SECTION 3: EXCLUSIONS
The following periods of delay shall be excluded in computing the time within which trial
must commence:
(a) Any period of delay resulting from other proceedings concerning the accused,
including but not limited to the following:
(1) Delay resulting from an examination of the physical and mental
condition of the accused;
(2) Delay resulting from proceedings with respect to other criminal
charges against the accused;
(3) Delay resulting from extraordinary remedies against interlocutory
orders;
(4) Delay resulting from pre-trial proceedings; provided, that the delay
does not exceed thirty (30) days;
(5) Delay resulting from orders of inhibition, or proceedings relating to
change of venue of cases or transfer from other courts;
(6) Delay resulting from a finding of existence of a prejudicial question;
and
(7) Delay reasonably attributable to any period, not to exceed thirty
(30) days, during which any proceeding concerning the accused is
actually under advisement.
(b) Any period of delay resulting from the absence or unavailability of an
essential witness.
For purposes of this subparagraph, an essential witness shall be considered
absent when his whereabouts are unknown or his whereabouts cannot be
determined by due diligence. He shall be considered unavailable whenever his
whereabouts are known but his presence for trial cannot be obtained by due
diligence.
(c) Any period of delay resulting from the mental incompetence or physical
inability of the accused to stand trial.
(d) If the information is dismissed upon motion of the prosecution and thereafter
a charge is filed against the accused for the same offense, any period of delay
from the date the charge was dismissed to the date the time limitation would
commence to run as to the subsequent charge had there been no previous
charge.
(e) A reasonable period of delay when the accused is joined for trial with a co-
accused over whom the court has not acquired jurisdiction, or, as to whom the
time for trial has not run and no motion for separate trial has been granted.
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(f) Any period of delay resulting from a continuance granted by any court motu
proprio, or on motion of either the accused or his counsel, or the prosecution, if
the court granted the continuance on the basis of its findings set forth in the order
that the ends of justice served by taking such action outweigh the best interest of
the public and the accused in a speedy trial.
WHEN DELAY OR SUSPENSION OF TRIAL IS JUSTIFIED BY REASON OF THE ABSENCE OF A
WITNESS
o The rule describes such witness as an “essential” witness
§ Essential – indispensable, necessary or important in the highest degree
ABSENCE UNAVAILABILITY
Whereabouts are unknown; whereabouts A witness shall be considered
cannot be determined by due diligence unavailable, even if his whereabouts are
known, provided that his presence for the
trial cannot be obtained by due diligence
o When 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 compliance with the prescribed time limits which caused the trial to
exceed 180 days, the court shall provisionally dismiss the action with the express
consent of the detained accused
o 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 accused provided:
§ The hearing of the case has 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
§ There is proof of service of the pertinent notice of hearings or subpoenas upon the
essential witness and the offended party at their last known postal or e-mail
addresses or mobile numbers
SECTION 4: FACTORS FOR GRANTING CONTINUANCE
The following factors, among others, shall be considered by a court in determining whether
to grant a continuance under section 3(f) of this Rule.
(a) Whether or not the failure to grant a continuance in the proceeding would likely
make a continuation of such proceeding impossible or result in a miscarriage of
justice; and
(b) Whether or not the case taken as a whole is so novel, unusual and complex,
due to the number of accused or the nature of the prosecution, or that it is
unreasonable to expect adequate preparation within the periods of time
established therein.
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In addition, no continuance under section 3(f) of this Rule shall be granted because of
congestion of the court’s calendar or lack of diligent preparation or failure to obtain
available witnesses on the part of the prosecutor.
POSTPONEMENT OR CONTINUANCE
A continuance may be granted if continuing the proceeding is impossible or would result in
a miscarriage of justice
FACTORS TO BE CONSIDERED IN GRANTING CONTINUANCES
o Whether or not the failure to grant such would likely make a continuation of such
proceeding impossible or result in a miscarriage of justice
o Whether or not the case, taken as a whole, is so novel, unusual and complex, due
to:
o the number of accused or
o nature of the prosecution, or
o that it is unreasonable to expect adequate preparation within the
periods of time established therein
PROHIBITED GROUNDS FOR A CONTINUANCE
o Congestion of the court’s calendar
o Lack of diligent preparation
o Failure to obtain available witnesses on the part of the prosecutor
EXAMPLE
o Maguindanao massacre (case is complex)
SECTION 5: TIME LIMIT FOLLOWING AN ORDER FOR NEW TRIAL
If the accused is to be tried again pursuant to an order for a new trial, the trial shall
commence within thirty (30) days from notice of the order,
o provided that if the period becomes impractical due to unavailability of witnesses
and other factors, the court may extend but not to exceed one hundred eighty
(180) days.
o For the second twelve-month period, the time limit shall be one hundred eighty
(180) days from notice of said order for new trial.
Q: Must the court write to the court administrator for an extension? Or can the court just
put it on the record?
A: The court will include in his report extensions of period, but the more prudent thing to do
is to ask for an extension.
SECTION 6: EXTENDED TIME LIMIT
Notwithstanding the provisions of section 1(g), Rule 116 and the preceding section 1, for
the first twelve-calendar-month period following its effectivity on September 15, 1998, the
time limit with respect to the period from arraignment to trial imposed by said provision
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 shall be eighty (80) days.
Diff of this and Section 1? The 30 days in Section 1 is included in the 80 days of this section.
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SECTION 7: PUBLIC ATTORNEY’S DUTIES WHERE ACCUSED IS IMPRISONED
If the public attorney assigned to defend a person charged with a crime knows that the
latter is preventively detained, either because he is charged (1) with a bailable crime but
has no means to post bail, or, is charged (2) with a non-bailable crime, or, (3) is serving a
term of imprisonment in any penal institution, it shall be his duty to do the following:
(a) Shall promptly undertake to obtain the presence of the prisoner for trial or cause
a notice to be served on the person having custody of the prisoner requiring such
person to so advise the prisoner of his right to demand trial.
(b) Upon receipt of that notice, the custodian of the prisoner shall promptly advise
the prisoner of the charge and of his right to demand trial. If at any time thereafter
the prisoner informs his custodian that he demands such trial, the latter shall
cause notice to that effect to be sent promptly to the public attorney.
(c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the
presence of the prisoner for trial.
(d) When the custodian of the prisoner receives from the public attorney a properly
supported request for the availability of the prisoner for purpose of trial, the
prisoner shall be made available accordingly.
Not available when accused is represented by private counsel
SECTION 8: SANCTIONS
In any case in which private counsel for the accused, the public attorney, or the prosecutor:
(a) Knowingly allows the case to be set for trial without disclosing that a necessary
witness would be unavailable for trial;
(b) Files a motion solely for delay which he knows is totally frivolous and
without merit;
(c) Makes a statement for the purpose of obtaining continuance which he knows
to be false and which is material to the granting of a continuance; or
(d) Willfully fails to proceed to trial without justification consistent with the
provisions hereof, the court may punish such counsel, attorney, or prosecutor, as
follows:
(1) By imposing on a counsel privately retained in connection with the
defense of an accused, a fine not exceeding twenty thousand pesos
(P20,000.00);
(2) By imposing on any appointed counsel de officio, public attorney, or
prosecutor a fine not exceeding five thousand pesos (P5,000.00); and
(3) By denying any defense counsel or prosecutor the right to practice
before the court trying the case for a period not exceeding thirty (30)
days. The punishment provided for by this section shall be without
prejudice to any appropriate criminal action or other sanction authorized
under these rules.
SECTION 9: REMEDY IF THE ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE TIME LIMIT
If the accused is not brought to trial within the time limit required by Section 1(g), Rule 116
and Section 1, as extended by Section 6 of this Rule, the information may be dismissed on
motion of the accused on the ground of denial of his right to speedy trial.
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o The accused shall have the burden of proving the motion, but the prosecution
shall have the burden of going forward with the evidence to establish the exclusion
of time under section 3 of this rule.
o The dismissal shall be subject to the rules on double jeopardy.
Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the
right to dismiss under this section.
EFFECT OF NOT BRINGING THE ACCUSED TO TRIAL WITHIN THE PRESCRIBED PERIOD
o The information may be dismissed upon motion of the accused
§ The motion for dismissal must be made prior to trial; otherwise failure
to do so shall be deemed a waiver
§ The accused shall have the burden of proving the ground for his motion
§ Meanwhile, the prosecutor shall have the burden of going forward with
the evidence to establish that delay belongs to the exclusion of time
mentioned in Sec. 3
GROUND FOR DISMISSAL: The denial of his right to a speedy trial
NOTE: In case of dismissal on the ground of denial of the right to speedy trial, the dismissal
shall be subject to the rules on double jeopardy
SECTION 10: LAW ON SPEEDY TRIAL NOT A BAR TO PROVISION ON SPEEDY TRIAL IN THE
CONSTITUTION
No provision of law on speedy trial and no rule implementing the same shall be interpreted
as a bar to any charge of denial of the right to speedy trial guaranteed by Section 14(2),
Article III, of the 1987 Constitution.
Accused may still invoke his right to speedy trial under the Constitution when his motion to
dismiss on grounds of denial to speedy trial is denied.
SECTION 11: ORDER OF TRIAL
The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge and, in the proper
case, the civil liability.
(b) The accused may present evidence to prove his defense and damages, if any,
arising, from the issuance of a provisional remedy in the case.
(c) The prosecution and the defense may, in that order, present rebuttal and sur-
rebuttal evidence unless the court, in furtherance of justice, permits them to
present additional evidence bearing upon the main issue.
(d) Upon admission of 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.
(e) When the accused admits the act or omission charged in the complaint or
information but interposes a lawful defense, the order of trial may be modified.
ORDER OF TRIAL
The trial shall proceed in the following order:
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o The prosecution shall present its evidence first (presentation of “evidence-in-
chief”)
§ To prove the charge
§ To prove the civil liability in the proper case
o The accused may then present his evidence to prove his defense and the
damages he sustained, if any, arising from the issuance of a provisional remedy
in the case
o The prosecution may present its rebuttal evidence, unless the court allows it to
present additional evidence bearing on the main issue
o The accused may present sur-rebuttal evidence, unless the court allows him to
present additional evidence bearing on the main issue
o Upon submission of the evidence of the parties, the case shall be deemed
submitted for decision, unless the court directs them to argue orally or to submit
written memoranda
MODIFICATION OF ORDER OF TRIAL; REVERSE TRIAL
Order may be modified when the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense
NOTE: REVISED GUIDELINES ON CONTINUOUS TRIAL
Procedure for First Level Courts (MTC)
o In all criminal cases, including those covered by the Rule on Summary Procedure,
the testimonies of witnesses shall consist of
o the duly subscribed written statements given to law enforcement or
peace officers or
o the affidavits or counter-affidavits submitted before the investigating
prosecutor, and
o if such are not available, testimonies shall be in the form of judicial
affidavits, subject to additional direct and cross-examination questions
o The trial prosecutor may dispense with the sworn written statements submitted
to the law enforcement or peace officers and prepare the judicial affidavits of the
affiants or modify or revise the said sworn statements before presenting it as
evidence.
Procedure for Second Level Courts (RTC), Sandiganbayan and CTA
o In criminal cases where the demeanor of the witness is not essential in
determining the credibility of said witness,
o such as forensic chemists, medico-legal officers, investigators, auditors,
accountants, engineers, custodians, expert witnesses and other similar
witnesses,
o who will testify on the authenticity, due execution and the contents of
public documents and reports, and
o in criminal cases that are transactional in character,
o such as falsification, malversation, estafa, or other crimes where the
culpability or innocence of the accused can be established through
documents,
o the testimonies of the witnesses shall be
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o the duly subscribed written statements given to law enforcement or
peace officers or
o the affidavits or counter-affidavits submitted before the investigating
prosecutor, and
o if such are not available, testimonies shall be in the form of judicial
affidavits, subject to additional direct and cross-examination questions.
o In all other cases where the culpability or the innocence of the accused is based
on the testimonies of the alleged eyewitnesses, the testimonies of these
witnesses shall be in oral form.
Absence of counsel de parte
o In the absence of the counsel de parte, the hearing shall proceed upon
appointment by the court of a counsel de officio
Boomsri Notes:
o Any counsel present in the courtroom may serve or be appointed as Counsel de
Oficio
Offer of evidence
o The offer of evidence, the comment/objection thereto, and the court ruling thereto
shall be made orally.
o A party is required to make his/her oral offer of evidence on the same
day after the presentation of his/her last witness, and
o the opposing party is required to immediately interpose his/her oral
comment/objection thereto.
o Thereafter, the court shall make a ruling on the offer of evidence in open
court.
o In making the offer, the counsel shall cite the specific page numbers of the court
record where the exhibits being offered are found, if attached thereto. The court
shall ensure that all exhibits offered are submitted to it on the same day of the
offer.
o If the exhibits are not attached to the record, the party making the offer must
submit the same during the offer of evidence in open court.
Presentation of Rebuttal and Sur-rebuttal Evidence
o If the court grants the motion to present rebuttal evidence, the prosecution shall
immediately proceed with its presentation after the accused had rested his/her
case, and orally rest its case in rebuttal after the presentation of its last rebuttal
witness.
o Thereafter, the accused shall immediately present sur-rebuttal evidence, if there
is any, and orally rest the case in sur-rebuttal after the presentation of its last sur-
rebuttal witness.
o Thereafter, the court shall submit the case for decision.
Boomsri Notes:
• How do you do present evidence during trial under the Revised Guidelines?
o In MTC, it’s simple. You allow affidavits, complaint-affidavit, affidavit of
arrest of officers who assisted you when the incident happened, counter
affidavits of witnesses who will later on be accused.
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§ Only requirement: the affidavit should be submitted before the
investigating prosecutor (office of the city prosecutor).
o If you do not want to make use of those documents, (you have the
choice) that’s the time you make use of judicial affidavits. The affidavits
can now just be documentary evidence.
o See Revised Guidelines.
• Note that the argument that evidence not identified during pre-trial cannot be
presented is only applicable for evidence-in-chief.
o This cannot be invoked in rebuttal/sur-rebuttal because rebuttal/sur-
rebuttal is discretionary on the court.
o Rebuttal: is made by the prosecution to rebut the evidence in chief of
the defense.
o Sur-Rebuttal: is made by the accused.
SECTION 12: APPLICATION FOR EXAMINATION OF WITNESS FOR ACCUSED DURING TRIAL
When the accused has been held to answer for an offense, he may, upon motion with notice
to the other parties, have witnesses conditionally examined in his behalf. The motion shall
state:
(a) the name and residence of the witness;
(b) the substance of his testimony; and
(c) that the witness is
o sick or infirm as to afford reasonable ground for believing that he will not
be able to attend the trial, or
o resides more than one hundred (100) kilometers from the place of trial
and has no means to attend the same, or
o that other similar circumstances exist that would make him unavailable
or prevent him from attending the trial.
The motion shall be supported by an affidavit of the accused and such other evidence as
the court may require.
Q: Is the procedure same as in a trial?
A: No.
Q: Is it necessary for the prosecution to be present?
A: No, provided that the prosecution has been given notice.
SECTION 13: EXAMINATION OF DEFENSE WITNESS; HOW MADE
If the court is satisfied that the examination of a witness for the accused is necessary, an
order shall be made directing that the witness be examined at a specific date, time and
place and that a copy of the order be served on the prosecutor at least three (3) days before
the scheduled examination.
The examination shall be taken before
o a judge, or,
o if not practicable, a member of the Bar in good standing so designated by the
judge in the order, or
o if the order be made by a court of superior jurisdiction, before an inferior court to
be designated therein.
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On the other hand, the witness or the prosecution may be conditionally examined when it
satisfactorily appears that a witness for the prosecution is
o too sick or inform to appear at the trial as directed by the court, or
o has to leave the Philippines with no definite date of returning
• In Sec. 15, the conditional examination of a witness for the prosecution is to be
done before the court where the case is pending
• Since the provision specifies before whom the examination is to be done, said
examination must take place at no other place than the court where the case is
pending.
o It cannot therefore, be taken outside the Philippines.
o The rule is designed for the protection of the right of the accused to
confront his witnesses.
• Also, the conditional examination of a prosecution witness cannot defeat the
rights of the accused to public trial and confrontation of witnesses
Boomsri Notes:
• The rules on subpoena apply wherein the witness can be examined if he or she
resides more than 100 km
• The examination of the prosecution witness is more stringent than that of the
accused’s witness because it guarantees the right of the accused to face the
witness against him
SECTION 16: TRIAL OF SEVERAL ACCUSED
When two or more accused are jointly charged with an offense, they shall be tried jointly
unless the court, in its discretion and upon motion of the prosecutor or any accused, orders
separate trial for one or more accused.
SECTION 17: DISCHARGE OF ACCUSED TO BE A STATE WITNESS
(1) When two or more persons are jointly charged with the commission of any offense, upon
motion of the prosecution before resting its case, (2) the court may direct one or more of
the accused to be discharged with their consent so that they may be witnesses for the state
when, after requiring the prosecution to present evidence and the sworn statement of each
proposed state witness at a hearing in support of the discharge, (3) the court is satisfied
that:
(a) There is absolute necessity for the testimony of the accused whose discharge
is requested;
(b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material
points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral
turpitude.
Evidence adduced in support of the discharge shall automatically form part of the trial. If
the court denies the motion for discharge of the accused as state witness, his sworn
statement shall be inadmissible in evidence.
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The examination shall proceed notwithstanding the absence of the prosecutor provided he
was duly notified of the hearing. A written record of the testimony shall be taken.
Under Sec. 13 of Rule 119, the necessity of the conditional examination of the witnesses
for the accused must be shown to the satisfaction of the court
o The justifications are under Sec. 12 of Rule 119
o That the witness is sick or infirm as to afford reasonable ground to
believe that he will not be able to attend the trial; or
o That he resides more than 100 km from the place of trial and has no
means to attend the same; or
o That similar circumstances exist that would make him unavailable or
prevent him from attending the trial
Boomsri Notes:
• Rule 23, § 4, regarding depositions applies to the examination of defense
witnesses
SECTION 14: BAIL TO SECURE APPEARANCE OF MATERIAL WITNESS
When the court is satisfied, upon (1) proof or (2) 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. Upon refusal to post bail, the court shall commit him to
prison until he complies or is legally discharged after his testimony has been taken.
HOW TO SECURE APPEARANCE OF MATERIAL WITNESS
o Either party may, upon motion, secure an order from the court for a material
witness to post bail for such sum as may be deemed proper, if the court is satisfied
upon either (a) proof, or (b) oath that a material witness will not testify when
required
o If the witness refuses to post bail, the court shall commit him to prison until he
complies or is legally discharged after his testimony taken
Q: What if the witness is a citizen of another country? It just so happened when the crime
was committed, he was around?
A: This provision may apply
SECTION 15: EXAMINATION OF WITNESS FOR THE PROSECUTION
When it is satisfactorily appears that a witness for the prosecution is
(1) too sick or infirm to appear at the trial as directed by the court, or
(2) has to leave the Philippines with no definite date of returning,
he may forthwith be conditionally examined before the court where the case is pending.
Such examination, in the presence of the accused, or
o in his absence after reasonable notice to attend the examination has been served
on him,
o shall be conducted in the same manner as an examination at the trial.
o Failure or refusal of the accused to attend the examination after notice shall be
considered a waiver.
o The statement taken may be admitted in behalf of or against the accused.
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DISCHARGE OF ACCUSED TO BE A STATE WITNESS
o When two or more accused are jointly charged for an offense, they shall be tried
jointly, unless the court, in its discretion, and upon motion of the prosecutor
orders a separate trial for one or more accused
o One or more of the accused tried jointly with the others may, however, be
discharged with their consent so that they may be witnesses for the state. For this
purpose, the prosecutor shall comply with the following:
o File a motion for the discharge of the accused
o File the motion before the prosecution rests its case
o The court, upon receipt of the motion, shall require the prosecution to present
evidence and the sworn statement of each proposed state witness. The court shall
conduct a hearing in support of the discharge
REQUISITES FOR DISCHARGE
In the discharge of an accused in order that he may be a state witness, the following
conditions must be present:
o Two or more accused are jointly charged with the commission of an offense
o The motion for discharge is filed by the prosecution before it rests its case
o The prosecution is required to present evidence and the sworn statement of
each proposed state witness at a hearing in support of the discharge
o The accused gives his consent to be a state witness
o The trial court is satisfied that: (NDCGM)
a. There is absolute necessity for the testimony of the accused whose
discharge is requested
b. There is no other direct evidence available for the proper prosecution of
the offense committed, except the testimony of said accused
c. The testimony of said accused can be substantially corroborated in its
material points
d. Said accused does not appear to be the most guilty
e. Said accused has not at any time been convicted of any offense
involving moral turpitude.
NOTE: Because of the requirements in letters a & b, a discharge of an accused to be a state
witness is not proper when the testimony of the witness is merely corroborative
FURTHER NOTE: A state witness does not need to be found to be the least guilty; instead,
he or she should “not appear the most guilty”
FURTHER NOTE: The decision to employ the accused as a state witness must necessarily
originate from the public prosecutors.
ADDITIONAL NOTE: Republic Act No. 6981
o Any person who is discharged as a State Witness may be admitted to Witness
Protection Program, provided:
(a) the offense in which his testimony will be used is a grave felony as
defined under the Revised Penal Code or its equivalent under special
laws;
(b) there is absolute necessity for his testimony;
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JUDGE BOOMSRI
(c) there is no other direct evidence available for the proper prosecution
of the offense committed:
(d) his testimony can be substantially corroborated on its material
points;
(e) he does not appear to be most guilty; and
(f) he has not at any time been convicted of any crime involving moral
turpitude.
o Also, he or she, and/or members of the family within the second civil degree of
consanguinity or affinity is subjected to threats or likelihood that he or she will be
killed
o As well as the fact that he or she is not a law enforcement officer
o In such case, only the immediate family may avail of protection
EVIDENCE ADDUCED DURING THE DISCHARGE HEARING
o Evidence adduced in support of the discharge shall automatically form part of the
trial
o If the court denies the motion for discharge, his sworn statement shall be
inadmissible as evidence
NOTE: Technically, his testimony can be used against him if he is not yet discharged
o Because of this, the accused cannot be convicted of the offense charged, or
any other offense necessarily included therein
REMEDY: The court shall order the filing of a new information
o Upon filing, the court shall dismiss the original case and shall commit the
accused to answer for the proper offense.
o The accused shall not be discharged if there appears good cause to detain
him
Q: When is substitution not allowed?
A: When case is terminated as the accused will be placed in double jeopardy
SECTION 20: APPOINTMENT OF ACTING PROSECUTOR
When a prosecutor, his assistant or deputy is disqualified to act due to any of the grounds
stated in section 1 of Rule 137 or for any other reason, the judge or the prosecutor shall
communicate with the Secretary of Justice in order that the latter may appoint an acting
prosecutor.
Q: What does one need to do so that the case will be transferred to another court?
A: File a motion to inhibit

