U.P.

LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

8. Forfeiture and Cancellation of Automatic cancellation

a. Upon acquittal of the accused
Bail b. Upon dismissal of the case, or
c. Upon execution of judgment of conviction
Forfeiture of bail
[Sec. 22, Rule 114]
When the presence of the accused out on bail
is required by court or Rules of Court and he
failed to appear, his bail shall be declared 9. Application not a Bar to
forfeited and the bondsmen are given 30 days Objections on Illegal Arrest,
within which to: Lack of or Irregular
a. Produce their principal
Preliminary Investigation
b. Show cause why no judgment should be
rendered against them for the amount of
An application or an admission to bail shall not
their bail
bar the accused from challenging or
c. Produce the body of their principal or give
questioning the:
the reason for his non-production; and
a. Validity of his arrest
d. Explain why the accused did not appear
b. Legality of the arrest warrant
before the court when first required to do
c. Regularity of PI, or
so [Sec. 21, Rule 114].
d. Absence of PI
Failing in items (3) and (4) above, a judgment
Provided, that the accused raises them before
shall be rendered against the bondsmen, jointly
entering his plea.
and severally, for the amount of the bail. The
court shall not reduce or otherwise mitigate the
The court shall resolve the objections as early
liability of the bondsmen, unless the accused
as practicable but not later than the start of the
has been surrendered or is acquitted [Sec. 21,
trial of the case [Sec. 26, Rule 114]
Rule 114]

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 [Sec. 23, Rule 114]
CANCELLATION OF BAIL
Application by bondsmen
Upon application of the bondsmen with due
notice to the prosecutor, bail may be cancelled
upon:
a. Surrender of the accused; or
b. Proof of his death [Sec. 22(1), Rule 114].
G. ARRAIGNMENT AND
PLEA
Arraignment
It is the stage where issues are joined and
without which the proceedings cannot advance
further or, if held, will otherwise be void [People
v. Albert, G.R. No. 114001 (1995)].
The accused must be informed of:
1. The reason for the indictment
2. The specific charges the accused is bound
to face
3. The corresponding penalty for the charges

In order to cancel a bail on the ground of

surrender, the surrender must be voluntary.
[Esteban v. Alhambra, G.R. No. 135012
(2004)]

Page 398 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
Rationale
Its importance is based on the constitutional
right of the accused to be informed. It is at this
stage that the accused, for the first time, is
given the opportunity to know the precise
charge that confronts him [Kummer v. People,
G.R. No. 174461 (2013)]
Plea
Pertains to the matter which the accused, on
his arraignment, alleges in answer to the
charge against him
1. How Made
Procedure of Arraignment
The court shall issue an order directing the
public prosecutor to submit the record of the
PI to the branch Clerk of Court for the latter
to attach the same to the record of the case.
↓ the same in the language or dialect known to
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. [Sec. 6,
Rule 114]
↓ court acquires jurisdiction over his person [Sec.
a. If the accused pleads not guilty, either:
1. 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. [Sec. 11(e), Rule 119]
2. He raises a negative defense, that is,
he denies the charge, in which case
regular trial proceeds.
b. If the accused pleads guilty:
1. For a non-capital offense, the court
may receive evidence to determine
the penalty to be imposed [Sec. 4,
Rule 116]
2. For 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
Page 399 of 525
REMEDIAL LAW
prosecution to prove his guilt and the
precise degree of culpability [Sec. 3,
Rule 116]
If the accused does not enter any plea or
makes a conditional plea, a plea of not guilty
is entered by the court [Sec. 1(c), Rule 116]
Arraignment
WHERE MADE: Arraignment is made before
the court where the complaint or information
was filed or assigned for trial. [Sec. 1(a), Rule
116]
HOW AND BY WHOM MADE: The
arraignment shall be made in open court by the
judge or clerk by furnishing the accused with a
copy of the complaint or information, reading
him, and asking him whether he pleads guilty
or not guilty. The prosecution may call at the
trial witnesses other than those named in the
complaint or information [Sec. 1(a), Rule 116]
When held
General rule: The accused should be
arraigned within 30 days from the date the
1(g), Rule 116]
Exceptions: Unless a shorter period is
provided by special law or Supreme Court
circular [Sec. 1(g), Rule 116]
a. When an accused is under preventive
detention, his case should be raffled within
3 days from filing and accused shall be
arraigned within 10 days from receipt by
the judge of the records of the case [RA
8493 (Speedy Trial Act)];
b. Where the complainant is about to depart
from the Philippines with no definite date of
return, the accused should be arraigned
without delay [R.A. 4908]
U.P. LAW BOC CRIMINAL PROCEDURE
Instances that are excluded in computing
the 30 day period for arraignment
1. Time of the pendency of the motion to
quash
2. Time of the pendency of the motion for a
bill of particulars
3. Other causes justifying suspension of the
arraignment [Sec. 1(g), Rule 116]
If the accused is under preventive detention
The pre-trial conference of his case shall be
held within 10 days after arraignment.
Presence of the offended party
The private offended party shall be required to
appear in the arraignment for the purpose of:
a. Plea bargaining
b. Determination of civil liability, and
c. Other matters requiring his presence
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
when the offended party failed to appear
despite due notice.
[Sec. 1(f), Rule 116; Part B(2), A.M. No. 03-1-
09-SC]
Duty of the court before arraignment
The court shall:
a. Inform the accused of his right to counsel;
b. Ask him if he desires to have one; and
c. Must assign a counsel de officio to defend
him, unless the accused:
1. Is allowed to defend himself in person;
or
2. Has employed a counsel of his choice
[Sec. 6, Rule 116]
Before arraignment and plea, the accused
may avail of any of the following:
a. Motion for bill of particulars: to enable
him to properly plead and prepare for trial
[Sec. 9, Rule 116]
b. Motion to suspend arraignment: upon
motion by the proper party, the arraignment
shall be suspended in the ff. cases:
1. Accused appears to be suffering from
unsound mental condition which
effectively renders him unable to fully
Page 400 of 525
REMEDIAL LAW
understand the charge against him and
to plead intelligently. In such case, the
court shall order his mental
examination and, if necessary, his
confinement for such purpose;
2. Existence of a prejudicial question;
3. A petition for review of the resolution
of the prosecutor is pending at either
the DOJ Secretary or the Office of the
President for a period of suspension
not exceeding 60 days from filing of
petition with the reviewing office. [Sec.
11, Rule 116]
c. Motion to quash the complaint or
information: on any of the grounds under
Sec. 3, Rule 117 in relation to Sec. 1, Rule
117
d. Challenge the validity of the arrest or
legality of the warrant or assail the
regularity or question the absence of PI of
the charge [Sec. 26, Rule 114]
If the accused does not question the legality of
the arrest or search, this objection is deemed
waived [People v. Racho y Raquero, G.R. No.
186529 (2010)]
Specific rules
a. Accused must personally appear during
arraignment and enter his plea; counsel
cannot enter plea for the accused. [Sec.
1[b], Rule 116]
b. Accused is presumed to have been validly
arraigned in the absence of proof to the
contrary. [see Sec. 3(m), Rule 131]
c. If the accused has not been validly
arraigned, the judgment is void. [Riano
394, 2016 Ed., citing Taglay v. Daray, G.R.
No. 164258, (2012)]. Note that trial in
absentia may be conducted only after valid
arraignment. [Sec. 14(2), Art. III,
Constitution]
d. If accused went into trial without being
arraigned, subsequent arraignment will
cure the error provided that the accused
was able to present evidence and cross
examine the witnesses of the prosecution
during trial.
If an information is amended in substance
which changes the nature of the offense (not
merely as to form), arraignment on the
U.P. LAW BOC CRIMINAL PROCEDURE
amended information is mandatory.
[Teehankee v. Madayag, G.R. No. 103102
(1992)]
2. When a Plea of Not Guilty
Should Be Entered
a. When the accused so pleaded
b. When he refuses to plead or makes a
conditional plea [Sec. 1(c), Rule 116]
Conditional Plea of Guilty – A plea entered
by the accused subject to the proviso that a
certain penalty be imposed upon him. It is
equivalent to a plea of not guilty. [People v.
Madraga, G.R. No. 129299, (2000)]
c. When he pleads guilty but presents
exculpatory evidence [Sec. 1(d), Rule 116]
d. Where the plea of guilty was compelled by
violence or intimidation [Riano 402, 2016
Ed., citing People v. Baetiong, 2 Phil. 126]
e. When the plea is indefinite or ambiguous
[Riano 403, 2016 Ed., citing People v.
Strong, G.R. No. L-38626 (1975)]
Plea as Admission of Material Facts
General Rule: A plea of guilty is a judicial
confession of guilt. It is an admission of
material facts alleged in the Information,
including the circumstances alleged. [People v.
Comendador, G.R. No. L-38000 (1980)]
Exceptions:
a. When the accused did not fully understand
the meaning and consequences of his plea
Note: In such case, there is a necessity of a re-
arraignment and retaking of his plea [People v.
Nuelan, G.R. No. 123075 (2001)]
b. Where the information is insufficient to
sustain conviction of the offense charged.
[People v. Lopez, G.R. No. 1063, (1947)]
c. Where the information does not charge an
offense, any conviction thereunder being
void
d. Where the court has no jurisdiction
[Cadimas v. Director of Prisons, G.R. No.
L-9725, (1955)]
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3. When Accused May Enter a
Plea of Guilty to a Lesser
Offense
DURING ARRAIGNMENT
Requisites
a. The lesser offense is necessarily included
in the offense charged
b. The plea must be with the consent of both
the offended party and the prosecutor
c. [Sec. 2, Rule 116]
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 {Sec. 1(f), Rule 116]
AFTER ARRAIGNMENT BUT BEFORE
TRIAL
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 [Sec. 2, Rule 116]
AFTER TRIAL HAS BEGUN
After the prosecution has rested its case, a
change of plea to a lesser offense may be
granted by the judge, with the approval of the
prosecutor and the offended party if the
prosecution does not have sufficient evidence
to establish the guilt of the accused for the
crime charged. The judge cannot on its own
grant the change of plea [People v. Villarama,
G.R. No. 99287 (1992)]
4. Accused Pleads Guilty to
Capital Offense; What the
Court Should Do
Conditions that the trial court must observe to
obviate an improvident plea of guilty by the
accused:
a. Searching inquiry into the voluntariness
and full comprehension of the
consequences of the pleas; and
U.P. LAW BOC CRIMINAL PROCEDURE
b. Require prosecution to present evidence to
prove the guilt and precise degree of
culpability of the accused;
c. Accused may present evidence in his
behalf
[Sec. 3, Rule 116]
Note: A plea of guilty to a capital offense does
not result to an immediate rendering of
judgment [Riano, 407, 2016 Ed.]
5. Searching Inquiry
A “searching inquiry” means more than
informing cursorily the accused that he faces a
jail term but so also, the exact length of
imprisonment under the law and the certainty
that he will serve time at the national
penitentiary or a penal colony [People v. Bello,
G.R. No. 130411-14 (1999)]
The procedure in Sec. 3, Rule 116, when the
accused pleads guilty to a capital offense, is
mandatory. [Riano 407, 2016 Ed., citing
People v. Oden, G.R. No. 155511-22 (2004)]
The plea must be clear, definite and
unconditional. It must be based on a free and
informed judgment.
A plea of guilty to a capital offense can be held
null and void where the trial court has
inadequately discharged the duty of conducting
the prescribed "searching inquiry” [People v.
Durango, G.R. Nos. 135438-39 (2000)]
Rationale
This is to enjoin courts to proceed with more
care where the possible punishment is in its
severest form and to avoid improvident pleas
of guilt [People v. Samontanez, G.R. No.
134530 (2000)]
Guidelines for conducting a search inquiry
a. Ascertain from the accused himself:
1. How he was brought into the custody of
the law
2. Whether he had the assistance of a
competent counsel during the custodial
and preliminary investigations, and
Page 402 of 525
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3. Under what conditions he was detained
and interrogated during the
investigations.
b. 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.
c. Elicit information about the personality
profile of the accused (age, socio-
economic status, and educational
background) which may serve as a
trustworthy index of his capacity to give a
free and informed plea of guilty.
d. 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.
e. Inquire if the accused knows the crime with
which he is charged and fully explain to him
the elements of the crime which is the basis
of his indictment.
f. All questions posed to the accused should
be in a language known and understood by
the latter.
g. The trial judge must satisfy himself that the
accused, in pleading guilty, is truly guilty.
The accused must be required to narrate
the tragedy or reenact the crime or furnish
its missing details [People v. Pastor, G.R.
No. 140208 (2002)]
6. Improvident Plea of Guilty to a
Capital Offense
An improvident plea is one without proper
information as to all the circumstances
affecting it; based upon a mistaken assumption
or misleading information/advice [Black’s Law
Dictionary]
Effect of an Improvident Plea
General rule: Plea of guilty should not be
accepted should not be held to be sufficient to
sustain a conviction in the following cases:
1. If the accused does not clearly and fully
understand the nature of the offense
charged
2. If he is not advised as to the meaning and
effect of the technical language often used
U.P. LAW BOC CRIMINAL PROCEDURE
in formal complaints and information in
qualifying the acts constituting the offense,
or
3. If he does not clearly understand the
consequences by way of a heavy and even
a capital penalty flowing from his admission
of his guilt of the crime [People v. De
Ocampo Gonzaga, G.R. No. L-48373
(1984)]
Exception: If the accused appears guilty
beyond reasonable doubt from the evidence
adduced by the prosecution and defense
When improvident plea may be withdrawn
At any time before 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 [Sec. 5,
Rule 116]
The withdrawal of a plea of guilty is not a matter
of right of the accused but of sound discretion
of the trial court [People v. Lambino, G.R. No.
L-10875 (1958)]
The reason for this is that trial has already
begun and the withdrawal of the plea will
change the theory of the case and put all past
proceedings to waste.
Moreover, at this point, there is a presumption
that the plea was made voluntarily.
H. MOTION TO QUASH
Nature of motion to quash (MTQ)
1. Mode by which an accused assails the
validity of a criminal complaint or
information filed against him for
insufficiency on its face in point of law or
defects which are apparent in the face of
the information [Riano 328, 2011 Ed.]
2. Hypothetical admission of the facts alleged
in the information
Note: Fundamental test in determining
sufficiency of the material averments in an
Page 403 of 525
REMEDIAL LAW
information: WON the facts alleged which are
hypothetically admitted would establish the
essential elements of the crime defined by law.
3. Evidence aliunde or matters extrinsic of the
information are not to be considered.
EXCEPT when admissions made by the
prosecution [People v. Dela Rosa, G.R.
No. L-34112 (1980)],
Note: A motion to quash based on double
jeopardy or extinction of the criminal action or
liability, may, by their nature, be based on
matters outside of the allegations of the
information or complaint [Riano]
Form and contents
1. In writing
2. Signed by the accused or his counsel, and
3. Distinctly specify the factual and legal
grounds
[Sec. 2, Rule 117]
When filed
General rule: At any time before entering his
plea, the accused may move to quash the
complaint or information [Sec. 1, Rule 117]
Exception: When the grounds relied upon the
motion are:
1. Failure to charge an offense
2. Lack of jurisdiction over the offense
charged
3. Extinction of the offense or penalty
4. Accused has been previously convicted, or
in jeopardy of being convicted, or acquitted
of the offense charged
They shall not be deemed waived if the
accused failed to file MTQ or to allege them in
the motion. [Sec. 9, Rule 117]
Need not be resolved before issuing
warrant of arrest
The judge had no positive duty to first resolve
the MTQ before issuing a warrant of arrest.
Sec. 5(a), Rule 112 required the judge to
evaluate the prosecutor's resolution and its
supporting evidence within a limited period of
only 10 days [De Lima v. Guerrero, G.R. No.
229781 (2017)]
U.P. LAW BOC CRIMINAL PROCEDURE
1. Grounds
In general
a. Facts charged do not constitute an offense;
b. Court trying the case has no jurisdiction
over the offense charged;
c. Court trying the case has no jurisdiction
over the person of the accused;
d. officer who filed the information had no
authority to do so;
e. The information does not conform
substantially to the prescribed form; (e.g. if
there is no certification)
f. More than one offense is charged, except
when a single punishment for various
offenses is prescribed by law;
g. Criminal action or liability has been
extinguished;
h. Averments which, if true, would constitute
a legal excuse or justification;
i. 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.
[Sec. 3, Rule 117]
The following grounds are exclusive. [Galzote
v. People, G.R. No. 164682 (2011)]
Waiver of Grounds
General rule: Failure of the accused to assert
any ground on a MTQ before he pleads, either
because he did not file MTQ or failed to allege
said ground in the MTQ shall be deemed a
waiver of any objections
Exceptions [OJ-AL-CJA]:
a. Facts charged do not constitute an Offense
b. Court trying the case has no Jurisdiction
over the offense charged
c. Criminal Action or Liability has been
Extinguished
d. Accused has been previously Convicted, or
in Jeopardy of being convicted, or
Acquitted of the offense charged
[Sec. 9, Rule 117]
e. Officer who filed information had no
authority to do so [Quisay v. People, G.R.
No. 216920 (2016)]
Page 404 of 525
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Note: In cases covered by the Rules on
Summary Procedure, MTQ is allowed only if
made on the grounds of lack of jurisdiction over
the subject matter or failure to comply with
barangay conciliation proceedings [Sec. 19,
Rules on Summary Procedure]
a. Facts charged do not constitute
an offense
Where it is clear that the information does not
really charge an offense, the case against the
accused must be dropped immediately [Dela
Chica v. Sandiganbayan, G.R. No. 144823
(2003)]
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 [Sec.
4, Rule 117]
b. Court has no jurisdiction over
the offense charged
In a criminal prosecution, the place where the
offense was committed not only determines
venue, but is an essential element of
jurisdiction [Sec. 15, Rule 110; Lopez v. City
Judge, G.R. No. L-25795 (1966)]
In private crimes, the complaint of the offended
party is necessary to confer authority to the
court [Donio-Teves v. Vamenta Jr., G.R. No. L-
38308 (1984)]
c. Court has no jurisdiction over
the person of the accused
When the accused files a MTQ based on this
ground, he must do so only on this ground. If
he raises other grounds, he is deemed to have
submitted his person to the jurisdiction of the
court [Sanchez v. Demetriou, G.R. No. L-
11171-77 (1993)]
U.P. LAW BOC CRIMINAL PROCEDURE
d. Officer who filed the
information had no authority to
do so
Authority to file and prosecute criminal cases is
vested in:
1. Prosecutor
a. Prosecutor must have territorial
jurisdiction to conduct PI of the offense
[Cudia v. CA, G.R. No. 110315 (1998)]
b. Prior written authority or approval of the
provincial or city prosecutor or chief
state prosecutor or the Ombudsman or
his deputy must first be obtained [Sec.
4, Rule 112]
2. Any peace officer, or public officer charged
with the enforcement of the law, in
Municipal Trial Courts or Municipal Circuit
Trial Courts when the prosecutor assigned
thereto or to the case is not available [Sec.
5, Rule 110]
3. Commission on Elections regarding
violations of election laws [Sec. 2(6), Art.
IX-C, Constitution]
4. By the graft investigating officer for any
information filed in the Sandiganbayan,
with prior approval of the Ombudsman
5. By duly deputized prosecutors and legal
officers of the COMELEC for election
offenses [Sec. 265, Art. XXII, Omnibus
Election Code]
Lack of authority of the officer is not cured by
silence, acquiescence, express consent or
even by amendment. [Cudia v. CA, G.R. No.
110315 (1998)]
e. Complaint or information does
not conform substantially to the
prescribed form
The formal and substantial requirements are
provided for in Secs. 6-12, Rule 110.
General rule: Lack of substantial compliance
renders the accusatory pleading nugatory.
Exception: Mere defects in matter of form may
be cured by amendment [Sec. 4, Rule 117]
Page 405 of 525
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Vague or broad allegations are generally not
grounds for a MTQ. The correct remedy is to
file for a bill of particulars [Sec. 9, Rule 116;
Enrile v. People, G.R. No. 213455 (2015)]
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 alleged defects of the complaint or
information and the details desired [Sec. 9,
Rule 116]
f. More than one offense is
charged
General rule: A complaint or information must
charge only one offense [Sec. 13, Rule 110]
Exceptions:
1. When the law prescribes a single
punishment for various offenses [Sec. 13,
Rule 110]
2. Complex and compound crimes, except
where one offense was committed to
conceal another
3. An offense incidental to the gravamen of
the offense charged
4. A specific crime set forth in various counts,
each of which may constitute a distinct
offense
5. If the accused fails to object; the court may
convict as many as are charged and
proved and impose on him the penalty for
each (Rule 120, Section 3) [People v.
Villamor, G.R. No. 124441 (1998)]
g. Criminal action or liability has
been extinguished
When criminal liability is extinguished:
1. Death of the accused, but liability for
pecuniary penalties is extinguished only if
death occurs before final judgment;
2. Service of sentence, which must be by
virtue of a final judgment and in the form
prescribed by law;
3. Amnesty;
4. Absolute pardon;
5. Prescription of the crime;
6. Prescription of the penalty;
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