Q: How to determine that the one going to be discharged is not the most guilty?
A: There must be a trial, he will be cross-examined
SECTION 18: DISCHARGE OF ACCUSED OPERATES AS ACQUITTAL
The order indicated in the preceding section shall amount to an acquittal of the discharged
accused and shall be a bar to future prosecution for the same offense, unless the accused
fails or refuses to testify against his co-accused in accordance with his sworn statement
constituting the basis for his discharge.
EFFECT OF DISCHARGE OF AN ACCUSED TO BE A STATE WITNESS
§ It shall amount to an acquittal, and be a bar to another prosecution for the same
offense
o XPN: If the accused fails or refuses to testify against his co-accused in
accordance with his sworn statement constituting the basis for his
discharge
§ If the motion for the discharge is rightfully denied, the proposed witness shall be
prosecuted like his co-accused
SECTION 19: WHEN MISTAKE HAS BEEN MADE IN CHARGING THE PROPER OFFENSE
When it becomes manifest at any time before judgment that a mistake has been made in
charging the proper offense and the accused cannot be convicted of the offense charged
or any other offense necessarily included therein, the accused shall not be discharged if
there appears good cause to detain him. In such case, the court shall commit the accused
to answer for the proper offense and dismiss the original case upon the filing of the proper
information.
SITUATION: There has been a mistake in charging the proper offense and mistake has
become manifest at any time before judgment
SECTION 21: EXCLUSION OF THE PUBLIC
The judge may, motu proprio, exclude the public from the courtroom if the evidence to be
produced during the trial is offensive to decency or public morals.
He may also, on motion of the accused, exclude the public from the trial except court
personnel and the counsel of the parties.
SECTION 22: CONSOLIDATION OF TRIALS OF RELATED OFFENSES
Charges for offenses founded on the same facts or forming part of a series of offenses of
similar character may be tried jointly at the discretion of the court.
Take note of distinction between Sections 22 and 16
SECTION 23: DEMURRER TO EVIDENCE
After the prosecution rests its case, the court may (1) dismiss the action on the ground of
insufficiency of evidence 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 the 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.

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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 judgment.
DEMURRER TO EVIDENCE: A motion to dismiss that is filed by the accused after the
prosecution has rested its case.
o It may also be filed in civil cases
o It may even possibly be availed of in special proceedings
o It is an objection by one of the parties in an action to the effect that the
evidence which his adversary produced is insufficient in point of law to:
o make out a case or
o sustain the issue.
o The party filing such in effect challenges the sufficiency of the prosecution’s
evidence
§ There is sufficient evidence, for example, if the specific acts
constituting rape, as alleged in the information, was proven even if
the victim’s minority was not.
§ Sufficient evidence for purposes of frustrating a demurrer thereto
• is such evidence in character, weight or amount as will
legally justify the judicial or official action demanded
according to the circumstances
§ To be sufficient, the evidence must prove:
• The commission of the crime
• The precise degree of participation
§ When the accused files such, the court must evaluate whether the
prosecution evidence is sufficient enough to warrant the conviction of
the accused beyond reasonable doubt
o The grant of such is left to the discretion of the trial court
§ It amounts to an acquittal and cannot be appealed
§ If granted, the order is reviewable only by certiorari if it was issued
with grave abuse of discretion amounting to lack or excess of
jurisdiction
§ When grave abuse of discretion is present, an order granting a
demurrer becomes null and void
§ NOTE the codal: 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 judgment - refers to DENIAL, not
grant of the demurrer.
WHO MAY AVAIL
o The accused
o The court, on its own initiative, may dismiss the action without waiting for a
demurrer from the accused also on the ground of insufficiency of evidence
§ The court shall do so only after giving the prosecution the opportunity
to be heard
DEMURRER TO EVIDENCE BY THE ACCUSED WITH LEAVE OF COURT
o Purpose: To determine whether the accused, in filing his demurrer, is merely
stalling the proceedings
o The motion must specifically state its grounds and be filed within a non-
extendible period of 5 days after the prosecution rests its case
o The prosecution may oppose the motion within the same period from its
receipt
o If leave is granted, the accused shall file the demurrer to evidence within the
non-extendible period of 10 days from notice
§ The prosecution may oppose the demurrer within a similar period
from its receipt
o When demurrer granted: the case is dismissed; it amounts to an acquittal
o When demurrer denied: The accused may adduce evidence in his defense
§ Proper remedy: To present evidence, then to appeal in case he is
convicted
§ Reason: The order denying the motion for leave of court to file the
demurrer or the demurrer itself shall not be reviewable by appeal or
certiorari before judgment
DEMURRER TO EVIDENCE BY THE ACCUSED WITHOUT LEAVE OF COURT
o When demurrer granted: Case dismissed, and effect is an acquittal
o When demurrer denied: The accused waives the right to present evidence and
submits the case for judgment on the basis of the evidence for the prosecution
§ At this juncture, the court is called upon to decide the case, including
its civil aspect, unless the enforcement of the civil liability by a
separate civil action has been waived or reserved
Summary:
• If accused chooses to file a leave for demurrer
o Such leave shall be file 5d from when the prosecution rested its case.
• Prosecution has 5d to oppose
§ If leave is granted, accused has 10d to file a demurrer.
• Prosecution has 10d to comment
§ If leave is denied, accused proceeds to presentation of his
evidence.
o If demurrer denied: accused may adduce evidence on his behalf
• If accused chooses to file demurrer without leave
o If his demurrer is denied: accused waives his right to adduce evidence
on his behalf.
NOT EVERY MOTION TO DISMISS IS A DEMURRER TO EVIDENCE
o A motion to dismiss not grounded upon the insufficiency of evidence, is not a
demurrer under Sec. 23 of Rule 119
o In order to determine whether the motion filed is a demurrer to evidence or
just a motion to dismiss, the following must be considered:
§ The allegations in it must be made in good faith
§ The stage of the proceeding at which it is filed
§ The primary objective of the party filing it

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GRANTING OF DEMURRER IS AN ACQUITTAL NOTES: REVISED GUIDELINES ON CONTINUOUS TRIAL

o The demurrer to evidence in criminal cases is filed after the prosecution had
rested its case, and when the same is granted, it calls for an appreciation of
the evidence adduced by the prosecution and its sufficiency to warrant
conviction beyond reasonable doubt, resulting in a dismissal of the case on the
merits, tantamounts to an acquittal of the accused
o It may not be appealed, to do so would be to place the accused in double
jeopardy
o The verdict being one of acquittal, the case ends there
REVIEW OF ORDER GRANTING A DEMURRER
o Although the grant amounts to an acquittal and the order of dismissal is not
subject to appeal, it may be reviewed through certiorari under Rule 65
o This is because such dismissal order, being considered a void judgment, does
not result in jeopardy
o For the writ of certiorari to issue, the trial court must be shown to have acted
with grave abuse of discretion, or there is a denial of due process
o The burden is on the petitioner to clearly demonstrate that the trial court
blatantly abused its authority to a point so grave as to deprive it of its very power
to dispense with justice
Boomsri Notes:
• If the demurrer is denied, the remedy cannot be appeal or certiorari. The codal is
explicit.
o See Revised Guidelines below.
• A prima facie case is enough to justify the denial of the demurrer to evidence
(Soriquez v. SB)
NOTE: What is prohibited is the order DENYING the motion for leave to file demurrer, or the
demurrer itself
o After the prosecution has rested its case, the court shall inquire from the accused
if he/she desires:
o to move for leave of court to file a demurrer to evidence, or
o to proceed with the presentation of his/her evidence.
o If the accused orally moves for leave of court to file a demurrer to evidence, the
court shall orally resolve the same.
o If the motion for leave is denied, the court shall issue an order for the accused to
present and terminate his/her evidence on the dates previously scheduled and
agreed upon, and to orally offer and rest his/her case on the day his/her last
witness is presented
o If despite the denial of the motion for leave, the accused insists on filing
the demurrer to evidence, the previously scheduled dates for the
accused to present evidence shall be cancelled.
o [If the motion for leave is granted] The demurrer to evidence shall be filed within
a non-extendible period of ten (10) calendar days from the date leave of court is
granted, and the corresponding comment shall be filed within a non-extendible
period of ten (10) calendar days counted from date of receipt of the demurrer to
evidence.
o The demurrer shall be resolved by the court within a non-extendible
period of thirty (30) calendar days from the date of the filing of the
comment or lapse of the ten (10)-day period to file the same.
o If the motion for leave of court to file demurrer to evidence is granted, and the
subsequent demurrer to evidence is denied, the accused shall likewise present
and terminate his/her evidence (one day apart, morning and afternoon) and shall
orally offer and rest his/her case on the day his/her last witness is presented.
o The court shall rule on the oral offer of evidence of the accused and the comment
or objection of the prosecution on the same day of the offer. If the court denies
the motion to present rebuttal evidence because it is no longer necessary, it shall
consider the case submitted for decision.