7. Pardon in private offenses 1. Upon demurrer to evidence; [Riano 439,

[Art. 89, Revised Penal Code] 2016 Ed., citing People v. Tan, G.R. No.
167526 (2010)]
h. Contains averments that if true 2. Due to violation of right to speedy trial
would constitute a legal excuse (even if dismissal was upon motion of the
accused or with his express consent)
or justification
[Riano 439-440, 2016 Ed., citing Andres v.
Cacdac, G.R. No. L-45650 (1982)]
Examples:
1. Justifying circumstances [Art. 11, RPC]
2. Exempting circumstances [Art. 12, RPC] Dismissal Acquittal
3. Absolutory causes
Basis for Does not Always
i. Accused has been previously
action decide the based on the
convicted or acquitted of the case on the merits.
offense charged, or the case merits.
against him was dismissed or Defendant’s
otherwise terminated without Does not guilt was not
his consent determine proven
innocence or beyond
i. Double jeopardy guilt reasonable
doubt
See Double Jeopardy below.
Does Double Double
ii. Dismissal without express double jeopardy will jeopardy
consent jeopardy not always always
attach? attach attaches
This refers only to dismissal or termination
of the case. It does not Refer to Part the See Provisional Dismissal below.
conviction or acquittal [People v. Labatete,
G.R. No. L-12917 (1960)] 2. Distinguish Motion to Quash
If consent is not express, dismissal will be from Demurrer to Evidence
regarded as final (i.e., with prejudice to refilling)
[Caes v. IAC, G.R. Nos. 74989-90 (1989)] Motion to Demurrer to
quash evidence
The dismissal of a criminal case resulting in
acquittal made with the express consent of the When Filed before Filed after the
accused or upon his own motion will not place filed entering plea prosecution
the accused in double jeopardy, except in the [Sec. 1, Rule has rested its
following cases: 117] case [Sec. 23,
i. Insufficiency of the prosecution’s Rule 119]
evidence
ii. Denial of the right to a speedy trial Basis Insufficiency of Based upon
[Almario v. CA, G.R. No. 127772 (2001)] for grant the complaint the
or or information insufficiency of
When dismissal constitutes acquittal denial on its face the evidence
Dismissal constitutes acquittal when it is adduced by the
granted: prosecution

Page 406 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

[Sec. 23, Rule before

119] judgment”

Grounds Grounds are Ground is

stated in Sec. “insufficiency of
3, Rule 117 evidence” to
convict [Sec.
23, Rule 119]

Leave of Does not May be filed

court require a prior either with
leave of court leave or without 3. Effects of Sustaining the
[Sec. 1, Rule leave of court Motion to Quash
117] [Sec. 23, Rule
119] a. Filing another complaint or
Effect of Court may Grant is information
grant order the filing deemed an
of a new acquittal and General rule: Court may order that another
complaint or would preclude complaint or information be filed [Sec. 5, Rule
information the filing of 117)
[Sec. 4, Rule another
117] information or Exception: If MTQ was based on the following:
appeal by the 1. Criminal action or liability has been
prosecution extinguished
2. Double jeopardy.

Effect of The accused General Rule: b. Discharge of the accused

denial proceeds with Accused does
trial. If not lost his right General rule: If in custody, the accused shall
convicted, he to present not be discharged unless admitted to bail [Sec.
can appeal evidence 5, Rule 117] The order granting the MTQ must
and assign as state either release of the accused or
error the Exception: if cancellation of his bond.
denial of the demurrer was
MTQ. filed without Exception: The accused, if in custody, shall be
leave of court discharged if:
[Sec. 23, Rule 1. No order is made; or
119] 2. Having been made, no new information is
filed within
Remedy If the court, in The order a. The time specified in the order; or
denying the denying the b. Such further time as the court may
motion to motion for allow for good cause
quash acts leave to file a [Sec. 5, Rule 117]
with grave demurrer “shall
abuse of not be Exception to the exception: The accused
discretion, reviewable by shall not be discharged if he is in custody for
then certiorari appeal or by another charge [Sec. 5, Rule 117]
or prohibition certiorari
lies

Page 407 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

c. Amendment of the complaint or extinguishme

information nt of liability
or double
General rule: The court shall order that an jeopardy
amendment be made:
1. If the MTQ is based on an alleged defect of Remedy to Appeal after Appeal the
the complaint or information which can be be availed the trial order
cured by amendment of
2. If the MTQ is based on the ground that the
facts charged do not constitute an offense Consequen Arraignment Amend
[Sec. 4, Rule 117] ce of order information if
possible
Exception: Prosecution is precluded where
the ground for quashal would bar another Note: The remedy for an order denying a MTQ
prosecution for the same offense. is to go to trial, without prejudice to reiterating
the special defenses invoked in their MTQ
The prosecution may appeal from the order of [Serana v. Sandiganbayan, G.R. No. 162059
quashal to the appellate court. (2008)]

If the information was quashed because it did

not allege the elements of the offense charged,
but the facts so alleged constitute another
offense under a specific statute, the
prosecution may file a complaint for such
specific offense where dismissal is made prior
to arraignment and on MTQ [People v.
Purisima, G.R. No. L-42050-66 (1978)]
4. Exception to the Rule that
Sustaining the Motion is Not a
Bar to Another Prosecution
General rule: Grant of the MTQ will not be a
bar to another prosecution for the same
offense

Order Order Exception: It will bar another prosecution

denying granting when the MTQ is based on
MTQ MTQ a. The criminal action or liability has been
extinguished; or
Nature of Interlocutory Final Order b. The accused has been previously
Order convicted, or in jeopardy of being
convicted, or acquitted of the offense
Appealable Not Immediately charged
? appealable appealable [Sec. 6, Rule 117]
absent a but subject to
showing of rules on 5. Double Jeopardy
GAD. If there double
is GAD, then jeopardy
Double jeopardy presupposes that a first
file petition
jeopardy has already attached prior to the
for certiorari
second and that the first has been terminated
Is the main Does not Disposes of because he has already been: (1) convicted;
case dispose of the case (2) acquitted; or (3) the case against him
decided on the case upon its terminated or dismissed without his express
the merits? upon its merits when consent.
merits the ground is
the The right against double jeopardy prohibits the
prosecution for a crime of which he has been