DEMURRER TO EVIDENCE IN A CIVIL CASE v. IN A CRIMINAL CASE SECTION 24: REOPENING

CIVIL CASE
Anchored upon the failure of the plaintiff
to show that, upon the facts and the law,
he is entitled to relief
Requires no prior leave of court
When denied: Defendant does not lose
his right to present his evidence
If demurrer is granted, plaintiff may
appeal and if the dismissal is reversed,
the defendant is deemed to have waived
his right to present evidence
It is the defendant who invokes the
demurrer by moving for dismissal of the
case
CRIMINAL CASE
Predicated on insufficiency of evidence
May be filed with or without leave of court
When denied: May adduce evidence in his
defense only when demurrer was filed
with leave of court
No appeal is allowed, when a demurrer to
evidence is granted in a criminal case
because the dismissal is deemed an
acquittal
The court, on its own initiative, may
dismiss the action after giving the
prosecution an opportunity to be heard
At any time before finality of the judgment of conviction, the judge may, motu proprio or
upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of
justice. The proceedings shall be terminated within thirty (30) days from the order granting
it.
Q: Can it be filed upon motion of the accused?
A: Yes, on the ground of avoiding miscarriage of justice
REOPENING OF THE PROCEEDINGS
o At any time before finality of judgment/conviction, the judge may motu
proprio 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
§ Unlike a modification of a judgment which cannot be done by the
court on its own motion, a reopening of the proceedings may be
made by the judge motu proprio.

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§ This rule also requires a hearing. Such is not required in
modification of judgment.
REQUIREMENTS FOR RE-OPENING A CASE
o The reopening must be before the finality of a judgment of conviction
§ The case has been decided but it’s not final yet; appeal still allowed
§ As compared to acquittal which is not appealable
o The order is issued by the judge on his own initiative or upon proper motion
o The order is issued only after a hearing is conducted
o The order intends to prevent a miscarriage of justice
o The presentation of additional and/or further evidence should be terminated
within 30 days from the issuance of the order
Q: Distinguish rebuttal and sur-rebuttal from reopening
A: I didn’t hear the answer
TRIAL IN ABSENTIA
The right of an accused to be present in hearings is subsumed under his constitutional right
to meet the witnesses against him face-to-face and other rights of the accused guaranteed
in Section 14(2) of the Bill of Rights
o An accused need not always be present in every hearing although it is his right to
be present, if he so desires, from arraignment to the rendition of the judgment
o XPN: instances when his presence is required
REQUISITES FOR TRIAL IN ABSENTIA
1. The accused has already been arraigned
2. The accused has been duly notified of the trial or hearings
3. The absence of the accused or his failure to appear is unjustified
INSTANCES WHEN THE PRESENCE OF THE ACCUSED IS REQUIRED
o At arraignment and plea, whether of innocence or guilt
§ The prosecution must be afforded the right to identify the accused
as the perpetrator of the offense and the very person named or
described in the complaint or information because rights during the
trial are not designed to be for the accused alone
§ Due process is meant for both the People and the accused, and
identification of the accused in open court is one of the essential
elements in proving the People’s case
o During trial, whenever necessary for identification purposes
o At the promulgation of sentence
§ XPN: When it is for a light offense, the accused may appear by
counsel or representative
HOW IS A JUDGMENT PROMULGATED?
o By reading it in the presence of the accused
o The proper clerk of court shall give notice to the accused personally or
through his bondsman or warden and counsel requiring him to be present at
the promulgation of the decision
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COMMENTS AND QUESTIONS OF THE JUDGE DURING TRIAL
o Court has acknowledged the right of a trial judge to question witnesses with
a view to satisfying his mind upon any material point which presents itself
during the trial of a case over which he presides
o Must be limited to clarificatory questions
o Right must be sparingly and judiciously used
o The court should stay out of it as much as possible
o Cold neutrality of an impartial judge
o Sarcasm alone cannot lead to the conclusion that the judge has taken the
side of the prosecution
LACK OF FORMAL OFFER OF EVIDENCE DURING TRIAL
o The Court shall consider no evidence which has not been formally offered
o It is necessary because the findings of fact and judgment of the trial court
are based on evidence offered by the parties
o Judges are mandated to rest their findings of facts and their judgment only
and strictly upon the evidence offered by the parties at the trial
o Such formal offer allows the parties to object to the presentation of evidence
which may not be admissible for the purpose for which it is offered
o Documents which may have been identified and marked as exhibits during
pre-trial or trial, but which were not formally offered in evidence cannot, in
any manner, be treated as evidence
o Function: To enable the trial judge to know the purpose or purposes for which
the proponent is presenting the evidence. On the other hand, this allows
opposing parties to examine the evidence and object to its admissibility
WHEN FORMAL OFFER OF EVIDENCE IS NOT NECESSARY
When these two requisites concur:
o Evidence was duly identified by testimony duly recorded
o Evidence was incorporated in the records of the case
Other instances, include:
o Judicial notice
o Judicial admissions
o In judging the demeaner of witnesses, the judge determines their credibility
even without the offer
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CHAPTER 10: RULES 120, 121 (JUDGMENT, REMEDIES AFTER JUDGMENT OF
CONVICITON AND PROVISIONAL REMEDIES)
RULE 120: JUDGMENT
SECTION 1: JUDGMENT; DEFINITION AND FORM
Judgment is the adjudication by the court that the accused is guilty or not guilty of the
offense charged and the imposition on him of the proper penalty and civil liability, if any. It
must be written in the official language, personally and directly prepared by the judge and
signed by him and shall contain clearly and distinctly a statement of the facts and the law
upon which it is based.
DEFINITION: A judgment is the adjudication by the court that the accused is guilty or not
guilty of the offense charged, and the imposition on him of the proper penalty and civil
liability, if any.
REQUISITES (FORMAL):
o Must be written in the official language
o Must be personally and directly prepared and signed by the judge
o Must contain clearly and distinctly a statement of
o The facts
o The law upon which it is based
REQUISITES (JURISDICTIONAL):
o Jurisdiction over the subject matter
o Jurisdiction over the territory
o Jurisdiction over the person of the accused
Some decisions of lower courts have been sustained based on substantial compliance,
provided that:
o They eventually set out the facts and the law on which they were based
o When they state the legal qualifications of the offense constituted by the
facts, proved the modifying circumstances, the participation of the accused,
the penalty imposed and the civil liability
o Or discuss the facts comprising the elements of the offense that was charged
in the information, and accordingly render a verdict and impose the
corresponding penalty
o As long as the parties to a litigation should be informed of how it was decided,
with an explanation of the factual and legal reasons that led to the
conclusions of the trial court.
The parties to a litigation should be
• Informed of how it was decided, with an explanation of the factual and legal
reasons that led to the conclusions of the trial court
The losing party is
o Entitled to know why he lost, so he may appeal to the higher court if
permitted, should he believe that the decision should be reversed
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NOTE: The Court has held that there is nothing illegal in the act of the trial court completely
copying the memorandum submitted by a party, provided that the decision clearly and
distinctly states sufficient findings of fact and the law on which they are based
• Memorandum decisions are valid, but judges are reminded to use his own
perceptiveness in unraveling the rollo and his own discernment in discovering the
law.
SECTION 2: CONTENTS OF THE JUDGMENT
If the judgment is of conviction, it shall state (1) the legal qualification of the offense
constituted by the acts committed by the accused and the aggravating or mitigating
circumstances which attended its commission; (2) the participation of the accused in the
offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty
imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act
or omission to be recovered from the accused by the offended party, if there is any, unless
the enforcement of the civil liability by a separate civil action has been reserved or waived.
In case the judgment is of acquittal, it shall state whether the evidence of the prosecution
absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond
reasonable doubt. In either case, the judgment shall determine if the act or omission from
which the civil liability might arise did not exist.
CONTENTS OF A JUDGMENT
CONVICTION: (ACPPC)
o Legal qualification of the offense constituted by the acts committed by the
accused
o The aggravating and mitigating circumstances
o The participation of the accused in the offense whether as
o Principal
o Accomplice
o Accessory
o The penalty imposed upon the accused
o The civil liability or damages caused
The conviction of the accused must rest, not on the weakness of the defense, but on the
strength of the prosecution
ACQUITTAL:
o State whether or not the evidence of the prosecution
o Absolutely failed to prove the guilt of the accused or
o Merely failed to prove his guilt beyond reasonable doubt
o Determine if the act or omission from which the civil liability might arise did
not exist
NOTE: A verdict of acquittal is immediately final.
SECTION 3: JUDGMENT FOR TWO OR MORE OFFENSES
When two or more offenses are charged in a single complaint or information but the
accused fails to object to it before trial, the court may convict him of as many offenses as
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are charged and proved, and impose on him the penalty for each offense, setting out
separately the findings of fact and law in each offense.
RULE WHEN THERE ARE TWO OR MORE OFFENSES IN A SINGLE INFORMATION OR
COMPLAINT
o The accused can file a motion to quash
o Because a complaint or information must charge only one offense, except
when the law prescribes a single punishment for various offenses
EFFECT OF FAILURE TO OBJECT TO DUPLICITOUS COMPLAINT OR INFORMATION BEFORE
TRIAL
o The accused is deemed to have waived the defect
o The court may convict him for as many offenses as are charged and proved
o The court may impose on him the penalty for each offense
o Amounts to waiver and objection can no longer be raised on appeal
JUDGMENT RENDERED BY JUDGE WHO DID NOT HEAR THE CASE
o The fact that the trial judge who rendered judgment was not the one who had
the occasion to observe the demeanor of 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.
Q: In complex crimes, what if only one crime is proven?
A: In complex crime proper, if the crime proven is the one that is necessary to commit the
other, the accused can be convicted of such crime
Q: In complex crime proper, what if 2 crimes were proven but the first crime was not
necessary to commit the other? Can he be convicted of the two crimes?
A: He can be deemed to have waived his right if he pushed through with trial. He should
have filed a motion to quash.
SECTION 4: JUDGMENT IN CASE OF VARIANCE BETWEEN ALLEGATION AND PROOF
When there is variance between the offense charged in the complaint or information and
that proved, and the offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved which is included in the
offense charged, or of the offense charged which is included in the offense proved.
GENERAL RULE: The accused may be convicted only of the crime with which he is charged
EXCEPTION: Variance doctrine under Rule 120 Section 4
VARIANCE DOCTRINE
o A situation where
o The offense proved is different from the offense as charged in the
complaint or information
o The offense as charged is either included in the offense proved or
necessarily includes the offense proved
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o The accused shall be convicted of the offense proved which is included in the
offense charged. He may also be convicted of the offense charged which is
included in the offense proved
o An offense charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part of those
constituting the latter
o Examples:
o Accused is charged with murder but it was homicide that was proven,
the accused shall be convicted of homicide, the offense proved
o Accused is charged with homicide but it was murder the was proven, the
accused shall be convicted of homicide, the offense charged
o An accused charged with qualified rape can be found guilty of the lesser
crime of acts of lasciviousness committed against a child
§ Presupposes that the court rendering the judgment has jurisdiction over the case
based on the allegations in the information
Q: Is there a need for amendment or substitution? What right of the accused would be
violated if prosecution moved to substitute the information?
A: Right against double jeopardy
SECTION 5: WHEN AN OFFENSE INCLUDES OR IS INCLUDED IN ANOTHER
An offense charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or information, constitute
the latter. And an offense charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part of those constituting the latter.
WHEN AN OFFENSE INCLUDES OR IS INCLUDED IN ANOTHER
• An offense charged necessarily includes the offense proved when
o Some of the essential elements or ingredients of the former, as alleged
in the complaint or information, constitute the latter
§ Examples: murder includes homicide; serious physical injuries include less
serious or slight physical injuries; robbery includes theft
• An offense charged is necessarily included in the offense proved when
o The essential ingredients of the former constitute or form part of those
constituting the latter
§ Examples: less serious PI is included in serious PI; acts of lasciviousness in rape;
theft in robbery.
VARIANCE IN THE MODE OF THE COMMISSION OF THE OFFENSE
o Case: Information alleges “force and intimidation” but in trial victim testified
that she was asleep.
o SC: the variance in information and testimony is not fatal for rape by sexual
assault. The accused herein did not object to the presentation of evidence
showing that the crime was committed in a different manner than that was
stated in the information, hence binding upon him. He should have objected.
Q: Is theft included in estafa?
A: No.
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A: How bout theft and malversation?
Q: No.
SECTION 6: PROMULGATION OF JUDGMENT
The judgment is promulgated by reading it in the presence of the accused and any judge of
the court in which it was rendered. However, if the conviction is for a light offense, the
judgment may be pronounced in the presence of his counsel or representative. When the
judge is absent or outside the province or city, the judgment may be promulgated by the
clerk of court.
If the accused is confined or detained in another province or city, the judgment may be
promulgated by the executive judge of the Regional Trial Court having jurisdiction over the
place of confinement or detention upon request of the court which rendered the judgment.
The court promulgating the judgment shall have authority to accept the notice of appeal
and to approve the bail bond pending appeal; provided, that if the decision of the trial court
convicting the accused changed the nature of the offense from non-bailable to bailable, the
application for bail can only be filed and resolved by the appellate court.
The proper clerk of court shall give notice to the accused personally or through his
bondsman or warden and counsel, requiring him to be present at the promulgation of the
decision. If the accused was tried in absentia because he jumped bail or escaped from
prison, the notice to him shall be served at his last known address.
In case the accused fails to appear at the scheduled date of promulgation of judgment
despite notice, the promulgation shall be made by recording the judgment in the criminal
docket and serving him a copy thereof at his last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear was without
justifiable cause, he shall lose the remedies available in these rules against the judgment
and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment,
however, the accused may surrender and file a motion for leave of court to avail of these
remedies. He shall state the reasons for his absence at the scheduled promulgation and if
he proves that his absence was for a justifiable cause, he shall be allowed to avail of said
remedies within fifteen (15) days from notice.
PROMULGATION OF JUDGMENT
o Judgment is promulgated by reading it in the presence of the accused and
any judge of the court in which it was rendered
o However, if the conviction is merely for a light offense, the judgment may
be pronounced in the presence of his counsel or representative
o The judgment may also be promulgated by:
§ the clerk of court if the judge is absent or outside the province
or city
§ If the accused is confined or detained in another province or
city, the judgment may be promulgated by the executive judge
of the RTC having jurisdiction over the place of confinement or
detention upon request of the court which rendered the
judgment
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Revised Guidelines on Continuous Trial
• The court shall announce in open court and include in the order submitting the
case for decision, the date of promulgation of its decision which shall not be
more than 90 calendar days from the date the case is submitted for decision
o EXCEPT: when the case is covered by special rules and other laws
which provide for a shorter period
§ (from footnotes:) Drug cases – 15 days
§ Environmental cases – 60 days
§ Intellectual Property cases – 60 days
§ Others that may be provided in other Rules
• Boomsri Note:
o Regular procedure – 90 days
o Civil cases falling under summary procedure – 30 days
HOW ACCUSED IS TO BE NOTIFIED OF THE PROMULGATION
o The notice shall be given by the clerk of court to the accused:
o personally or
o through his bondsman or warden and
o counsel
o If the accused was tried in absentia because he jumped bail or escaped from
prison, the notice to him shall be served at his last known address
RULE IF THE ACCUSED FAILS TO APPEAR IN THE PROMULGATION OF JUDGMENT
o The promulgation shall not be suspended instead, it shall be made by
o Recording the judgment in the criminal docket, AND
o Serving him a copy thereof at his last known address or through his
counsel
o If the judgment is for conviction, and the failure of the accused to appear was
without justifiable cause, the consequences are more severe
o He shall lose the remedies available in the ROC against the judgment
and the court shall order his arrest
o Such as filing a motion for new trial, reconsideration or appeal
(Rules 121-122).
o However, this rule gives him a chance to avail the remedies as long as
within 15 days from promulgation of judgment, he surrenders and files
a motion for leave of court to avail of the remedies
o He shall state the reason for his absence and, if he proves
such absence was justified, he shall be allowed to avail of the
remedies within 15 days from notice
o Case: “Except when the conviction is for a light offense, wherein the
judgment may be pronounced in the presence of the counsel for the
accused or his representative, the accused is required to be present at
the scheduled date of promulgation of judgement.”
o Note: it is incumbent upon the accused to appear on the scheduled date
of promulgation because it determines the availability of his remedies
against the judgment of conviction.
PROMULGATION IN PRESENCE OF JUDGE OR CLERK OF COURT
o Light offense: Accused need not be present; judge need not be present
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o Serious offense: Accused and judge need to be present § This rule also requires a hearing. Such is not required in
modification of judgment.
Q: If judge wasn’t present and promulgation of judgment was for a serious offense, does it
make the decision null and void? B. REMEDIES BEFORE THE JUDGMENT OF CONVICTION BECOMES FINAL
A: Judge will be administratively liable, decision will be not be rendered null and void o Modification of judgment (Sec. 7, Rule 120)
o Reopening of the proceedings (Sec. 24, Rule 119)
Q: Remedies accused cannot avail of if he is not present during promulgation of conviction? o Motion for new trial (Sec. 1, Rule 121)
A: Motion for new trial/reconsideration o Motion for reconsideration (Sec. 1, Rule 121)
o Appeal from judgment (Rule 122)
SECTION 7: MODIFICATION OF JUDGMENT
A judgment of conviction may, upon motion of the accused, be modified or set aside before SECTION 8: ENTRY OF JUDGMENT
it becomes final or before appeal is perfected. Except where the death penalty is imposed, After a judgment has become final, it shall be entered in accordance with Rule 36.
a judgment becomes final after the lapse of the period for perfecting an appeal, or when
the sentence has been partially or totally satisfied or served, or when the accused has SECTION 9: EXISTING PROVISIONS GOVERNING SUSPENSION OF SENTENCE, PROBATION,
waived in writing his right to appeal, or has applied for probation. AND PAROLE NOT AFFECTED BY THIS RULE
Nothing in this rule shall affect any existing provisions in the laws governing suspension of
MODIFICATION OF JUDGMENT sentence, probation or parole.
• A judgment of conviction may be modified or set aside upon motion of the
accused, before judgment becomes final or before appeal is perfected
• Should be done upon motion of the accused.
o Cannot be done on the court’s own motion.

WHEN JUDGMENT BECOMES FINAL

• After the lapse of the period for perfecting an appeal
• When the sentence has been partially or totally satisfied or served
• When the accused has waived in writing his right to appeal or
• Accused has applied for probation

PROBATION; APPEAL AND PROBATION ARE MUTUALLY EXCLUSIVE REMEDIES

• Applying for probation is deemed a waiver of one’s right to appeal
o They are mutually exclusive remedies
o Implicit in an application for probation is an admission of guilt

Boomsri Notes:
• You can still file an appeal for civil aspect, despite availing of probation for the
criminal aspect.

“EXCEPT WHERE THE DEATH PENALTY IS IMPOSED”

o Because of automatic review of the SC/CA

COMPARED TO REOPENING OF PROCEEDINGS (RULE 119)

o Both of them are remedies before finality of judgment
o At any time before finality of judgment/conviction, the judge may motu
proprio 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
§ Unlike a modification of a judgment which cannot be done by the
court on its own motion, a reopening of the proceedings may be
made by the judge motu proprio.

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RULE 121: NEW TRIAL OR RECONSIDERATION
SECTION 1: NEW TRIAL OR RECONSIDERATION
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.
Boomsri Note: Take note of the differences of MR/MNT in civil and criminal cases.
MOTION FOR NEW TRIAL OR MOTION FOR RECONSIDERATION
• The accused may file either
o A motion for new trial or
o Motion for reconsideration of the judgment adverse to him
• The court, however, need not wait for a motion from the accused because it may,
at its own instance, grant a new trial or a reconsideration of judgment but with the
consent of the accused
• If the accused files either, he should file the motion at any time before the
judgment of conviction becomes final
• Once the judgment becomes final, pleas for a new trial or reconsideration, or pleas
to remand the case to the TC, can no longer be entertained
Notes on Revised Guidelines on Continuous Trial
• A MR of judgment of conviction or MNT under Rule 121 filed within the
reglementary period of 15 days from promulgation shall be resolved within a non-
extendable period of 10 calendar days from submission of comment of the
prosecution.
o With or without comment, the court shall resolve the motion within the
10 day period.
SECTION 2: GROUNDS FOR A NEW TRIAL
The court shall grant a new trial on any of the following grounds:
a. That errors of law or irregularities prejudicial to the substantial rights of the
accused have been committed during the trial;
b. That new and material evidence has been discovered which the accused
could not with reasonable diligence have discovered and produced at the trial
and which if introduced and admitted would probably change the judgment.
GROUNDS FOR A NEW TRIAL
• That errors of law have been committed during the trial
• That irregularities prejudicial to the substantial rights of the accused have been
committed during the trial
• That new and material evidence has been discovered
o Must not be ‘forgotten’ evidence
o Can include testimony
REQUISITES FOR NEWLY DISCOVERED EVIDENCE
o The evidence must have been discovered after the trial
o It could not have been previously discovered and produced at the trial even
with the exercise of reasonable diligence
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o This is the most important requisite
o It is a new and material evidence
o Not merely cumulative, corroborative, or impeaching
o If introduced and admitted, it would probably change the judgment
SECTION 3: GROUNDS FOR RECONSIDERATION
The court shall grant reconsideration on the ground of errors of law or fact in the judgment,
which requires no further proceedings.
GROUNDS FOR RECONSIDERATION OF THE JUDGMENT
o Errors of law in the judgment which require no further proceedings
o Errors of fact in the judgment which also require no further proceedings
NOTE: Here the accused just looks at the decision, not in the proceedings because if it’s in
the proceeding, what should be filed is a motion for new trial.
Q: Can the prosecution file a motion for reconsideration?
A: No. Only the accused. If the prosecution files such, it would violate the right against
double jeopardy. However, the prosecution may file an MR for the civil aspect
Q: What is the accused asking when he filed an MR?
A: That the court render a new judgment
Q: Where should have the concerns risen from?
A: The concerns of the MR should have risen from the decision. (As opposed to trial, where
the remedy filed should be new trial)
SECTION 4: FORM OF MOTION AND NOTICE TO THE PROSECUTOR
The motion for new trial or reconsideration shall be in (1) writing and shall (2) state the
grounds on which it is based.
If based on a newly-discovered evidence, the motion must be supported by
• affidavits of witnesses by whom such evidence is expected to be given or by
• duly authenticated copies of documents which are proposed to be introduced in
evidence.
Notice of the motion for new trial or reconsideration shall be given to the prosecutor.
FORM OF THE MOTIONS; NOTICE
o Motion
o Shall be in writing
o Shall state the grounds on which it is based
o If based on newly discovered evidence
o 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
o Notice of the motion for new trial/reconsideration shall be given to the prosecutor
Q: What happens if the newly discovered evidence is real evidence (as opposed to
testimony, documentary evidence)? Since you have to convince the judge in your motion…
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JUDGE BOOMSRI

A: You can attach a picture (e.g. of the knife, gun, wig used, etc.) If it’s a video, you can
attach a copy of the video.