Page 408 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
previously convicted or acquitted [Caes v. IAC,
G.R. No. 74989-90 (1989)]
Purpose of the Rule against Double
Jeopardy
It guarantees that the state shall not be
permitted to make repeated attempts to convict
an individual for an alleged offense, thereby
subjecting him to embarrassment, expense
and ordeal and compelling him to live in a
continuing state of anxiety and insecurity.
Primarily, it prevents the State from:
1. Suing criminal processes as instrument to
harass the accused and wear him out by
the multitude of cases
2. Successively retrying the defendant in the
hope of securing a conviction
3. Successively retrying the defendant in the
hope of securing a greater penalty
RULE OF DOUBLE JEOPARDY
Requisites to successfully invoke double
jeopardy
a. A first jeopardy must have attached;
b. The first jeopardy must have been validly
terminated; and
c. The second jeopardy must be for the same
offense or the second offense necessarily
includes or is necessarily included in the
offense charged in the first information, or
is an attempt to commit the same or a
frustration thereof
[People v. Espinosa, G.R. Nos. 153714-20
(2003)]
Requisites for first jeopardy to attach
a. Valid indictment
b. Before a competent court;
c. Arraignment
d. A valid plea entered, and
e. The accused has been convicted or
acquitted, or the case dismissed or
otherwise validly terminated without his
express consent
[People v. Honrales, G.R. No. 182651 (2010)]
However, a dictated, coerced, and scripted
verdict of acquittal is a void judgment. It neither
binds nor bars anyone [Galman v.
Sandiganbayan, G.R. No. 72670 (1986)]
Page 409 of 525
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Effect
The conviction or acquittal of the accused or
the dismissal of the case shall be a bar to
another prosecution
a. for the offense charged, or
b. for any attempt to commit the same or
frustration thereof, or
c. for any offense which necessarily includes
or is necessarily included in the offense
charged in the former complaint or
information
[Sec. 7, Rule 117]
Double Jeopardy does not apply to these
cases
1. Administrative Cases
The dismissal of the criminal case does not
result in the dismissal of the administrative
case because there exists a difference
between the 2 remedies.
2. When the same criminal act gives rise to
two or more separate and distinct offenses
3. Preliminary investigation (PI)
A PI is merely inquisitorial. It is executive in
character and is not part of the trial; hence,
a PI is not a trial to which double jeopardy
attaches.
4. When the first offense was committed
under the RPC and the second was
committed under a special penal law
5. When two offenses are punished by two
separate penal laws
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

KINDS OF DOUBLE JEOPARDY

Double jeopardy for the same Double jeopardy when an act
offense punished by a law and an
ordinance

General Rule There is identity between the two
offenses not only when the
second offense is exactly the
same as the first, but also when
the second offense is an attempt
to or frustration of or is necessarily
included in the offense charged in
the first information. [Teehankee
Jr. v. Madayag, G.R. 103102
(1992)].
There can still be double jeopardy
although the first offense is
punishable under an ordinance,
while the second is punishable
under a law [Art. III, Sec. 21,
CONST.]

Exception a. The graver offense When an offense penalized by

developed due to supervening ordinance is, by definition, different
facts arising from the same act or from an offense penalized under a
omission constituting the former statute. [People v. Relova, G.R.
charge; No. L-45129 (1987)]
b. The facts constituting the
graver charge became known or
were discovered only after a plea
was entered in the former
complaint or information;
c. The plea of guilty to the
lesser offense was made without
the consent of the prosecutor and
of the offended party except when
offended party failed to appear
during such arraignment. [Sec 7,
Rule 117]

Test Whether or not evidence that

proves one likewise proves the
other. [People v. Ramos, G.R. No.
L-15958 (1961)]

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U.P. LAW BOC CRIMINAL PROCEDURE
6. Provisional Dismissal
Provisional dismissal
Provisional dismissal is dismissal without
prejudice to its being refiled or revived [Los
Baños v. Pedro, G.R. No. 173588 (2009)]
Cases are provisionally dismissed where there
has already been arraigned and the accused
consented to a provisional dismissal.
Requisites for a provisional dismissal
1. There must be express consent of the
accused; and
2. There must be notice to the offended party
[Sec. 8, Rule 117]
Time-bar Rule
Dismissal becomes permanent:
a. One year after issuance of the order
without the case having been revived for
offenses punishable
1. by imprisonment not exceeding 6
years, or
2. by fine of any amount, or
3. by both
b. Two years after issuance of the order
without the case having been revived for
offenses punishable by imprisonment of
more than 6 years
[Sec. 8, Rule 117]
Note: The periods are reckoned from the date
or the order of dismissal
Exception to the periods: The State may
revive beyond the periods provided there is a
justifiable necessity for the delay.
The Court is not mandated to apply Sec. 8
retroactively simply because it is favorable to
the accused. [People v. Lacson, G.R. No.
149453 (2003)]
What to file?
Motion for permanent dismissal [Prof. Sanidad]
The following are conditions sine qua non for
the application of the time-bar rule
a. The prosecution, with the express
conformity of the accused, or the accused
Page 411 of 525
REMEDIAL LAW
moves for the provisional (sin perjucio)
dismissal of the case; or both the
prosecution and the accused move for a
provisional dismissal of the case [Sec. 8,
Rule 117]
b. The offended party is notified of the motion
for the provisional dismissal of the case
c. The court issues an order granting the
motion and dismissing the case
provisionally
d. The public prosecutor is served with a copy
of the order of provisional dismissal of the
case
[People v. Lacson, G.R. No. 149453 (2003)]
A case may be revived by
a. Refiling of the information
b. Filing of a new information for the same
offense or one necessarily included in the
original offense charged
Requirement of Preliminary Investigation
upon Revival of Case
General rule: Upon revival of the case, there
is no need for a new PI
Exceptions:
a. If the original witnesses have recanted their
testimonials or have died
b. If the accused is charged under a new
criminal complaint for the same offense
c. If the original charge is upgraded
d. If the criminal liability is upgraded from
accessory to principal
I. PRE-TRIAL
Its main objective is to achieve an expeditious
resolution of the case. This proceeding is
mandatory in criminal cases and is conducted
before trial [Sec. 1, Rule 118]
U.P. LAW BOC CRIMINAL PROCEDURE
1. Matters to Be Considered
During Pre-Trial
Coverage
All criminal cases cognizable by the
Sandiganbayan, RTC, MeTC, MTCC, MTC
and MCTC [Sec. 1, Rule 118]
Period
General rule: The court shall order a pre-trial
conference after arraignment and within 30
days from the date the court acquires
jurisdiction over the person of the accused.
Exception: A shorter period may be provided
by special laws or SC circulars [Sec. 1, Rule
118]
Things considered
a. Plea bargaining
b. Stipulation of facts
c. Marking for identification of evidence
d. Waiver of objections to admissibility of
evidence
e. Modification of the order of trial if accused
admits the charge but interposes a lawful
defense (reverse trial)
f. Other matters that will promote a fair and
expeditious trial of the civil and criminal
aspects of the case [Sec. 1, Rule 118]
Plea bargaining
Plea bargaining has been defined as "a
process whereby the accused and the
prosecution work out a mutually satisfactory
disposition of the case subject to court
approval" [Estipona Jr. v. Lobrigo, G.R. No.
226679 (2017)]
It usually involves the defendant pleading guilty
to a lesser offense or to one or some of the
counts of a multi-count indictment in return for
a lighter sentence than that for the graver
charge [People v. Mamarion, G.R. No. 137554
(2003)]
The conviction of the accused of the lesser
offense precludes the filing and prosecution of
the offense originally charged in the
information, except when the plea of guilty to a
Page 412 of 525
REMEDIAL LAW
lesser offense is without the consent of the
offended party and the prosecutor [People v.
De Luna, G.R. No. L-77969 (1989); Sec. 7(c),
Rule 117, see Sec. 2, Rule 116]
With Sec. 23 of R.A. 9165 being declared
unconstitutional in Estipona Jr. v. Lobrigo [G.R.
No. 226679 (2017)], offenses involving
dangerous drugs may now be the subject of
plea bargain [see DOJ Circular No. 61 (2017)]
Stipulation of facts
General Rule: Stipulation of facts is allowed in
criminal cases
Exception: Circumstances that qualify a crime
and increases its penalty to death cannot be
the subject of stipulation [People v. Sitao, G.R.
No. 146790 (2002)]
Marking for identification of evidence
No evidence may be presented and offered
during trial other than those identified and
marked during the pre-trial, except when
allowed by the court for good cause shown.
Proffer of exhibits is not allowed. It ought to be
done at the time a party closes the presentation
of evidence. [People v. Santiago, G.R. No. L-
80778 (1989)]
Role of the judge before pre-trial
During the pre-trial, the judge shall be the one
to ask questions on issues raised therein and
all questions must be directed to him to avoid
hostilities between the parties [Item B.7, A.M.
No. 03-1-09-SC]
2. What the Court Should Do
When Prosecution and
Offended Party Agree to the
Plea Offered by the Accused
The Court shall:
a. Issue an order which contains the plea
bargaining arrived at
b. Proceed to receive evidence on the civil
aspect of the case; and
U.P. LAW BOC CRIMINAL PROCEDURE
c. Render and promulgate judgment of
conviction, including the civil liability or
damages duly established by the evidence
[Item B.5, A.M. No. 03-1-09-SC]
General rule: Court approval is required.
Exception: Agreements not covering matters
referred to in Sec. 1, Rule 118 (supra), need
not be so approved [Item B.8, A.M. No. 03-1-
09-SC]
Effect
The stipulations become binding on the parties
who made them. They become judicial
admissions of the fact or facts stipulated
[Bayas v. Sandiganbayan, G.R. No. 143689-91
(2002)])
3. Pre-Trial Agreement
Requirements
a. Reduced in writing;
b. Signed by the accused and counsel;
c. With approval of court if agreements cover
matters in Sec. 1, Rule 118
[Sec. 2, Rule 118]
Effects:
1. Constitutional right to present evidence is
waived [Rivera v. People, G.R. No. 163996
(2005)]
2. If the requisites are not followed –
admissions shall be inadmissible as
evidence [Item I-B[8], A.M. No. 03-1-09-SC
(2004)]
All proceedings during pre-trial shall be:
1. Recorded
2. Transcripts prepared
3. Minutes signed by the parties and their
counsel
4. Non-Appearance during Pre-
Trial
Who must be present during pre-trial
1. Counsel of accused
2. Prosecutor
Page 413 of 525
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Note: The accused is not required to attend
(unless ordered by the court) and is merely
required to sign the written agreement arrived
at in the pre-trial conference, if he agrees to the
contents of such. The complainant is also not
required to appear during pre-trial. It is the
prosecutor who is required to appear at the pre-
trial [People v. Judge Tac-An, G.R. No. 148000
(2003)]
The court may impose proper sanctions or
penalties, if counsel for the accused or the
prosecutor to enforce the mandatory character
of the pre-trial in criminal cases:
a. Does not appear at the pre-trial
conference; and
b. Does not offer an acceptable excuse for his
lack of cooperation [Sec. 3, Rule 118]
5. Pre-Trial Order
Pre-trial order shall:
a. Be issued by the trial judge;
b. Be issued within 10 days after the
termination of the pre-trial
c. Contain the following:
1. Actions taken
2. Facts stipulated
3. Evidence marked
4. Admissions made
5. Number of witnesses to be presented;
and
6. Schedule of trial
Effect
a. Binds the parties
b. Limits the trial to those matters not
disposed of; and
c. Controls the course of the action during
trial, unless modified by the court to prevent
manifest injustice
[Sec. 4, Rule 118]
The procedure is substantially the same in civil
cases, except that any modification of the pre-
trial order in civil cases must be made before
the trial. No such limitation is provided for in
criminal cases.
U.P. LAW BOC CRIMINAL PROCEDURE
APPLICATION OF JUDICIAL AFFIDAVIT
RULE
a. The Judicial Affidavit Rule shall apply to all
criminal actions:
1. Where the maximum of the imposable
penalty does not exceed six years;
2. Where the accused agrees to the use
of judicial affidavits, irrespective of the
penalty involved; or
3. With respect to the civil aspect of the
actions, whatever the penalties
involved are.
b. The prosecution shall submit the judicial
affidavits of its witnesses not later than five
days before the pre-trial, serving copies of
the same upon the accused. The
complainant or public prosecutor shall
attach to the affidavits such documentary
or object evidence as he may have,
marking them as Exhibits A, B, C, and so
on. No further judicial affidavit,
documentary, or object evidence shall be
admitted at the trial.
c. If the accused desires to be heard on his
defense after receipt of the judicial
affidavits of the prosecution, he shall have
the option to submit his judicial affidavit as
well as those of his witnesses to the court
within ten days from receipt of such
affidavits and serve a copy of each on the
public and private prosecutor, including his
documentary and object evidence
previously marked as Exhibits 1, 2, 3, and
so on. These affidavits shall serve as direct
testimonies of the accused and his
witnesses when they appear before the
court to testify.
[Sec. 9, AM 12-8-8-SC]
J. TRIAL
1. Instances When Presence of
Accused is Required by Law
Right of the Accused to be Present
In all criminal prosecutions, the accused shall
have the right to be present and defend in
person and by counsel at every stage of the
Page 414 of 525
REMEDIAL LAW
proceedings, from arraignment to promulgation
of the judgment [Sec. 1(c), Rule 115].
Instances where presence of accused is
mandatory [AP]:
a. At Arraignment; [Sec. 1(b), Rule 116]
b. At the Promulgation of judgment, unless
the conviction is for a light offense [Sec. 6,
Rule 120]
Waiver of right to be present
General rule: The accused may waive his
presence at the trial pursuant to the stipulations
set forth in his bail [Sec. 1(c), Rule 115]
Exception: Unless his presence is specifically
ordered by the court for purposes of
identification [Sec. 1(c), Rule 115]
Exception to the exception: The presence of
the accused is no longer required when he
unqualifiedly admits in open court after
arraignment that he is the person named as
defendant in the case on trial [Carredo v.
People, G.R. No. 77542, March 19, 1990]
Other instances of waiver [WE]
a. The absence of the accused Without
justifiable cause at the trial of which he had
notice
b. When an accused under custody Escapes
until custody over him is regained
[Sec. 1(c), Rule 115]
2. Suspension on Account of
Absence of Witnesses
Effect of Absence of Witness
Any period of delay resulting from the absence
or unavailability of an essential witness shall be
excluded in computing the time within which
trial must commence [Sec. 3, Rule 119]
Requisites for exclusion of the period of
delay: [AUE]
a. Witness is Absent or Unavailable
● “Absent”: whereabouts are unknown
or cannot be determined by due
diligence
U.P. LAW BOC CRIMINAL PROCEDURE
● “Unavailable”: whereabouts are
known but presence for trial cannot be
obtained by due diligence
b. Witness must be Essential [Sec. 3(b),
Rule 119]
● “Essential”: indispensable,
necessary, or important in the highest
degree [Riano 530, 2011 Updated Ed.,
citing 5 Black’s Law Dictionary 490]
Motion for Bail: A remedy to secure
appearance of a material witness
Either party may file a motion for bail with
proof/under oath that a material witness will
testify when required. When the court is
satisfied of such, it may order the witness to
post bail.
Effect of refusal to post bail
If the material witness refuses to post bail, the
court shall commit him to prison until he
complies or is legally discharged after his
testimony has been taken. [Sec. 14, Rule 119]
3. Trial in absentia
Requisites for Trial in Absentia [ANU]
a. Accused has been Arraigned
b. He was duly Notified of trial
c. His failure to appear is Unjustified
[Bernardo v. People, G.R. No. 166980 (2007)]
Purpose
This is to speed up disposition of cases.
[People v. Agbulo, G.R. No. 73875 (1993)]
4. Remedy When Accused is not
Brought to Trial within the
Prescribed Period
Right to Speedy Trial: A Constitutional
Right
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 Sec. 14(2), Art. III,
Constitution [Sec. 10, Rule 119]
Page 415 of 525
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Purpose of Right to Speedy Trial
The rights of the accused to a speedy trial and
speedy disposition of the case are meant to
prevent the oppression of the accused by
holding criminal prosecution, suspended over
him for an indefinite time, and to prevent delays
in the administration of justice. [Corpuz v.
Sandiganbayan, G.R. No. 162214 (2004)]
Important Periods to Observe
1. Between acquisition of jurisdiction over the
person of the accused to arraignment and
pre-trial:
a. Detained accused: Within 10 days
b. Non-detained accused: Within 30 days
[A.M No 15-06-10-SC, III No 8]
2. Between receipt of pre-trial order to trial:
Within 30 days [Sec. 1, Rule 119]
3. Periods of delay excluded from the
computation [Sec. 3, Rule 119]
Factors to consider when assessing denial
of right to speedy trial [DRAP]
a. Duration of the delay
b. Reason therefor
c. Assertion of the right or failure to assert it,
and
d. Prejudice caused by such delay
[Corpuz v. Sandiganbayan, G.R. No. 162214
(2004)]
Remedy
Motion to dismiss on the ground of denial of his
right to speedy trial. [Sec. 9, Rule 119]
Dismissal on the ground of violation of the
right to speedy trial has an effect similar to
that of acquittal
The dismissal shall be subject to the rules on
double jeopardy. [Sec. 9, Rule 119]
Waiver of Right to Speedy Trial
Failure of the accused to move for dismissal
prior to trial shall constitute a waiver of the right
to dismiss on the ground of denial of his right to
speedy trial [Sec. 9, Rule 119]
When there is no violation of the right to
speedy trial
There is no violation of the right where the
delay is imputable to the accused. When the
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

accused resorts to tactical maneuvers, he
waives his right to speedy trial. [People v.
Jardin, G.R. Nos. L-33037-42 (1983)]
Right to Speedy Trial v. Right to Speedy
Disposition of Cases
Right to Speedy
Right to Speedy
Disposition of
Trial
Cases
Reckoning Point
First day of trial Date when the case
is submitted for
decision
Application
N/A When considering
delay for the purpose
of dismissal on the
ground of violation of
right to speedy
disposition, delay
“pre-trial” may be
considered (i.e.,
delay during
preliminary
investigation)
[Cosculluela v.
Sandiganbayan,
G.R. No. 191411
(2013)]
Burden of proof
a. The accused has the burden of proving the
ground of denial of right to speedy trial for
the motion.
b. The prosecution has the burden of going
forward with the evidence to establish the
exclusion of time under Sec. 3, Rule 119.
[Sec. 9, Rule 119]
5. Requisites for Discharge of
the Accused to Become a
State Witness
Requisites for Discharge to be Proper
[TRHS]
a. Two or more persons are jointly charged
with the commission of any offense.
b. The prosecution files the motion before
Resting its case
c. The prosecution is required to present
evidence and the sworn statement of each
proposed state witness at a Hearing in
support of the discharge
d. The court is Satisfied that the conditions
required by the Rules are present. [Sec.
17, Rule 119]
Requisites as to the Testimony to be a State
Witness [ANCoMM]
a. Absolute necessity for the testimony of the
accused whose discharge is requested
• He alone has the knowledge of the
crime, and not when his testimony
would simply corroborate or strengthen
the evidence in the hands of the
prosecution [Flores v. Sandiganbayan,
G.R. No. L-63677 (1983)];
b. There is No other direct evidence available
for the proper prosecution of the offense,
except the testimony of the said accused
c. The testimony can be substantially
Corroborated in its material points
d. The accused does not appear to be the
Most guilty
e. The accused has not, at any time, been
convicted of any offense involving Moral
turpitude [Sec. 17, Rule 119]
6. Effects of Discharge of
Accused as State Witness
Effects of Discharge as State Witness
a. Evidence adduced in support of the
discharge shall automatically form part of
the trial [Sec. 17, Rule 119]
• Note: If the motion to discharge is
denied, the sworn statement is
inadmissible as evidence.
b. Discharge operates as an acquittal and a
bar to further prosecution for the same
offense [Sec. 18, Rule 119]
Exception: When the accused fails or refuses
to testify against his co-accused
Notes:
● Any error in asking for and in granting the
discharge cannot deprive the one

Page 416 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
discharged of the acquittal and the
constitutional guaranty against double
jeopardy [People v. Verceles, G.R. No.
130650 (2002)]
● Subsequent amendment of the information
does not affect discharge [People v. Taruc,
G.R. No. L-14010 (1962)]
7. Demurrer to Evidence
What is a Demurrer
A demurrer to evidence is a motion to dismiss
due to the insufficiency of the evidence
presented by the prosecution to overturn the
presumption of innocence in favor of the
accused. [Riano 490, 2016 Ed.]
Dismissal on the Grounds of Insufficiency
of Evidence
a. May be initiated by the court motu proprio,
after giving the prosecution the opportunity
to be heard; or
b. Upon demurrer to evidence filed by the
accused
[Sec. 23, Rule 119]
How Demurrer to Evidence is Made
1. With Leave of Court:
● Oral Motion: After the prosecution has
rested its case, the court shall inquire
from the accused if he desires to move
for leave of court to file a demurrer to
evidence or proceed with the
presentation of his evidence. If the
accused orally moves for leave of court
to file a demurrer to evidence, the court
shall orally resolve the same [A.M No
15-06-10-SC, III No 13 (d)]
● Written Motion: It must specifically
state its grounds. Filed within a non-
extendible period of 5 days after the
prosecution rests its case. Prosecution
may then oppose within a non-
extendible period of 5 days from
receipt. [Sec. 23, Rule 119]
● If leave of court is granted, the
demurrer must be filed within a non-
extendible period of 10 days from the
date leave of court is granted, and the
corresponding comment shall be filed
within a non-extendible period of 10
Page 417 of 525
REMEDIAL LAW
days from receipt of demurrer to
evidence. [A.M No 15-06-10-SC, III No
13 (d)]
2. Without Leave of Court: 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. [A.M No 15-06-10-SC, III No 13
(d)]
Test of Sufficiency of Prosecution’s
Evidence:
The evidence of the prosecution must prove
beyond reasonable doubt the:
a. Commission of the crime; and
b. Precise degree of participation of the
accused
[Singian, Jr.v. Sandiganbayan, G.R. Nos.
195011-19 (2013)]
Effect of granting demurrer
The court dismisses the action on the ground
of insufficiency of evidence [Sec. 23, Rule 119]
This amounts to acquittal of the accused
[People v. Sandiganbayan, G.R. No. 164577
(2010)]
Note: The order granting the demurrer is not
appealable but may be reviewed via certiorari
under Rule 65 [People v. Sandiganbayan, G.R.
No. 164577 (2010)]
Effect of denial of motion for leave to file
demurrer
a. Accused may choose between
1. Filing the demurrer even without leave,
or
2. Adducing evidence for his defense
[Sec. 23, Rule 119]
b. Order denying the motion for leave or order
denying the demurrer itself, is not
reviewable by appeal or by certiorari before
judgment [Sec. 23, Rule 119];
Procedure if there are several accused
If there are 2 or more accused and only one
presents a demurrer without leave of court:
● the court may defer resolution until
decision is rendered on the other accused.
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

If it can be shown from the decision that the Grant of No appeal is

resolution on the demurrer was rendered not demurrer allowed because
only on the basis of the prosecution’s evidence entitles the grant is
but also on the evidence adduced by his co- plaintiff to tantamount to
accused, then the demurrer is deemed appeal and if acquittal
resolved
dismissal is
reversed,
Right of the accused to present evidence Appeal
after demurrer is denied the
Filed defendant is
Filed with deemed to
without
leave have waived
leave
of court his right to
of court
present
Waives the
May adduce evidence
right to
Right to evidence in Cannot be Court may on its
present
Present his defense done by own initiative
evidence
Evidence [Sec. 23, court motu dismiss the
[Sec. 23,
Rule 119] Motu proprio action after
Rule 119]
Purpose is to proprio giving
determine Submits the prosecution an
whether or case for opportunity to be
not the judgment on heard
Purpose demurrer the basis of
was filed the evidence 8. Guidelines on Continuous
merely to for the Trial (A.M. No. 15-06-10-SC)
stall the prosecution
proceedings a. Applicability

Demurrer in a Civil Case v. Criminal Case Cases to which the Guidelines Apply
Civil Criminal 1. Newly filed criminal cases, including those
Case Case governed by Special Laws and Rules, in
Failure of Insufficiency of the First and Second Level Courts, the
plaintiff to evidence Sandiganbayan and the Court of Tax
Premise show that he Appeals as of Sept 1, 2017
2. Pending criminal cases with respect to the
is entitled to
remainder of the proceedings
relief
Requires no May be filed with Note: These guidelines are not applicable to
Leave of
leave of or without leave cases covered by the Rule on Summary
Court
court of court Procedure
Denial of Accused may
demurrer lose his right to b. Prohibited and Meritorious
does not present Motions
Right to
make the evidence if he
present
defendant filed the Prohibited Motions [JPreReQBAS]
evidence
lose his right demurrer The following motions are prohibited and shall
to present without leave of be denied outright before the scheduled
evidence court