SECTION 5: HEARING OR MOTION

Where a motion for new trial calls for resolution of any question of fact, the court may hear
evidence thereon by affidavits or otherwise.

SECTION 6: EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION

The effects of granting a new trial or reconsideration are the following:
(a) When a new trial is granted on the ground of errors of law or irregularities
committed during the trial, all the proceedings and evidence affected thereby
shall be set aside and taken anew. The court may, in the interest of justice, allow
the introduction of additional evidence.
(b) When a new trial is granted on the ground of newly-discovered evidence, the
evidence already adduced shall stand and the newly-discovered and such other
evidence as the court may, in the interest of justice, allow to be introduced shall
be taken and considered together with the evidence already in the record.
(c) In all cases, when the court grants new trial or reconsideration, the original
judgment shall be set aside or vacated and a new judgment rendered accordingly.

EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION

o In all cases when a new trial or reconsideration is granted, the original judgment
shall be set aside or vacated and a new judgment shall be rendered accordingly
o The other effects would depend on the ground availed of
§ New trial is granted on the grounds of errors of law or irregularities
in the trial: All proceedings and evidence affected shall be (a) set
aside, and (b) taken anew and the court, in the interest of justice,
may allow the introduction of additional evidence
§ New trial is granted on the ground of newly-discovered evidence:
Such evidence, together with other evidence which the court may
allow in the interest of justice, shall be taken and considered
together with the evidence already in the record