Page 418 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
arraignment without need of comment and/or
opposition:
1. Motion for Judicial determination of
probable cause
2. Motion for Preliminary Investigation:
a. When it is filed beyond the 5-day
reglementary period in inquest
proceedings under Sec. 6, Rule 112
b. When required under Sec. 8, Rule 112,
or allowed in inquest proceedings and
the accused failed to participate in the
preliminary investigation despite due
notice
3. Motion for Reinvestigation of the
prosecutor recommending the filing of
information once the information has been
filed before the court:
a. If the motion is filed without prior leave
of court
b. When preliminary investigation is not
required under Sec. 8, Rule 112, and
c. 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
4. Motion to Quash Information when the
ground is not one of those stated in Sec. 3,
Rule 117
5. Motion for Bill of particulars that does not
conform to Sec. 9, Rule 116
6. Motion to suspend Arraignment based on
grounds not stated under Sec. 11, Rule
116
7. Petition to Suspend criminal action on the
ground of Prejudicial question, when no
civil case has been filed, pursuant to Sec.
7, Rule 111
Meritorious Motions [WASSlapp]
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:
1. Motion to Withdraw information, or to
downgrade the charge in the original
Page 419 of 525
REMEDIAL LAW
information, or to exclude an accused
originally charged therein, filed by the
prosecution as a result of a reinvestigation,
reconsideration, and review
2. Motion to Quash Warrant of Arrest
3. Motion to Quash Search Warrant under
Sec. 14 of Rule 121 or motion to suppress
evidence
4. Motion to dismiss on the ground that
criminal case is a Strategic Lawsuit against
Public Participation (SLAPP) under Rule 6
of the Rules of Procedure for
Environmental Cases
c. Arraignment and Pre-Trial
Schedule of Arraignment and Pre-Trial
● If accused is detained: within 10 calendar
days from receipt of case
● If accused is not detained: within 30
calendar days from acquiring jurisdiction
over the person
Notice of Arraignment and Pre-Trial
Notice shall be sent to the accused, his
counsel, private complainant or complaining
law enforcement agent, public prosecutor, and
witnesses whose names appear in the
information for purposes of plea bargaining,
arraignment and pre-trial. [A.M No 15-06-10-
SC, III No 8(b)]
Waiver of Reading of the Information
The court may allow a waiver of the reading of
the information if:
a. There are multiple cases,
b. There is personal examination of the
accused by the court,
c. Full understanding and express consent of
the accused and his counsel,
d. Such consent is expressly stated in both
the minutes/certificate of arraignment and
order of arraignment,
e. The court shall explain the waiver to the
accused in a language/dialect known to
him and ensure his full understanding of
the consequences [A.M No 15-06-10-SC,
III No 8(c)]
U.P. LAW BOC CRIMINAL PROCEDURE
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 the private
offended party in private crimes, or the
arresting officer in victimless crimes, is present
to give his consent with the conformity of the
public prosecutor to the plea bargaining.
Thereafter, judgement shall be immediately
rendered in the same proceedings. [A.M No
15-06-10-SC, III No 8(d (i))]
Plea of Guilty to the Crime Charged in the
Information
If the accused pleads guilty to the crime
charged in the information, judgement shall be
immediately rendered except in those cases
involving capital punishment. [A.M No 15-06-
10-SC, III No 8(d (ii))]
Where No Plea Bargaining or Plea of Guilty
Takes Place
If the accused does not enter a plea of guilty,
the court shall immediately proceed with the
arraignment and the pre-trial. [A.M No 15-06-
10-SC, III No 8(d (iii))]
Arraignment and Preliminary Conference of
Mediatable Cases Subject to the Rule on
Summary Procedure
The arraignment and preliminary conference
shall be held simultaneously and the court shall
take up all the matters required under Sec. 14,
Rule on Summary Procedure during the
preliminary conference. [A.M No 15-06-10-SC,
III No 8(e)]
Absence of parties in the pre-trial
The court shall proceed with the pre-trial
despite the absence of the accused and/or
private complainant, provided:
a. They were duly notified, and
b. The counsel for the accused and public
prosecutor are present. [A.M No 15-06-10-
SC, III No 8(f (i))]
Stipulations
Proposals for stipulations shall be done with
the active participation of the court itself and
shall not be left alone to the counsels. [A.M No
15-06-10-SC, III No 8(f (ii))]
Page 420 of 525
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Marking of Evidence
The documentary evidence of the prosecution
and the accused shall be marked. [A.M No 15-
06-10-SC, III No 8(f (iii))]
Pre-Trial Order
The Pre-trial Order shall immediately be served
upon the parties and counsel on the same day
after the termination of the pre-trial. [A.M No
15-06-10-SC, III No 8(f (iv))]
d. Trial and Memoranda
TRIAL
Examination of witnesses
The court shall encourage the accused and the
prosecution to avail of:
a. For the accused: Application for
examination of witness for the accused
before trial [Sec. 12 and 13, Rule 119]
b. For the prosecution: Conditional
Examination of Witness for the prosecution
[Sec. 15, Rule 119; A.M No 15-06-10-SC,
III No 13 (a)]
Absence of counsel de parte
In the absence of the counsel de parte, the
hearing shall proceed upon appointment by the
court of a counsel de officio. [A.M No 15-06-10-
SC, III No 13 (b)]
Oral Offer of Evidence
• How made: the offer of evidence, the
comment/objection thereto, and the court
ruling shall be made orally.
o If exhibits are attached to the record: In
making the offer, the counsel shall cite
the specific page number of the court
record where the exhibits being offered
are found. 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.
• When made: on the same day after the
presentation of his last witness, the
opposing party is required to immediately
U.P. LAW BOC CRIMINAL PROCEDURE
interpose his oral comment/objection
thereto. Thereafter, the court shall make a
ruling on the offer of evidence in open court
[A.M No 15-06-10-SC, III No 13 (c)]
Presentation of Rebuttal and Sur-rebuttal
Evidence
If the court grants the motion to present rebuttal
evidence, the prosecution shall immediately
proceed with its presentation after the defense
has rested its case, and orally rest its case in
rebuttal after the presentation of its last rebuttal
witness. Thereafter, the accused shall
immediately present sur-rebuttal evidence, if
there is any, and orally rest the case after the
presentation of its last sur-rebuttal witness.
Thereafter, the court shall submit the case for
decision. [A.M No 15-06-10-SC, III No 13 (e)]
One day examination of witness rule
The court shall strictly adhere to the rule that a
witness has to be fully examined in one day.
[A.M No 15-06-10-SC, III No 13 (f)]
MEMORANDA
Submission of Memoranda
• Submission of memoranda is discretionary
on the part of the court
• Format:
o Does not exceed 25 pages
o Single spaced
o Legal sized paper
o Size 14 font
• Period to submit shall be non-extendible
and shall not suspend the running of the
period of promulgation of the decision. With
or without memoranda, the promulgation
shall push through as scheduled. [A.M No
15-06-10-SC, III No 14]
e. Promulgation
Schedule of Promulgation
• Date of promulgation shall be announced
in open court and included in the order
submitting the case for decision
• Date shall not be more than 90 calendar
days from the date the case is submitted
for decision
Page 421 of 525
REMEDIAL LAW
o Exception: Case is covered by Special
Rules and other laws which provide for
a shorter period [A.M No 15-06-10-SC,
III No 16(a)]
Resolution of motion for reconsideration of
judgment of conviction or motion for new
trial
A motion for reconsideration of judgment of
conviction or motion for new trial filed within 15
days from promulgation shall be resolved
within a non-extendible period of 10 calendar
days from the submission of the comment of
the prosecution. With or without comment, the
court shall resolve the motion within the 10-day
period. [A.M No 15-06-10-SC, III No 16(b)]
K. JUDGMENT
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 [Sec. 1,
Rule 120]
1. Requisites of a Judgment
Requisites
a. Written in the official language
Note: If given verbally, it is incomplete
[People v. Catolico, G.R. No. L-31260
(1972)]
b. Personally and directly prepared by the
judge
c. Signed by the judge
d. Contains clearly and distinctly a statement
of the facts and the law upon which
judgment is based
[Sec. 1, Rule 120]
There is sufficient compliance if the decision
summarizes the evidence of both parties,
synthesizes the findings and concisely narrates
how the offense was committed.
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Jurisdictional requirements fails to object to it before trial, the court may

a. Jurisdiction over the subject matter convict him of as many offenses as are
b. Jurisdiction over the territory charged and proved, and impose on him the
c. Jurisdiction over the person of the accused penalty for each offense, setting out separately
[Riano, 499, 2016 Ed., citing Cruz v. CA, G.R. the findings of fact and law in each offense
No. 123340 (2002) and Antiporda v. [Sec. 3, Rule 120]
Garchitorena, G.R. No. 133289 (1999)]
Variance between allegation and proof
Judge who renders decision (Variance Doctrine)
The judge who presided over the entire trial General rule: The defendant can be convicted
would be in a better position to ascertain the only of the crime with which he is charged
truth or falsity of the testimonies. But the judge [Riano 504, 2016 Ed.]
who only took over can render a valid decision
by relying on the transcript. It does not violate However, a minor variance between the
due process [People v. Badon, G.R. No. information and the evidence does not alter the
126143 (1999)] nature of the offense, nor does it determine or
qualify the crime or penalty, so that even if a
2. Contents of Judgment discrepancy exists, this cannot be pleaded as
a ground for acquittal [People v. Noque, G.R.
No. 175319 (2010)]
a. Conviction
Exception: Accused shall be convicted if:
The judgment of conviction shall state [LQ-P-
a. Offense proved which is included in the
Pe-CD]:
offense charged (offense proved is lesser)
1. The Legal Qualification of the offense
– some or all of the ingredients of the
constituted by the acts committed by the
offense charged constitutes the offense
accused and the aggravating/mitigating
proved
circumstances which attended its
commission
Example: Murder includes homicide;
2. The Participation of the accused in the
Serious physical injuries includes less
offense, whether as principal, accomplice
serious or slight physical injuries; Robbery
or accessory after the fact
includes theft [Riano]
3. The Penalty imposed upon the accused
4. The Civil liability or Damages caused by his
b. Offense charged which is included in the
wrongful act/omission to be recovered from
offense proved (offense charged is lesser)
the accused by the offended party, if there
– essential ingredients of the offense
is any, unless the enforcement of the civil
charged constitute or form part of the
liability by a separate civil action has been
ingredients of the offense proven
reserved/waived.
[Sec. 2, Rule 120]
Example: Less serious physical injuries are
included in serious physical injuries; Acts of
The penalty should not be imposed in the
lasciviousness are included in rape; Theft
alternative. There should be no doubt as to the
is included in robbery [Riano]
offense committed and the penalty for it.
Where a complex crime is charged and the
Judgment for two or more offenses
evidence fails to support the charge as to one
Also known as duplicitous complaint or
of the component offenses, the accused can be
information [Prof. Sanidad]
convicted of the one which is proven [People v.
Llaguno, G.R. No. 91262 (1998)]
When two or more offenses are charged in a
single complaint or information but the accused

Page 422 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
Exception to the exception: Where there are
facts that supervened after the filing of the
information which change the nature of the
offense.
b. Acquittal
The judgment of acquittal shall state whether:
1. The evidence of the prosecution absolutely
failed to prove the guilt of the accused; or
2. Merely failed to prove his guilt beyond
reasonable doubt.
In either case, the judgment shall determine if
the act or omission complained from which the
civil liability might arise did not exist.
[Sec. 2, Rule 120]
Acquittal Dismissal
Effect Terminates the case
Decision on Not on the
the merits merits but no
Decision is based on a finding that
based on finding that accused is
the accused not guilty
is not guilty
Effect of Acquittal on Civil Liability
General Rule: Acquittal based on failure to
prove guilt beyond reasonable doubt does not
extinguish the civil liability arising from his acts.
[Lontoc v. MD Transit, G.R. No. L-48949
(1988)]
Exception: Acquittal extinguishes civil liability
only when the judgment includes a declaration
that the facts from which the civil liability might
arise did not exist [Lontoc v. MD Transit, G.R.
No. L-48949 (1988)] Thus:
1. The court may nonetheless hold the
accused civilly liable in favor of the
offended party, or it may deny the award of
civil damages expressly or impliedly by
being silent on the matter.
2. The losing party may appeal the ruling on
the civil liability, as in any other ordinary
Page 423 of 525
REMEDIAL LAW
appeal, in his name and not in the name of
the People.
The Court is not precluded from expressing
disapproval of certain acts
General rule: The court has authority to
express disapproval of certain acts even if
judgment is for acquittal.
Exception: The court is not permitted to
censure the accused in a judgment for acquittal
– no matter how light, a censure is still a
punishment.
3. Promulgation of Judgment;
Instances of Promulgation of
Judgment in Absentia
IN GENERAL
Promulgation of judgment is an official
proclamation or announcement of the decision
of the court [Pascua v. Court of Appeals, G.R.
No. 140243 (2000), citing Jacinto, Sr. 521,
Commentaries and Jurisprudence on the
Revised Rules of Court [Criminal Procedure],
1994 Ed.]
Requisites
a. There must be a court legally organized or
constituted; and there must be a judge, or
judges, legally appointed or elected and
actually acting, either de jure or de facto
[Luna v. Rodriguez, G.R. No. 12647
(1917)]
b. Said judgment must be duly signed and
promulgated during the incumbency of the
judge who penned it [Payumo v.
Sandiganbayan, G.R. No. 151911 (2011)]
c. The judgment is promulgated by reading it
in the presence of the accused and any
judge of the court in which it was rendered
[Sec. 6, Rule 120]
Failure to promulgate
Where there is no promulgation of judgment,
no right to appeal accrues. Merely reading the
dispositive portion of the decision is not
sufficient [Pascua v. CA, G.R. No. 140243
(2000)]
U.P. LAW BOC CRIMINAL PROCEDURE
Notice for promulgation
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 [Sec. 6, Rule 120]
PROMULGATION IN CERTAIN
CIRCUMSTANCES
a. When the judge is absent or
outside the province or city
The judgment may be promulgated by the clerk
of court [Sec. 6, Rule 120].
b. Where Presence of Accused Is
Required; Exceptions
General rule: Presence of the accused is
mandatory in the promulgation of judgment.
Exception: If the conviction is for a light
offense, the judgment may be pronounced in
the presence of his counsel or representative
[Sec. 6, Rule 120]
If the judgment is for conviction and the failure
of the accused to appear was without justifiable
cause, he shall lose the remedies available in
the Rules against the judgment and the court
shall order his arrest.
However, within 15 days from promulgation of
judgment, he may surrender and file a motion
for leave of court to avail of these remedies. He
shall state the reasons for his absence. If he
proves his absence was for a justifiable cause,
he shall be allowed to avail of the remedies
within 15 days from notice [Sec. 6, Rule 120;
People v. De Grano, G.R. No. 167710 (2009)]
Effect of failure of the accused to appear at
the scheduled date of promulgation
Promulgation is made by recording the
judgment in the criminal docket and serving a
Page 424 of 525
REMEDIAL LAW
copy at the accused’s last known address or
through counsel [Sec. 6, Rule 120]
c. 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. 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 [Sec.
6, Rule 120]
d. Promulgation when a judge is
no longer a judge
A judgment promulgated after the judge who
signed the decision has ceased to hold office is
not valid and binding. In like manner, it cannot
be promulgated after the retirement of the
judge [Nazareno v. CA, G.R. No. 111610
(2002)]
4. Instances when Judgment
Becomes Final
Modification of judgment
A judgment of conviction may, upon motion of
the accused, be modified or set aside before
the judgment becomes final or before appeal is
perfected [Sec. 7, Rule 120, Rules of Court]
When does judgment become final
a. After the lapse of the period for perfecting
an appeal;
b. When the sentence has been
partially/totally satisfied or served;
c. The accused has waived in writing his right
to appeal;
d. When the accused has applied for
probation; and
U.P. LAW BOC CRIMINAL PROCEDURE
Note: Appeal and Probation are mutually
exclusive remedies. It is implicit in an
application for probation that there is an
admission of guilt. [Prof. Bautista]
e. Judgment also becomes final when
judgment is an acquittal [People v.
Sandiganbayan, G.R. No. 164577 (2010)]
Exception: where the death penalty is
imposed [Sec. 7, Rule 120]
After finality, the TC is divested of authority to
amend/alter the judgment, except to correct
clerical errors. See Quirino v. PNB [G.R. No. L-
9159 (1957)]
Remedies of the Accused against a
Judgment of Conviction
1. Modification of judgment [Sec. 7, Rule 120]
2. Reopening of proceedings [Sec. 24, Rule
119]
3. Motion for new trial [Sec. 1, Rule 121]
4. Motion for reconsideration [Sec. 1, Rule
120]
5. Appeal from judgment [Rule 122]
L. NEW TRIAL OR
RECONSIDERATION
1. Grounds for New Trial
a. Errors of law or irregularities prejudicial to
the substantial rights of the accused have
been committed during the trial
General rule: Errors of the defense
counsel in the conduct of the trial is neither
an error of law nor an irregularity [Ceniza-
Manantan v. People, G.R. No. 156248
(2007)]
Exception: They become an error of law or
irregularity when acquittal would, in all
probability, have followed the introduction
of certain testimony which was not
submitted at the trial under improper or
injudicious advice of incompetent counsel
Page 425 of 525
REMEDIAL LAW
of the accused. [Aguilar v. Court of
Appeals, G.R. No. 114282 (1995)]
Irregularities must be with such
seriousness as to affect prejudicially the
substantial rights of the accused. [Sec.
2(a), Rule 121; Tabobo v. People, G.R.
No.220977 (2017)]
b. 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
See Part L.3 of this (Criminal Procedure)
reviewer
[Sec. 2, Rule 121]
2. 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 [Sec. 3,
Rule 121]
3. Requisites Before a New Trial
May be Granted on Ground of
Newly Discovered Evidence
The evidence
a. Was discovered after the trial
b. Could not have been discovered and
produced at the trial even with the exercise
of reasonable diligence
c. Is material, not merely cumulative/
corroborative/impeaching; and
d. Is of such weight that it would probably
change the judgment if admitted
[Tadeja v. People, G.R. No. 145336 (2013)]
The accused has the burden of proving item (b)
above [US v. Torrente, G.R. No. 1001 (1922)]
The determinative test is the presence of due
or reasonable diligence to locate the thing to be
used as evidence in the trial [Briones v. People,
G.R. No. 156009 (2009)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Interest of justice as gauge for introduction goes into the

of new evidence jurisdiction,
In People v. Almendras [G.R. No. 145915 the entire
(2003)], the court ruled that a motion for a new proceeding is
trial may be granted on a ground not void and
specifically provided in the rules, provided that
must be set
it is sought in the interest of justice. In that
aside.
case, the relief of a new trial was granted to a
client who has suffered by reason of his/her Evidence
counsel’s gross mistake and negligence. already
adduced
Form of motion for reconsideration & new shall stand
trial and the
The court
a. Must be in writing newly-
will allow
b. Must state the grounds on which it is based discovered
c. If based on newly-discovered evidence, introduction
Newly- and such
motion must be supported by: of other
discovered other
1. the affidavits of the witnesses by whom such
evidence evidence
such evidence is expected to be given, evidence in
shall be
or the interest
taken and
2. duly authenticated copies of of justice.
documents which are proposed to be considered
introduced in evidence together with
Notice of the motion shall be given to the the evidence
prosecutor already in the
[Sec. 4, Rule 120] record.
[Sec. 6, Rule 121]
4. Effects of Granting a New
Applying the Neypes doctrine in criminal
Trial or Reconsideration cases
The Neypes doctrine allows a fresh period of
In general 15 days within which to file the notice of appeal
a. The original judgment set aside or vacated; in the RTC, counted from receipt of the order
and denying a MNT or MR. Neypes v. CA [G.R. No.
b. A new judgment is rendered accordingly 141534 (2005)] declared that:
[Sec. 6, Rule 121]
“Henceforth, this ‘fresh period rule’ shall also
Other effects of granting new trial or apply to Rule 40 governing appeals from the
reconsideration depending on ground Municipal Trial Courts to the Regional Trial
Action of Courts; Rule 42 on petitions for review from the
Ground Effect
the court Regional Trial Courts to the Court of Appeals;
All Rule 43 on appeals from quasi-judicial
Errors of law proceedings The court agencies to the Court of Appeals and Rule 45
or and evidence will allow governing appeals by certiorari to the Supreme
irregularities affected shall introduction Court.”
committed be set aside of additional
during the and taken evidence in The “fresh period rule” enunciated in Neypes
trial anew. the interest also applies to criminal actions, particularly to
Sec. 6 of Rule 122 [Yu v. Tatad, G.R. No.
If error or of justice.
170979 (2011)
irregularity

Page 426 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

M. APPEAL

1. Effect of an Appeal
An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of
the appellate court to correct an error as may be found in the appealed judgment WON it is made the
subject of assignment of errors [People v. Calayca, G.R. No. 121212 (1999)]

2. Where to Appeal
For cases decided by Appeal to
Regional Trial Court
MTC/MeTC/MCTC
[Sec. 2(a), Rule 122]
Court of Appeals or Supreme Court (in proper
RTC cases provided by law)
[Sec. 2(a), Rule 122]
RTC or MTC/MeTC/ MCTC (if it is government
Sandiganbayan
duty-related, i.e., filed under E.O. 1, 2, 4 and 14-
[Sec. 4 (c) PD 1606 as amended by RA 8249]
A)
Supreme Court
Court of Appeals
[Sec. 2(a), Rule 122]

3. How Appeal Taken

The right to appeal is not a natural right nor a part of due process but merely a statutory privilege and
may be exercised only in the manner and in accordance with the provisions of the law [Estarija v.
People, G.R. No. 173990 (2009)]

Period to File
Decided by Appeal to Mode
Appeal
RTC (1) Filing of notice Within 15 days from
MTC/MeTC/MCTC
[Sec. 3(a), Rule 122] of appeal with the (a) promulgation of
Court of Appeals court which the judgment, or (b)
[Sec. 3(a), Rule 122] rendered the order from notice of the
RTC (original appealed from, and final order appealed
jurisdiction) (2) serving a copy from.
thereof to the
adverse party The period to appeal
RTC (appellate Court of Appeals Petition for review shall be suspended
jurisdiction) [Sec. 3(b), Rule 122] (Rule 42) from the time a MNT
RTC (where penalty Court of Appeals (1) Filing of notice or MR is filed until
imposed is [Sec. 3(c), Rule 122] of appeal with the notice of the order
(a) reclusion court which overruling the
perpetua, (b) life motion has been

Page 427 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

imprisonment, or (c) rendered the order served upon the

where a lesser appealed from, and accused or his
penalty is imposed (2) serving a copy counsel.
but for offenses thereof to the
committed on the adverse party [Sec. 6, Rule 122]
same occasion or
which arose out of
the same
occurrence that
gave rise to the more
serious offense

RTC (where penalty Court of Appeals Automatic Review Automatic Review;

imposed is death [Sec. 3(d), Rule 122] as provided in Sec. hence, no period to
penalty) 10, Rule 122 file appeal

Note: R.A. 9346 now

prohibits the
imposition of the
death penalty
Supreme Court Petition for review Within 15 days from
[Sec. 3(e), Rule 122] on Certiorari [Rule notice of
45] judgment/final
order/denial of
Court of Appeals
Note: Should only motion for new trial
(where penalty is
raise questions of or motion for
not the Death
law and should raise reconsideration.
Penalty, reclusion
the errors of the CA
perpetua, or life
(not the RTC’s) An extension of 30
imprisonment)
[Batistis v. People, days may be
G.R. No. 181571 granted, subject to
(2009)] the court’s discretion
[Sec. 2, Rule 45].
Court of Appeals Supreme Court Filing of Notice of Automatic review
(where penalty is the [Sec. 13(c), Rule 122] Appeal with the
Death Penalty, Court of Appeals
reclusion perpetua,
or life imprisonment
All other appeals to the SC Petition for review
on certiorari [Rule
45

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Who may appeal shall file seven (7) copies of his brief with the
clerk of court which shall be accompanied by
General rule: Any party may appeal from a proof of service of two (2) copies thereof
judgment or final order [Sec. 1, Rule 122] upon the appellee [Sec. 3, Rule 124]
↓
Exceptions:
Brief for the appellee
a. A party may not appeal if the accused will
Within thirty (30) days from receipt of the
be placed in double jeopardy by such
brief of the appellant, the appellee shall file
action [Sec. 1, Rule 122];
seven (7) copies of the brief of the appellee
b. If the judgment is for conviction and the
with the clerk of court which shall be
accused fails to appear during
accompanied by proof of service of two (2)
promulgation without justifiable cause, he
copies thereof upon the appellant [Sec. 4,
would lose the remedy to appeal [Sec. 6,
Rule 124]
Rule 120]
↓
a. Procedure in the lower courts Reply to appellee’s brief
(MeTC/MTC/MCTC and RTC) Within twenty (20) days from receipt of the
Brief of the appellee, the appellant may file
General rule: The procedure to be observed in a reply brief traversing matters raised in the
the MeTC/MTC/MCTC shall be the same as former but not covered in the brief of the
that in the RTC. appellant [Sec. 4, Rule 124]

Exceptions: With the use of the word “may”, filing a reply

1. Where a particular provision applies only to is optional.
either of said courts;
2. Criminal cases governed by the Revised Extension of time for filing briefs
Rules on Summary Procedure
[Sec. 1, Rule 123] General rule: Extension of time for the filing of
briefs is not allowed.
b. Procedure in the Court of
Appeals Exception: Extension may be granted for good
and sufficient cause and only if the motion for
extension is filed before the expiration of the
(1) PARTIES AND TITLE
time sought to be extended [Sec. 5, Rule 124].
In all criminal cases appealed to the CA, the
The court may grant as many extensions as
party appealing shall be called the “appellant”
and the adverse party the “appellee” but the may be asked [Gregorio v. CA, G.R. No. L-
43511 (1976)]
title of the case shall remain as it was in the
court of origin (i.e., People v. John Doe) [Sec.
(3) DISMISSAL OF APPEAL FOR
1, Rule 124]
ABANDONMENT OR FAILURE TO
PROSECUTE; GROUNDS
(2) BRIEFS
(a) Appellant fails to file his brief within the
Brief for the appellant
prescribed time
Within thirty (30) days from receipt by the
The CA may, upon motion of the appellee or
appellant or his counsel of the notice from
motu proprio and with notice to the appellant in
the clerk of court of the Court of Appeals that
either case, dismiss the appeal if the appellant
the evidence, oral and documentary, is
fails to file his brief with the time prescribed,
already attached to the record, the appellant

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U.P. LAW BOC CRIMINAL PROCEDURE
except where the appellant is represented by
a counsel de oficio [Sec. 8, Rule 124]
If failure to file brief on time is the ground,
appellant must be given notice to give him
opportunity to reason out why his appeal
should not be dismissed [Baradi v. People,
G.R. No. L-2658 (1948)]
However, dismissal is proper despite lack of
notice:
1. If appellant has filed a MFR or motion to set
aside the order dismissing the appeal, in
which he stated the reason why he failed to
file his brief on time and the appellate court
denied the motion after considering reason
[Baradi v. People, G.R. No. L-2658 (1948)]
2. If the appeal was dismissed without notice
but appellant took no steps to have the
appeal reinstated. Such action amounts to
abandonment [Salvador v. Reyes, G.R.
No. L-2606 (1949)]
(b) Appellant escapes, jumps bail, or flees
The CA may also, upon motion of the appellee
or motu proprio, dismiss the appeal if the
appellant escapes from prison/confinement,
jumps bail or flees to a foreign country during
the pendency of the appeal [Sec. 8, Rule 124]
Likewise, when accused flees after the case
has been submitted for decision, he is deemed
to have waived his right to appeal [People v.
Ang Gioc, G.R. No. L-48547 (1941)]
However, the appeal will not be dismissed
despite escape
1. In one exceptional case, the appellant took
advantage of a mass jailbreak (because,
according to his counsel de oficio he was
innocent and wanted to elude an unjust
punishment) but was recaptured two hours
after, the SC ruled that these
circumstances were not sufficient to justify
dismissal of the appeal which, upon the
conclusion arrived at by the Court on the
merits, would entail a clear miscarriage of
justice [People v. Valencia, G.R. No. L-
1369 (1949)]
Page 430 of 525
REMEDIAL LAW
2. In case of automatic review [People v.
Cornelio, G.R. No. L-1289 (1971)]
(4) PROMPT DISPOSITION OF APPEAL
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 [Sec.
9, Rule 124]
(5) REVERSAL OR MODIFICATION OF
JUDGMENT ON APPEAL
General rule: No judgment shall be reversed
or modified.
Exception: When the CA, after an examination
of the record and of the parties’ evidence, is of
the opinion that error was committed and such
error injuriously affected the appellant’s
substantial rights
[Sec. 10, Rule 124]
When it involves credibility of witnesses,
appellate courts will not generally disturb the
TC’s findings [People v. Cabiling, G.R. No. L-
38091 (1976)]
Ratio: The TC is in a better position to decide
the question, having seen and heard the
witnesses themselves [People v. Cabiling,
G.R. No. L-38091 (1976)]
(6) SCOPE OF THE CA’S JUDGMENT
The CA may:
1. Reverse/affirm/modify the judgment;
2. Increase/reduce the penalty imposed by
the TC;
3. Remand the case to the RTC for new trial
or retrial;
4. Dismiss the case [Sec. 11, Rule 124]
(7) CA’S POWER TO RECEIVE EVIDENCE
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