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RULE 122: APPEAL
SECTION 1: WHO MAY APPEAL
Any party may appeal from a judgment or final order, unless the accused will be placed in
double jeopardy.
SECTION 2: WHERE TO APPEAL
The appeal may be taken as follows:
a) To the Regional Trial Court, in cases decided by the Metropolitan Trial Court,
Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial
Court;
b) To the Court of Appeals or to the Supreme Court in the proper cases provided by
law, in cases decided by the Regional Trial Court; and
c) To the Supreme Court, in cases decided by the Court of Appeals. (1a)
SECTION 3: HOW APPEAL TAKEN
a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided
by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken
by filing a notice of appeal with the court which rendered the judgment or final
order appealed from and by serving a copy thereof upon the adverse party.
b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in
the exercise of its appellate jurisdiction shall be by petition for review under Rule
42.
c) The appeal to the Supreme Court in cases where the penalty imposed by the
Regional Trial Court is death, reclusion perpetua, or life imprisonment, or where a
lesser penalty is imposed but for offenses committed on the same occasion or
which arose out of the same occurrence that gave rise to the more serious offense
for which the penalty of death, reclusion perpetua, or life imprisonment is
imposed, shall be by filing a notice of appeal in accordance with paragraph (a) of
this section.
d) No notice of appeal is necessary in cases where the death penalty is imposed by
the Regional Trial Court. The same shall be automatically reviewed by the
Supreme Court as provided in section 10 of this Rule.
e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals
to the Supreme Court shall be by petition for review on certiorari under Rules 45.
(3a)
SECTION 4: PUBLICATION OF NOTICE OF APPEAL
If personal service of the copy of the notice of appeal cannot be made upon the adverse
party or his counsel, service may be done by registered mail or by substituted service
pursuant to sections 7 and 8 of Rule 13. (4a)
SECTION 5: WAIVER OF NOTICE
The appellee may waive his right to a notice that an appeal has been taken. The appellate
court may, in its discretion, entertain an appeal notwithstanding failure to give such notice
if the interests of justice so require. (5a)
SECTION 6: WHEN APPEAL TO BE TAKEN
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An appeal must be taken within fifteen (15) days from promulgation of the judgment or from
notice of the final order appealed from. This period for perfecting an appeal shall be
suspended from the time a motion for new trial or reconsideration is filed until notice of the
order overruling the motion shall have been served upon the accused or his counsel at
which time the balance of the period begins to run. (6a)
SECTION 7: TRANSCRIBING AND FILING NOTES OF STENOGRAPHIC REPORTER UPON
APPEAL When notice of appeal is filed by the accused, the trial court shall direct the
stenographic reporter to transcribe his notes of the proceedings. When filed by the People
of the Philippines, the trial court shall direct the stenographic reporter to transcribe such
portion of his notes of the proceedings as the court, upon motion, shall specify in writing.
The stenographic reporter shall certify to the correctness of the notes and the transcript
thereof, which shall consist of the original and four copies, and shall file the original and
four copies with the clerk without unnecessary delay.
If death penalty is imposed, the stenographic reporter shall, within thirty (30) days from
promulgation of the sentence, file with the clerk original and four copies of the duly certified
transcript of his notes of the proceedings. No extension of time for filing of said transcript
of stenographic notes shall be granted except by the Supreme Court and only upon
justifiable grounds.
SECTION 8: TRANSMISSION OF PAPERS TO APPELLATE COURT UPON APPEAL
Within five (5) days from the filing of the notice of appeal, the clerk of the court with whom
the notice of appeal was filed must transmit to the clerk of court of the appellate court the
complete record of the case, together with said notice. The original and three copies of the
transcript of stenographic notes, together with the records, shall also be transmitted to the
clerk of the appellate court without undue delay. The other copy of the transcript shall
remain in the lower court. (8a)
SECTION 9: APPEAL TO THE REGIONAL TRIAL COURTS
a) Within five (5) days from perfection of the appeal, the clerk of court shall transmit
the original record to the appropriate Regional Trial Court.
b) Upon receipt of the complete record of the case, transcripts and exhibits, the clerk
of court of the Regional Trial Court shall notify the parties of such fact.
c) Within fifteen (15) days from receipt of the said notice, the parties may submit
memoranda or briefs, or may be required by the Regional Trial Court to do so. After
the submission of such memoranda or briefs, or upon the expiration of the period
to file the same, the Regional Trial Court shall decide the case on the basis of the
entire record of the case and of such memoranda or briefs as may have been
filed. (9a)
SECTION 10: TRANSMISSION OF RECORDS IN CASE OF DEATH PENALTY
In all cases where the death penalty is imposed by the trial court, the records shall be
forwarded to the Supreme Court for automatic review and judgment within five (5) days
after the fifteenth (15) day following the promulgation of the judgment or notice of denial
of a motion for new trial or reconsideration. The transcript shall also be forwarded within
ten (10) days after the filing thereof by the stenographic reporter. (10a)
SECTION 11: EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED
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a) An appeal taken by one or more of several accused shall not affect those who did
not appeal, except insofar as the judgment of the appellate court is favorable and
applicable to the latter;
b) The appeal of the offended party from the civil aspect shall not affect the criminal
aspect of the judgment or order appealed from.
c) Upon perfection of the appeal, the execution of the judgment or final order
appealed from shall be stayed as to the appealing party. (11a)
SECTION 12: WITHDRAWAL OF APPEAL
Notwithstanding the perfection of the appeal, the Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court,
as the case may be, may
o allow the appellant to withdraw his appeal before the record has been forwarded
by the clerk of court to the proper appellate court as provided in section 8, in which
case the judgment shall become final.
o The Regional Trial Court may also, in its discretion, allow the appellant from the
judgment of a Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court, or Municipal Circuit Trial Court to withdraw his appeal,
o provided a motion to that effect is filed before rendition of the judgment in the
case on appeal,
o in which case the judgment of the court of origin shall become final and the case
shall be remanded to the latter court for execution of the judgment. (12a)
SECTION 13: APPOINTMENT OF COUNSEL DE OFICIO FOR ACCUSED ON APPEAL
It shall be the duty of the clerk of the trial court, upon filing of a notice of appeal, to ascertain
from the appellant, if confined in prison, whether he desires the Regional Trial Court, Court
of Appeals or the Supreme Court to appoint a counsel de oficio to defend him and to
transmit with the record on a form to be prepared by the clerk of court of the appellate
court, a certificate of compliance with this duty and of the response of the appellant to his
inquiry. (13a)
RULE 123
PROCEDURE IN THE MUNICIPAL TRIAL COURT
SECTION 1: UNIFORM PROCEDURE
The procedure to be observed in the Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts shall be the same as in the Regional Trial Courts, except where
a particular provision applies only to either of said courts and in criminal cases governed by
the Revised Rule on Summary Procedure. (1a)
RULE 124
PROCEDURE IN THE COURT OF APPEALS
SECTION 1: TITLE OF THE CASE
In all criminal cases appealed to the Court of Appeals, the party appealing the case shall be
called the "appellant" and the adverse party the "appellee," but the title of the case shall
remain as it was in the court of origin. (1a)
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SECTION 2: APPOINTMENT OF COUNSEL DE OFICIO FOR THE ACCUSED
If it appears from the record of the case as transmitted that (a) the accused is confined in
prison, (b) is without counsel de parte on appeal, or (c) has signed the notice of appeal
himself, the clerk of court of the Court of Appeals shall designate a counsel de oficio.
An appellant who is not confined in prison may, upon request, be assigned a counsel de
oficio within ten (10) days from receipt of the notice to file brief and he establishes his right
thereto. (2a)
SECTION 3: WHEN BRIEF FOR APPELLANT TO BE FILED
Within thirty (30) days from receipt by the appellant or his counsel of the notice from the
clerk of court of the Court of Appeals that the evidence, oral and documentary, is already
attached to the record, the appellant shall file seven (7) copies of his brief with the clerk of
court which shall be accompanied by proof of service of two (2) copies thereof upon the
appellee. (3a)
SECTION 4: WHEN BRIEF FOR APPELLEE TO BE FILED; REPLY BRIEF OF THE APPELLANT
Within thirty (30) days from the receipt of the brief of the appellant, the appellee shall file
seven (7) copies of the brief of the appellee with the clerk of court which shall be
accompanied by proof of service of two (2) copies thereof upon the appellant.
Within twenty (20) days from receipt of the brief of the appellee, the appellant may file a
reply brief traversing matters raised in the former but not covered in the brief of the
appellant. (4a)
SECTION 5: EXTENSION OF TIME FOR FILING BRIEFS
Extension of time for the filing of briefs will not be allowed except (1) for good and sufficient
cause and (2) only if the motion for extension is filed before the expiration of the time sought
to be extended. (5a)
SECTION 6: FORM OF BRIEFS
Briefs shall either be printed, encoded or typewritten in double space on the legal size good
quality unglazed paper, 330 mm. in length by 216 mm. in width. (6a)
SECTION 7: CONTENTS OF BRIEF
The briefs in criminal cases shall have the same contents as provided in sections 13 and
14 of Rule 44. A certified true copy of the decision or final order appealed from shall be
appended to the brief of appellant. (7a)
SECTION 8: DISMISSAL OF APPEAL FOR ABANDONMENT OR FAILURE TO PROSECUTE
The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to
the appellant in either case, dismiss the appeal if the appellant fails to file his brief within
the time prescribed by this Rule, except where the appellant is represented by a counsel de
oficio.
The Court of Appeals may also, upon motion of the appellee or motu proprio, dismiss the
appeal if the appellant (1) escapes from prison or confinement, (2) jumps bail or (3) flees
to a foreign country during the pendency of the appeal. (8a)
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SECTION 9: PROMPT DISPOSITION OF APPEALS
Appeals of accused who are under detention shall be given precedence in their disposition
over other appeals. The Court of Appeals shall hear and decide the appeal at the earliest
practicable time with due regard to the rights of the parties. The accused need not be
present in court during the hearing of the appeal. (9a)
SECTION 10: JUDGMENT NOT TO BE REVERSED OR MODIFIED EXCEPT FOR SUBSTANTIAL
ERROR
No judgment shall be reversed or modified unless the Court of Appeals, after an
examination of the record and of the evidence adduced by the parties, is of the opinion that
error was committed which injuriously affected the substantial rights of the appellant. (10a)
SECTION 11: SCOPE OF JUDGMENT
The Court of Appeals may reverse, affirm, or modify the judgment and increase or reduce
the penalty imposed by the trial court, remand the case to the Regional Trial Court for new
trial or retrial, or dismiss the case. (11a)
SECTION 12: POWER TO RECEIVE EVIDENCE
The Court of Appeals shall have the power to try cases and conduct hearings, receive
evidence and perform any and all acts necessary to resolve factual issues raised in cases
(a) falling within its original jurisdiction, (b) involving claims for damages arising from
provisional remedies, or (c) where the court grants a new trial based only on the ground of
newly-discovered evidence. (12a)
SECTION 13: QUOROM OF THE COURT; CERTIFICATION OR APPEAL OF CASES TO SUPREME
COURT
Three (3) Justices of the Court of Appeals shall constitute a quorum for the sessions of a
division. The unanimous vote of the three (3) Justices of a division shall be necessary for
the pronouncement of a judgment or final resolution, which shall be reached in consultation
before the writing of the opinion by a member of the division. In the event that the three (3)
Justices can not reach a unanimous vote, the Presiding Justice shall direct the raffle
committee of the Court to designate two (2) additional Justices to sit temporarily with them,
forming a special division of five (5) members and the concurrence of a majority of such
division shall be necessary for the pronouncement of a judgment or final resolution. The
designation of such additional Justices shall be made strictly by raffle and rotation among
all other Justices of the Court of Appeals.
Whenever the Court of Appeals finds that the penalty of death, reclusion perpetua, or life
imprisonment should be imposed in a case, the court, after discussion of the evidence and
the law involved, shall render judgment imposing the penalty of death, reclusion perpetua,
or life imprisonment as the circumstances warrant. However, it shall refrain from entering
the judgment and forthwith certify the case and elevate the entire record thereof to the
Supreme Court for review.
SECTION 14: MOTION FOR NEW TRIAL
At any time after the appeal from the lower court has been perfected and before the
judgment of the Court of Appeals convicting the appellant becomes final, the latter may
move for a new trial on the ground of newly-discovered evidence material to his defense.
The motion shall conform with the provisions of section 4, Rule 121. (14a)
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SECTION 15: WHERE NEW TRIAL CONDUCTED
When a new trial is granted, the Court of Appeals may conduct the hearing and receive
evidence as provided in section 12 of this Rule or refer the trial to the court of origin. (15a)
SECTION 16: RECONSIDERATION
A motion for reconsideration shall be filed within fifteen (15) days after from notice of the
decision or final order of the Court of Appeals, with copies served upon the adverse party,
setting forth the grounds in support thereof. The mittimus shall be stayed during the
pendency of the motion for reconsideration. No party shall be allowed a second motion for
reconsideration of a judgment or final order. (16a)
SECTION 17: JUDGMENT TRANSMITTED AND FILED IN TRIAL COURT
When the entry of judgment of the Court of Appeals is issued, a certified true copy of the
judgment shall be attached to the original record which shall be remanded to the clerk of
the court from which the appeal was taken. (17a)
SECTION 18: APPLICATION OF CERTAIN RULES IN CIVIL TO CRIMINAL CASES
The provisions of Rules 42, 44 to 46 and 48 to 56 relating to procedure in the Court of
Appeals and in the Supreme Court in original and appealed civil cases shall be applied to
criminal cases insofar as they are applicable and not inconsistent with the provisions of this
Rule. (18a)
RULE 125
Procedure in the Supreme Court
SECTION 1: UNIFORM PROCEDURE
Unless otherwise provided by the Constitution or by law, the procedure in the Supreme Court
in original and in appealed cases shall be the same as in the Court of Appeals.
SECTION 2: REVIEW OF DECISIONS OF THE COURT OF APPEALS
The procedure for the review by the Supreme Court of decisions in criminal cases rendered
by the Court of Appeals shall be the same as in civil cases.
SECTION 3: DECISION IF OPINION IS EQUALLY DIVIDED
When the Supreme Court en banc is equally divided in opinion or the necessary majority
cannot be had on whether to acquit the appellant, the case shall again be deliberated upon
and if no decision is reached after re-deliberation, the judgment of conviction of the lower
court shall be reversed and the accused acquitted.
APPEAL NOT A NATURAL RIGHT
o It is a statutory privilege
o The right may be exercised only in the manner and in accordance with the
provisions of law
o While the right is statutory, once it is granted by law, its suppression would
be a violation of due process
WHO MAY APPEAL
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o Any party may appeal from a judgment or a final order, unless the accused
will be placed in double jeopardy.
o The prosecution may appeal provided the accused will not be placed in
double jeopardy.
o The accused may appeal from a judgment of conviction, but he waives the
protection on prohibition against double jeopardy and runs the risk of being
sentenced to a penalty higher than that imposed by the trial court.
SUBJECT MATTER FOR REVIEW ON APPEAL
o In criminal cases, an appeal throws the case wide open for review and the
reviewing tribunal can correct errors or even reverse the trial court’s decision
on grounds other than those that the parties raised as errors
o The appeal confers upon the appellate court full jurisdiction over the case
and renders such court competent to examine records, revise the judgment
appealed from, increase the penalty and cite the proper provision of the
penal law violated
o As compared to civil cases, where no error will be considered by the appellate
court unless stated in the assignment of errors, except when
§ The error affects the jurisdiction of the court over the subject matter
§ The error affects the validity of the judgment appealed from, or the
proceedings therein
§ The error is closely related or dependent on an assigned error and
properly argued in the brief
§ The error is a plain error or clerical error
§ The appellate court finds that the consideration of errors not
assigned on appeal is necessary in arriving at a complete and just
resolution of the case, serving the interests of justice
CHANGE OF THEORY ON APPEAL
o A 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.
§ Otherwise, it would be offensive to the basic rules of fair play,
justice, and due process
FACTUAL FINDINGS; CREDIBILITY OF WITNESSES
GENERAL RULE: Factual findings of the trial court, especially when affirmed by the CA,
deserve great weight and respect. These factual findings should not be disturbed on appeal.
o Having the advantage of directly observing the deportment and manner of
testifying of the witness, the trial court is in a better position than the
appellate court to evaluate testimonial evidence properly
o The Supreme Court is not a trier of facts, and has to depend on the findings
of fact of the trial court by virtue of the latter’s direct access to the witnesses
as they testified in court
o The question of credibility of witnesses is primarily for the trial court to
determine.
§ Its assessment of the credibility of a witness is entitled to great
weight, and it is conclusive and binding unless shown to be tainted
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with arbitrariness or unless through oversight, some fact or
circumstance of weight and influence has not been considered
EXCEPTION: When there are facts of weight and substance that were overlooked or
misinterpreted and that would materially affect the disposition of the case.
o The trial court may not be sustained at all times when discrepancies in the
testimony of a witness are apparent.
WHERE TO APPEAL
o To the RTC – In cases decided by the MeTC, MTCC, MTC, MCTC
o To the CA or SC (for death, RP, LI) or SB – In cases decided by the RTC
o Boomsri note: because AM 005-003-SC, instead of going straight
to SC, death/RP/LI cases need to go to CA first.
o To the SC – In cases decided by the CA
HOW TO APPEAL
o From the MTC – To the RTC by notice of appeal filed with the court which rendered
the judgment or final order appealed from and by serving a copy thereof upon the
adverse party
o From the RTC in the exercise of its original jurisdiction – To the CA/SB by notice of
appeal filed with the court which rendered the judgment or final order appealed
from and by serving a copy thereof upon the adverse party
o From the RTC in the exercise of its appellate jurisdiction – To the CA/SB by filing
a petition for review with said court under Rule 42
o From the RTC when penalty imposed is reclusion perpetua or life imprisonment,
or where a lesser penalty is imposed but for offenses committed on the same
occasion or which arose out of the same occurrence that gave rise to the more
serious offense for which the penalty is death, reclusion perpetua or life
imprisonment is imposed – To the CA by notice of appeal in accordance with Sec.
3(a), Rule 122
o Boomsri Notes:
§ Before amendment, SC can review factual issues through
ordinary appeal (constitutional basis).
§ But because 005-003-SC, instead of going straight to SC,
it needs to go to CA first.
o From the RTC/ SB (in the exercise of its original jurisdiction) when penalty imposed
is death – No appeal is necessary, the CA shall automatically review the judgment
o From the CA/From the SB when affirming or imposing a penalty less than death,
life imprisonment or reclusion perpetua – To the SC by filing a petition for review
on certiorari under Rule 45
§ This rule applies where the CA imposes a penalty other than death,
reclusion perpetua or life imprisonment
§ Boomsri Note: Example, imposable penalty is RP but upon
automatic review by CA, CA only imposed Reclusion Temporal
§ A petition for review raises only questions of law and should raise
the errors of the CA and not those of the RTC
§ A question of law exists when the doubt or difference arises as what
the law is on a certain state of facts
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§A question of fact exists when the doubt or difference arises as to o To standardize the appeal periods provided in the Rules and to afford litigants fair
the truth or falsehood of the alleged facts opportunity to appeal their cases, the Court deems it practical to allow a fresh
o From the CA when penalty imposed is death, reclusion perpetua or life period of 15 days within which to file the notice of appeal in the RTC, counted from
imprisonment – To the SC by notice of appeal receipt of the order dismissing a MNT or MR
o From the SB in the exercise of its original jurisdiction imposes a penalty of reclusion o The Court emphasized that the period for appeal is not only within 15 days from
perpetua or life imprisonment, or where a lesser penalty is imposed but for the notice of the judgment, but also within days from the notice of the final order
offenses committed on the same occasion or which arose out of the same appealed from
occurrence that gave rise to the more serious offense for which the penalty is o If a motion for reconsideration or motion for new trial is denied, such denial is to
death, reclusion perpetua or life imprisonment is imposed – To the SB by filing a be deemed as the final order
notice of appeal o From receipt of such notice of denial, the movant has another “fresh period” within
which to appeal
Summary: o Obviously, the new 15-day period may be availed of only if either motion is filed;
• MTC otherwise, the decision becomes final and executory after the lapse of the original
o Always RTC appeal period from the notice of judgment
o thru notice of appeal + serve on adverse party § This rule is also applicable in appeals in criminal cases (Yu v.
• RTC Samson-Tatad)
o To CA § As promulgated, the period of appeal in all cases shall be 15 days
§ If original JDN, notice of appeal. counted from the notice of the final order, resolution, award,
§ If appellate, PetRev via 42. judgment or decision appealed from
§ If RP/LI, notice of appeal. § The law, according to the court, makes no distinction between the
§ If death, automatic review. periods to appeal in a civil case and in a criminal case
o To SB
§ If original JDN, notice of appeal. SERVICE OF NOTICE OF APPEAL; WAIVER OF NOTICE
§ If appellate, PetRev via 42. o Notice of appeal should be served upon the adverse party or his counsel by
• SB personal service
o Always SC (?) o If such cannot be made, service may be done by registered mail or
o If less than D/RP/LI, PetRev to SC via 45. substituted service pursuant to Secs. 7 and 8 of Rule 13
o If RP/LI, notice of appeal in SB. § Substituted service – When the person to be given the notice is not
o If Death, automatic review. present, it can be given to persons who are present at the residence
• CA o The appellee may waive his right to a notice that an appeal has been taken
o Always SC. § When should it be given? At the time judgment is promulgated
o If less than D/RP/LI, PetRev to SC via 45. o The appellate court may, in its discretion, entertain an appeal
o If RP/LI, notice of appeal. notwithstanding failure to give such notice if the interests of justice so require
o If Death, automatic review.
STAY OF EXECUTION
Notice of appeal – 1 page (filed with the court that rendered the decision) o Upon perfection of the appeal, the execution of the judgment or final order
Petition for review – Around 10 pages appealed from shall be stayed as to the appealing party (only)
o The benefit of such, who timely files an appeal, cannot be extended to those
WHEN APPEAL IS TO BE TAKEN who failed to file the same.
o Within 15 days from § The period of appeal continues to run against the accused who did
§ A promulgation of judgment not appeal even if his co-accused appeal
§ From notice of the final order appealed from § It is too strained to construe the exception in Sec. 11, Rule 122 as
o This period for perfecting an appeal shall be suspended from the time a including procedural consequences of a pending appeal although it
motion for new trial or reconsideration is filed until notice of the order may be beneficial to the accused
overruling the motion has been served upon the accused or his counsel at
which time the balance of the period begins to run TRANSMISSION OF PAPERS TO APPELLATE COURT
o Within 5 days from the filing of the notice of appeal, the clerk of court with
THE NEYPES RULE whom the notice of appeal was filed must transmit to the clerk of court of the