The CA has power to try cases and conduct 2. The motion shall conform to Sec. 4, Rule
hearings, receive evidence and perform any 121 [Sec. 14, Rule 124];
and all acts necessary to resolve factual issues 3. If the CA grants a MNT, it may either:
in cases: a. Conduct the hearing and receive
1. Falling within its original jurisdiction; evidence;
2. Involving claims for damages arising from b. Refer the trial to the court of origin
provisional remedies; [Sec. 15, Rule 124]
3. Where the court grants a new trial based
only on the ground of newly-discovered
evidence
[Sec. 12, Rule 124] Motion For New Trial
RTC [Rule 121] CA [Rule 124]
CA’s trials and hearings must be continuous Grounds
and completed within three months, unless a. Errors of law or a. Newly-
extended by the Chief Justice. [Sec. 9, BP 129 irregularities discovered
as amended by RA 7902] prejudicial to the evidence
substantial rights material to his
(8) POST-CA JUDGMENT of the accused defense
have been
Certification or appeal of cases to the SC committed
Whenever the CA finds that the penalty of during the trial;
death, reclusion perpetua, or life imprisonment b. New and
should be imposed in a case, the court, after material
discussion of the evidence and the law evidence has
involved, shall render judgment imposing the been discovered
penalty of death, reclusion perpetua, or life
When Filed
imprisonment as the circumstances warrant.
Filed after Filed after appeal
However, it shall refrain from entering the
judgment and forthwith certify the case and judgment, but from lower court is
elevate the entire record thereof to the before finality of perfected but before
Supreme Court for review [Sec. 13, Rule 124] conviction judgment
Case remanded?
Judgment transmitted and filed in the TC CA can either
When the CA’s entry of judgment is issued, a No. Cannot remand conduct the
certified true copy of the judgment shall be to lower court in its evidentiary hearing
attached to the original record. These shall be exercise of appellate by itself, or it will
remanded to the clerk of the court from which jurisdiction remand the case to
the appeal was taken [Sec. 17, Rule 124]
the court of origin
Motion for New Trial during the pendency of
Reconsideration of CA judgment
appeal
MFR may be filed within 15 days from notice of
1. Appellant may file MNT on the ground of
the CA judgment or final order, with copies
newly discovered evidence material to his
served on the adverse party, setting forth the
defense any time:
grounds in support thereof. The mittimus shall
a. After the appeal from the lower court
be stayed during the MFR’s pendency [Sec.
has been perfected; but
16, Rule 124]
b. Before the CA judgment convicting him
becomes final;

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Note: This is not available to the State in case
the CA reverses the conviction of the accused
since double jeopardy shall have attached.
[Villareal v. Aliga, G.R. No. 166995 (2014)]
General rule: No party shall be allowed a
second MFR of a judgment or final order [Sec.
16, Rule 124; Sec. 11, BP 129]
in the judgment appealed from, whether or not
they were assigned as errors [People v.
Olfindo, G.R. No. L-22679 (1924)]
It may examine the judgment as to the
qualification of the crime and the degree of the
penalty imposed [Macali v. Revilla, G.R. No. L-
25308 (1926)]

Exception: Where the first MFR resulted in a It may also assess and award civil indemnity
reversal or substantial modification of the [Quemuel v. CA, G.R. No. L-22794 (1946)]
original decision or final resolution. In this case,
the party adversely affected by the Modes by which a case may reach the SC
reversal/modification may himself file a MFR of Automa Ordinary Petition for
the latest judgment of the court, because with tic appeal Review on
respect to him, said motion is a first pleading of review Certiorari
that nature Automati It is available It is available
c review when: when
Note: Again, this is not available to the State if
is not a a. In cases a. The
the first MFR resulted in setting aside of
matter of where the constitution
judgment of conviction. [Villareal v. Aliga, G.R.
No. 166995 (2014)] right on CA ality or
the part imposes validity of
Applicable Civil Procedure Rules of the reclusion any treaty,
Provisions of Rules 42, 44-46 and 48-56 accused, perpetua, executive
relating to procedure in the CA and the SC in but a life agreement,
original and appealed civil cases, shall be matter of imprisonme law,
applied to criminal cases insofar as they are law. nt or a ordinance
applicable and not inconsistent with the lesser or executive
provision of this Rule [Sec. 18, Rule 124] It is penalty, it order or
available shall render regulation is
c. Procedure in the Supreme when the and enter in question
Court RTC judgment [Sec.
decision imposing 5(2)(a), Art.
Uniform procedure is such VIII, 1987
appeale penalty. Constitution
General rule: The procedure in the SC in
d to CA The ]
original and in appealed cases shall be the
same as in the CA. and the judgment b. When
latter is may be validity of
Exception: The Constitution or law otherwise of the appealed to law is
provides. opinion the SC by questioned
[Sec. 1, Rule 125] that the notice of by an
penalty appeal with accused
What the SC may do on review imposed the CA. convicted
In a criminal case, an appeal to the SC throws should [Sec. 13 (c), under it by
open the whole case for review and it becomes be Rule 124] the TC, the
its duty to correct such errors as may be found death. SC cannot

Page 432 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

CA b. The penalty review the review commissio 2487

judgmen of reclusion evidence or [Sec. n of the (1904)]
t is perpetua or pass upon 13(a), offense or c. When the
imposed death is any other Rule due to the jurisdiction
but no imposed on question of 124] presence of of any
entry of some of the law which modifying inferior
judgmen defendants may appear circumstan court is in
t is and a on the ces, in issue
made; lesser record, but which case d. When only
instead, penalty on will only the decision an error or
the case the other confine on the non- question of
is co- itself to the life convicts law is
certified defendants, question of is directly involved
and the on account the appealable [Sec. 6(a),
entire of their in/validity of to the SC Rule 45]
record is varying that law [People v.
elevated degree of [Trinidad v. Carino
to the SC participatio Sweeney, (2002)]
for n in the G.R. No.

Effect of erroneous mode of appeal 4. Effect of Appeal by Any of

In the case of People v. Resuello [GR No. L-
30165 (1969)], the contention of the adverse
party that the ordinary appeal filed by appellant
be dismissed because the proper remedy is
petition for review on certiorari (only questions
of law were involved) was rejected. The SC
said that in cases similarly situated, and as long
as the steps formally required for the perfection
of an appeal were taken in due time, appeal
may be given due course, without prejudice to
requiring the appellant to file the necessary
petition for review on certiorari which is also a
form of appeal.
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 [Sec. 3, Rule 125]
Several Accused
General rule:
a. An appeal taken by one or more of several
accused shall not affect those who did not
appeal.
b. The appeal of the offended part 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
[Sec. 11, Rule 122]
Effect of appeal by any of several accused
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. [People v. Valdez, G.R. No. 175602
(2013)]

Page 433 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
5. Grounds for Dismissal of
Appeal
When appeal by the people will not lie
The People/State cannot appeal when it will
put the accused in double jeopardy. The
constitutional mandate against double
jeopardy prohibits not only a subsequent
prosecution in a new and independent cause
but extends also to appeal in the same case by
the prosecution after jeopardy had attached
[Republic v. CA, G.R. No. L- 41115 (1982)]
Rationale
A verdict of that nature is immediately final and
to try on the merits, even in an appellate court,
places the accused in double jeopardy [Central
Bank v. CA, G.R. No. 41859 (1989)]
Dismissal of case upon filing of demurrer by
the accused was held to be final even though
based on erroneous interpretation of the law.
Hence, an appeal therefrom by the prosecution
would constitute double jeopardy [People v.
Sandiganbayan, G.R. No. 174504 (2011),
citing People v. Nieto, 103 Phil. 1133]
Where the TC has jurisdiction but mistakenly
dismisses the complaint/information on the
ground of lack of it, the order of dismissal is
unappealable [People v. Duran, G.R. No. L-
13334 (1960)]
N. SEARCH AND
SEIZURE
1. Nature of Search Warrant
Nature
It is an order in writing; issued in the name of
the People of the Philippines; signed by a
judge; and directed to a peace officer,
commanding him to search for personal
property described in the warrant and bring it
before the court [Sec. 1, Rule 126]
Page 434 of 525
REMEDIAL LAW
A search warrant is not a criminal action nor
does it represent a commencement of a
criminal prosecution even if it is entitled like a
criminal action. It is not a proceeding against a
person but is solely for the discovery and to get
possession of personal property. [Worldwide
Web Corporation v. People, G.R. No. 161106
(2014)]
Constitutional safeguard
No search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after the
examination under oath/affirmation of the
complaint and the witness he may produce,
and particularly describing the place to be
searched, and the things/persons to be seized
[Sec. 2, Art. III, Constitution]
Under the exclusionary rule, any evidence
obtained in violation of this is inadmissible for
any purpose in any proceeding [Sec. 3, 2nd
par., Art. III, Constitution]
As a rule, the Constitution mandates that a
search and seizure must be carried out through
or on the strength of a judicial warrant
predicated upon the existence of probable
cause. [Comerciante v. people, G.R. No.
205926 (2015)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Directed upon acts of the government, not Exceptions:

private persons a. Search incidental to a lawful arrest;
The constitutional protection is directed against b. Consented search;
the acts of the government and its agents, not c. Search of moving vehicle;
private persons [People v. Marti, G.R. No. d. Checkpoints;
81561 (1991)] e. Plain view;
f. Stop and frisk;
General rule: Search of property is g. Customs search;
unreasonable unless it has been authorized by h. Other exceptions, such as exigent
a valid search warrant. circumstance

2. Distinguish From Warrant of Arrest

Search warrant
Order in writing issued in the name of
the People of the Philippines, signed
Nature and by the judge and directed to the peace
purpose officer to search personal property
described therein and to bring it to
court [Sec. 1, Rule 126]
The judge must personally examine in
the form of searching questions and
answers, under oath, the complainant
Determination
and witnesses he may produce on
of Probable
facts personally known to them and
cause
attach to the record their sworn
statements, together with the affidavits
submitted [Sec. 5, Rule 126]
It must particularly describe the place
to be searched and the things to be
Form seized [Sec. 2, Art. III, Constitution],
which may be anywhere in the
Philippines [Sec. 4, Rule 126]
The warrant must direct that it be
served in the day time, unless the
When affidavit asserts that the property is on
executed the person or in the place ordered to be
searched, in which case a direction
may be inserted that it be served at any
Warrant of arrest
Order directed to the peace officer to
execute the warrant by taking the
person stated therein into custody that
he may be bound to answer for the
commission of the offense
Sec. 2, Art. III of the Constitution does
not mandatorily require the judge to
personally examine the complainant
and her witnesses. Instead, he may opt
to personally evaluate the report and
supporting documents submitted by
the prosecutor or he may disregard the
prosecutor’s report and require the
submission of supporting affidavits of
witnesses [People v. Grey,, G.R. No.
180109 (2010), citing Soliven v.
Makasiar, G.R. No. L-82585 (1988)]
It must particularly describe the person
to be arrested [Sec. 2, Art. III,
Constitution]
No such limitation under Sec. 2, Art. III,
Constitution and Rule 113

Page 435 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
time of the day or night [Sec. 9, Rule
126]
Valid for 10 days from its date [Sec. 10,
Rule 126]
Validity The lifetime of the search warrant also
ends when a return has already been
made [Mustang Lumber v. CA, G.R.
No. 104988 (1996)]
3. Application for Search
Warrant; Where Filed
General rule: It may be filed in any court within
whose territorial jurisdiction the crime was
committed.
Exception: For compelling reasons, which
must be stated in the application, it may also be
filed:
a. If the place of the commission of the crime
is known, any court within the judicial
region where the crime was committed
b. Any court within the judicial region where
the warrant shall be enforced
However, if the criminal action has already
been filed, the application shall only be made
in the court where the criminal action is pending
[Sec. 2, Rule 126]
Under A.M. No. 03-8-02-SC, Executive Judges
and, whenever they are on official leave of
absence or are not physically present in the
station, the Vice-Executive Judges of Manila
and Quezon City RTCs shall have authority to
act on applications for search warrants
involving
a. Heinous crimes
b. Illegal gambling
c. Illegal possession of firearms and
ammunitions
d. Violations of the Comprehensive
Dangerous Drugs Act of 2000
e. Violations of the Intellectual Property Code
Page 436 of 525
REMEDIAL LAW
Does not expire
The 10-day period referred to in Sec. 4,
Rule 113 refers to the time within which
the head of the office to whom the
warrant of arrest was delivered for
execution shall cause the warrant to be
executed.
f. Violations of the Anti-Money Laundering
Act of 2001
g. Violations of the Tariff and Customs Code,
and
h. Other relevant laws that may hereafter be
enacted by Congress and included herein
by the Supreme Court.
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 the Rules
[Sec. 6, Rule 126]
Thus, the search warrant must be in writing and
contain
a. Name of person against whom it is directed
b. Offense for which it was issued
c. The place to be searched, and
d. The description of the specific things to be
seized
e. A directive to law enforcement officers to
search and seize and for them to bring in
court the things seized
f. Signature of the judge issuing it
The absence of such requisites will cause the
search warrant’s downright nullification [Santos
v. Pryce Gases, Inc., G.R. No. 165122 (2007)]
U.P. LAW BOC CRIMINAL PROCEDURE
4. Probable Cause for Issuance
of Search Warrant
Probable cause means 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 objects sought in connection with
the offense are in the place sought to be
searched [People v. Breis., G.R. No. 205823
(2015)]
This probable cause must be shown to be
within the personal knowledge of the
complainant or the witnesses he may produce
and not based on mere hearsay. The probable
cause must refer only to one specific offense
[Roan v. Gonzales, G.R. No. 71410 (1986)]
Note: Probable cause to arrest does not
necessarily involve a probable cause to search
and vice-versa.
5. Personal Examination by
Judge of the Applicant and
Witnesses
The Rules require the judge to comply with a
specific procedure in the conduct of the
examination of the complainant and the
witnesses he may produce
a. The examination must be personally
conducted by the judge;
b. The examination must be in the form of
searching questions and answers;
c. The complainant and the witnesses shall
be examined on those facts personally
known to them;
d. The statements must be in writing and
under oath; and
e. The sworn statements of the complainant
and the witnesses, together with the
affidavits submitted, shall be attached to
the record.
[Sec. 5, Rule 126]
Page 437 of 525
REMEDIAL LAW
Searching questions and answers
Searching questions are such questions which
have the tendency to show the commission of
a crime and the perpetrator thereof [Luna v.
Plaza, G.R. No. 27511 (1968)]
In search cases, the application must be
supported by substantial evidence
a. That the items sought are in fact seizable
by virtue of being connected with criminal
activity; and
b. That the items will be found in the place to
be searched
[People v. Tuan, G.R. No. 176066 (2010)]
A search warrant issued by a judge who did not
ask searching questions but only leading ones
and in a general manner is invalid [Uy v. BIR,
G.R. No. 129651 (2000)]
Although there is no hard-and-fast rule
governing how a judge should conduct his
investigation, it is axiomatic that the
examination must be probing and exhaustive,
not merely routinary, general, peripheral,
perfunctory or pro forma. The judge must not
simply rehash the contents of the affidavit but
must make his own inquiry on the intent and
justification of the application [Yao v. People,
G.R. No. 168306 (2007)]
Examination under oath
The judge must examine under oath or
affirmation the complainant and the witness he
may produce [Sec. 2, Art. III, Constitution]
Oath includes any form of attestation by which
a party signifies that he is bound in conscience
to perform an act faithfully and truthfully.
[Alvarez v. CFI, G.R. No. 45358 (1937)]
Mere affidavits of the complainant or his
witnesses are not sufficient. The examining
judge has to take depositions in writing of the
complaint or his witnesses, and attach the
same to the record [Prudente v. Judge Dayrit,
G.R. No. 82870 (1989)]
U.P. LAW BOC CRIMINAL PROCEDURE
6. Particularity of Place to Be
Searched and Things to Be
Seized
Warrant issued must particularly describe the
place to be searched and the things to be
seized [Sec. 2, Art. III, Constitution]
Particularity of place to be searched
Description of the place to be searched is
sufficient if the officer with the search warrant
can, with reasonable efforts, ascertain and
identify the place intended [People v. Veloso,
G.R. No. L-23051 (1925)]
The search warrant does not require the name
of the person who occupies the described
premises. The search warrant is issued for the
search of specifically described premises only
and not for the search of a person [Quelnan v.
People, G.R. No. 166061 (2007)]
7. Personal Property to be
Seized
What may be seized
a. Personal property subject of the offense;
b. Personal property stolen/embezzled and
other proceeds/fruits of the offense;
c. Personal property used or intended to be
used as the means of committing an
offense
[Sec. 3, Rule 126]
The scope of the search warrant is limited to
personal property. It does not issue for seizure
of immovable properties [see Sec. 3, Rule 126]
General rule: Things to be seized must be
described particularly. General search
warrants are not allowed. [Sec. 2, Art. III,
Constitution]
A general warrant is defined as "a search or
arrest warrant that is not particular as to the
person to be arrested or the property to be
seized." It is one that allows the "seizure of one
Page 438 of 525
REMEDIAL LAW
thing under a warrant describing another" and
gives the officer executing the warrant the
discretion over which items to take [Worldwide
Web Corporation v. People, G.R. No. 161106
(2014)]
Where the language used is too all-embracing
as to include all the paraphernalia of petitioner
in the operation of its business, the SW is
constitutionally objectionable [Columbia
Pictures v. Flores, G.R. No. 78631 (1993)]
Exceptions:
Where, by the nature of the goods to be seized,
their description must be rather general, it is not
required that a technical description be given,
for this would mean that no search warrant
could issue [People v. Rubio, G.R. No. L-35500
(1932)]
The general description of the documents
listed in the search warrant does not render it
void if it is severable, and those items not
particularly described may be cut off without
destroying the whole [Uy v. BIR, G.R. No.
129651 (2000)]
The rule does not require that the property to
be seized should be owned by the person
against whom the search warrant is directed. It
is sufficient that the person against whom the
warrant is directed has control of possession of
the property sought to be seized [Burgos v.
Chief of Staff, G.R. No. L-64261 (1984)
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