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appellate court the complete record of the case, together with notice of
appeal
o If the appellate court is the RTC, upon receipt of the records and etc, the clerk
of court of the RTC shall notify the parties of such fact.
§ Within 15 days from receipt, the parties may submit memoranda or
briefs, or may be required by the RTC to do so.
§ After submission of such, or upon the expiration of the period to file
the same, the RTC shall decide the case on the basis of the entire
records of the case and of such memoranda or briefs as may have
been filed
§ Hence, the RTC shall not receive new evidence or conduct a trial
before deciding on the appealed case
§ The decision of the court is based on the entire records of the case
and the memoranda or briefs filed by the parties
o The CA however, shall have the power to try cases and conduct hearings,
receive evidence and perform all acts necessary to resolve factual issues
raised in cases falling within its original and appellate jurisdiction, including
the power to grant and conduct new trial and further proceedings
§ Trials or hearings conducted in the CA
• Must be continuous
• Must be completed in three months
• Unless extended by the Chief Justice
FAILURE TO FILE A MEMORANDUM ON APPEAL
o In appeals to the RTC in civil cases, the failure to file such shall be a ground
for dismissal of the appeal pursuant to Sec. 7 of Rule 40.
§ The rule does not apply in criminal cases in which the filing of a
memorandum may or may not be required by the court
§ Hence, the dismissal of an appeal cannot be premised on the failure
to file a memorandum on appeal
o In the CA, the appeal may be dismissed if the appellant fails to file his brief
within the time prescribed, except where the appellant is represented by a
counsel de oficio
§ The dismissal may be motu propio or upon motion of the appellee
with notice to the appellant in either case
§ The CA may also, upon motion of the appellee or motu propio,
dismiss the appeal if the appellant escapes from prison or
confinement, jumps bail or flees to a foreign country during the
pendency of the appeal
§ When CA may dismiss an appeal:
§ If appellant fails to file his brief within time prescribed
§ During the pendency of the appeal:
• the appellant escapes from prison or confinement
• jumps bail or
• flees to a foreign country
WITHDRAWAL OF APPEAL
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o Despite the perfection of an appeal, the RTC or MTC may allow the appellant
to withdraw his 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.
o If withdrawal is sought when the case is already on appeal, the RTC may allow
the appellant to withdraw his appeal provided
§ A motion to withdraw Is filed
§ The motion is filed before the RTC renders judgment on the appeal
§ NOTE: At this stage the court which allows the withdrawal is the RTC
and the withdrawal is addressed to the sound discretion of the court
o When the appeal is allowed to be withdrawn, the judgment of the court of
origin becomes final and the case shall be remanded to the court of origin for
execution
EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED
o An appeal taken by one or more of several accused shall not affect those who did
not appeal, except insofar as the judgment of the appellate court is favorable and
applicable to the latter
o Although the rule states that a favorable judgment shall benefit those who did not
appeal, the Court emphasized that “did not appeal” should not be interpreted
literally to deprive those who appealed their convictions from the benefits of the
provision
§ The provision applies “without regard as to the filing or non-filing of
an appeal by a co-accused, as long as the judgment is favorable to
him”
§ The benefits of this rule extends to all the accused, regardless of
whether they appealed or not
o Despite the above rule, the execution of the judgment or final order appealed from
shall be stayed as to the appealing party only
§ The rule does not provide that the execution of the judgment shall
be stayed also as to the non-appealing party
APPEAL FROM THE CIVIL ASPECT
o The appeal of the offended party from the civil aspect shall not affect the criminal
aspect of the judgment or order appealed from
o The appeal period accorded to the accused should also be available to the
offended party who seeks redress of the civil aspect of the decision.
o The period to appeal granted to the offended party is the same as that
granted to the accused
“HARMLESS ERROR RULE”
o Not all errors committed by the trial court are grounds for reversal of the appealed
judgment
o If the error is slight and insignificant, the error will be disregarded because it has
not caused prejudice to a party
REVIEW OF DECISIONS OF THE COURT OF APPEALS
o The procedure in criminal cases shall be the same as in civil cases
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APPLICABILITY OF THE RULES ON APPEAL IN THE CA TO THE SC
o Although Sec. 8, Rule 124 particularly applies to the CA, it has been extended to
the SC by Rule 125 Sec. 1
RULE IF THE OPINION OF THE SUPREME COURT EN BANC IS EQUALLY DIVIDED
o The case shall again be deliberated upon and if no decision is reached after the
re-deliberation, the judgment of conviction of the lower court shall be reversed
and the accused acquitted
NOTE: RULE 126 ALREADY DISCUSSED AFTER RULE 113
RULE 127
PROVISIONAL REMEDIES IN CRIMINAL CASES
SECTION 1: AVAILABILITY OF PROVISIONAL REMEDIES
The provisional remedies in civil actions, insofar as they are applicable, may be availed of
in connection with the civil action deemed instituted with the criminal action.
SECTION 2: ATTACHMENT
When the civil action is properly instituted in the criminal action as provided in Rule 111,
the offended party may have the property of the accused attached as security for the
satisfaction of any judgment that may be recovered from the accused in the following cases:
a) When the accused is about to abscond from the Philippines;
b) When the criminal action is based on a claim for money or property embezzled or
fraudulently misapplied or converted to the use of the accused who is a public
officer, officer of a corporation, attorney, factor, broker, agent, or clerk, in the
course of his employment as such, or by any other person in a fiduciary capacity,
or for a willful violation of duty;
c) When the accused has concealed, removed, or disposed of his property, or is
about to do so; and
d) When the accused resides outside the Philippines
AVAILABILITY
o The provisional remedies in civil actions, insofar as they are applicable, may be
availed of in connection with the civil action deemed instituted with the criminal
action
o To avail of a provisional remedy in a criminal action, it must be one with a
corresponding civil liability (ex delicto)
o Since provisional remedies are available in connection with the civil action
properly instituted in the criminal action, the offended party may have the property
of the accused attached as security for the satisfaction of any judgment that may
be recovered from the accused
o The reference to provisional remedies in Rule 127 is made in general terms;
hence the following may be availed of
§ Preliminary attachment
§ Preliminary injunction
§ Receivership
§ Replevin
§ Support pendent lite
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o For reasons connected with the offended party’s availment of a provisional
remedy, the accused, during trial, may prove not only his defense but also the
damages he may have sustained arising from the issuance of a provisional
remedy in the case
WHEN PRELIMINARY ATTACHMENT IS AVAILABLE
o It is available in a criminal case when the (1) civil action is properly instituted in
the criminal action as provided in Rule 111 of the ROC and (2) in the following
cases
§ When the accused is about to abscond from the Philippines
§ When the criminal action is based on a claim for money or property
embezzled or fraudulently misapplied or converted to the use of the
accused who is a public officer, officer of a corporation, attorney,
factor, broker, agent or clerk, in the court of his employment as
such, or by any other person in a fiduciary capacity, or for willful
violation of a duty
§ When the accused has concealed, removed or disposed of his
property, or is about to do so
§ When the accused resides outside the Philippines
o The grounds for a preliminary attachment in a civil case are not varied as the
grounds for such in a civil case
o In Section 2(b), preliminary attachment may be availed of without the need for a
showing that the accused has concealed, removed or disposed of his property or
is about to do so. Instead, what need be shown are the following:
§ The criminal case is founded upon a claim that money or property
was embezzled, fraudulently misapplied or converted to the use of
the accused
§ The accused occupies any of the positions mentioned in Sec. 2 of
this Rule or that he committed a willful violation of duty
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