8. Exceptions to the Search Warrant Requirement

a. Search Incidental to Lawful Arrest
b. Consented Search
c. Search of a Moving Vehicle
d. Checkpoints; Body Checks in Airport
e. Plain View
f. Stop and Frisk
g. Enforcement of Customs Law
h. Other Exceptions
1. Exigent and Emergency Circumstances
2. Buy-Bust Operation
3. Private Searches

Items (1) to (3), (5) to (7) and (8)(a) are enumerated in Veridiano v. People [G.R. No. 200370 (2017)]
The other items are sanctioned by the SC in other cases. See the discussion below.

Requisites
Search Even without a warrant, the person arrested
Incidental to may be searched for:
Lawful Arrest 1. Dangerous weapons
2. Anything which may have been used in
the commission of an offense, or
3. Anything which may constitute proof in the
commission of the offense [Sec. 13, Rule
126]
The arrest must precede the search;
generally, the process cannot be reversed.
Nevertheless, a search substantially
contemporaneous with an arrest can precede
the arrest if the police have probable cause to
make the arrest at the outset of the search [Sy
v. People, G.R. No. 182178 (2011) citing
People v. Racho (erroneously referred to as
Rancho), G.R. No. 186529 (2010)]
Notes
When an arrest is made, it is
reasonable for the arresting officer to
search the person arrested in order to
remove any weapon that the latter
might use in order to resist arrest or
effect his escape. Otherwise, the
officer’s safety might well be
endangered, and the arrest itself
frustrated.
In addition, it is entirely reasonable for
the arresting officer to search for and
seize any evidence on the arrestee’s
person in order to prevent its
concealment or destruction [People v.
Calantiao, G.R. No. 203984 (2014),
citing Valeroso v. CA, G.R. No.
164815 (2009)]

The rule assumes that the arrest is legal. If the

arrest is illegal, then the search is illegal and
as a result, the things seized are inadmissible
as evidence [People v. Aruta, G.R. No.
120195 (1998)]

Where a search is first undertaken, and an

arrest was effected based on evidence
produced by such search, both search and
arrest are illegal [Lui v. Matillano, G.R. No.
141176 (2004)]

Page 439 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
Jurisprudence requires that in case of
consented searches or waiver of the
constitutional guarantee against obtrusive
searches, it must first appear that:
1. The right exists;
2. The person involved had knowledge,
either actual or constructive, of the
existence of such right; and
3. The said person had an actual intention to
relinquish the right.
[People v. Nuevas, G.R. No. 170233 (2007)]
Consent to a search is not to be lightly
inferred, but must be shown by clear and
convincing evidence. 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 [Valdez v. People, G.R. No. 170180
(2007)]
Search of a When a vehicle is stopped and subjected to an
Moving extensive search, such a warrantless search
Vehicle should be constitutionally permissible only if
Consented the officers conducting the search have
Search reasonable or probable cause to believe,
before the search, that either:
1. the motorist is a law-offender; or
2. they will find the instrumentality or
evidence pertaining to a crime in the
vehicle to be searched
[Caballes v. CA, G.R. No. 136292 (2002)]
Page 440 of 525
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Relevant to the determination of
consent are the following
characteristics of the person giving
consent and the environment in which
consent is given:
1. The age of the defendant;
2. Whether he was in a public or
secluded location;
3. Whether he objected to the
search or passively looked on;
4. The education and intelligence of
the defendant;
5. The presence of coercive police
procedures;
6. The defendant's belief that no
incriminating evidence will be
found;
7. The nature of the police
questioning;
8. The environment in which the
questioning took place; and
9. The possibly vulnerable
subjective state of the person
consenting.
[Caballes v. CA, G.R. No. 136292
(2002)]
Peace officers may lawfully conduct
searches of moving vehicles without
need of a warrant as it is impracticable
to secure a judicial warrant before
searching a vehicle since it can be
quickly moved out of the locality or
jurisdiction in which the warrant may
be sought [People v. Tuazon, G.R.
No. 175783 (2007)]
However, these searches would be
limited to visual inspection and the
vehicles or their occupants cannot be
subjected to physical or body
searches, except where there is
probable cause to believe that the
occupant is a law offender or the
contents of the vehicles are
instruments or proceeds of some
criminal offense.
to privacy
U.P. LAW BOC CRIMINAL PROCEDURE
Checkpoints; Searches conducted in checkpoints are valid
Body Checks as long as they are warranted by the
in Airport exigencies of public order and conducted in a
way least intrusive to motorists.
Although the general rule is that motorists and
their vehicles as well as pedestrians passing
through checkpoints may only be subjected to
a routine inspection, vehicles may be stopped
and extensively searched when there is
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 [People v. Vinecario, G.R. No.
141137 (2004)]
Plain View 1. Police must have prior justification to a
Situation prior valid intrusion i.e., based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties
2. Evidence was inadvertently discovered by
the police who have a right to be where
they are
3. Evidence must be immediately and
apparently illegal (i.e., drug
paraphernalia)
4. Plain view justified mere seizure of
evidence without further search
[People v. Martinez, G.R. No. 191366 (2010)]
Stop and Stop and frisk is a limited protective search of
Frisk outer clothing for weapons [Malacat v. CA,
Situation G.R. No. 123595 (1997)]
Where a police officer observes unusual
conduct, which leads him reasonably to
Page 441 of 525
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Routine inspections are not regarded
as violative of an individual’s right
against unreasonable search
1. Where the officer merely draws
aside the curtain of a vacant
vehicle which is parked on the
public fair grounds
2. Officer simply looks into a vehicle
3. Officer flashes a light therein
without opening car’s doors
4. Occupants not subjected to a
physical search
5. Inspection is limited to visual
search or visual inspection, or
6. Routine check is conducted in a
fixed area
[Caballes v. CA, G.R. No. 136292
(2002)]
Limitations
1. It may not be used to launch
unbridled searches and
indiscriminate seizures
2. It does not extend to a general
exploratory search made solely to
find evidence of defendant’s guilt
[People v. Musa, G.R. No. 96177
(1993)]
Rationale
The doctrine is a recognition of the
fact that when the police come across
immediately recognizable
incriminating evidence not named in
the warrant, they should not be
required to close their eyes to it,
regardless of whether it is evidence of
the crime they are investigating or
evidence of some other crime. The
doctrine is also a recognition of the
fact that it would be needless
inconvenience to require the police to
obtain another warrant [US v. Gray,
484 F.2d 352 (6th Cir., 1978)]
Dual purpose of stop-and-frisk
1. The general interest of effective
crime prevention and detection
and
2. The more pressing interest of
safety and self-preservation
U.P. LAW BOC CRIMINAL PROCEDURE
conclude in the light of his experience that
criminal activity may be afoot, and that a
person with whom he is dealing may be armed
and presently dangerous, he is entitled to
conduct a stop and frisk search.
Enforcement For the enforcement of customs duties and
of Customs tariff laws, the Collector of Customs is
Law authorized to effect searches and seizure
[General Travel Services v. David, G.R. No. L-
19259 (1966)]
The Customs Modernization and Tariff Act
(CMTA) authorizes customs officers to:
1. Enter, pass through or search any land,
enclosure, warehouse [Sec. 219, CMTA]
2. Inspect/search/examine any vessel or
aircraft and any
trunk/package/box/envelope or any
person on board, or stop and examine any
vehicle/beast/person suspected of
holding/conveying any dutiable/prohibited
article introduced into the Philippines
contrary to law [Sec. 221, CMTA]
Page 442 of 525
REMEDIAL LAW
which permit the police officer to
take steps to assure himself that
the person with whom he deals is
not armed with a deadly weapon
that could unexpectedly and
fatally be used against the police
officer.
[Malacat v. CA, G.R. No. 123595
(1997)]
Stop and Frisk v. Search Incidental
to Lawful Arrest
The latter happens when one is
caught in flagrante delicto, the former
is done in order to prevent a crime
from occurring [People v. Cogaed,
G.R. No. 200334 (2015)]
General rule: The CMTA does not
require a warrant for such searches
Exception: In the search of a dwelling
house, a search warrant is required
[Sec. 220, CMTA]
Note: RTCs are devoid of any
competence to pass upon the validity
or regularity of seizure and forfeiture
proceedings conducted by the Bureau
of Customs and to enjoin or otherwise
interfere with these proceedings. It is
the Collector of Customs, sitting in
seizure and forfeiture proceedings,
who has exclusive jurisdiction to hear
and determine all questions touching
on the seizure and forfeiture of
dutiable goods [Asian Terminals, Inc.
v. Bautista-Ricafort, G.R. No. 166901
(2006)]
U.P. LAW BOC CRIMINAL PROCEDURE
Other exceptions
Exigent and emergency circumstances
In one case, there was a prevailing general
chaos and disorder because of an ongoing
coup, and the raid of the office/building was
precipitated by an intelligence report that said
office was being used as HQ by the RAM. The
raiding team had no opportunity to apply for
warrant as the court then was closed [People
v. de Gracia, G.R. Nos. 102009-10 (1994)]
9. Remedies From Unlawful
Search And Seizure
Who may avail
Only the party whose rights have been
impaired thereby; the objection to an unlawful
search and seizure is purely personal and
cannot be availed of by third parties [Stonehill
v. Diokno, G.R. No. L-19550 (1967); Santos v.
Pryce Gases Inc., G.R. No. 165122 (2007)]
a. Employ any means to prevent
the search
Without a search warrant, the officer cannot
insist on entering a citizen’s premises. If he
does so, he becomes an ordinary intruder.
The person to be searched may resist the
search and employ any means necessary to
prevent it, without incurring any criminal liability
[People v. Chan Fook, G.R. No. L-16968
(1921)]
b. File criminal action against
officer
A public officer/employee who procures a
search warrant without just cause is criminally
liable under Art. 129, RPC, on search warrants
maliciously obtained and abuse in the service
of those legally obtained.
Page 443 of 525
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c. File a motion to quash the
illegal warrant
This remedy is employed if search is not yet
conducted.
Who may file
1. Person who will potentially be injured;
2. Person to be searched;
3. Owner of the property to be searched.
Where to file
1. Motions 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.
2. If no criminal action has been instituted,
motion may be filed in and resolved by the
court that issued the warrant.
3. 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.
[Sec. 14, Rule 126]
Grounds
A motion to quash a search warrant may be
based on grounds extrinsic of the search
warrant, such as (1) the place searched or the
property seized are not those specified or
described in the search warrant; and (2) there
is no probable cause for the issuance of the
search warrant [Abuan v. People, G.R. No.
168773 (2006)]
Failure to file motion to quash
Where no MTQ the search warrant was filed in
or resolved by the issuing court, the interested
party may move in the court where the criminal
case is pending for the suppression as
evidence of the personal property seized under
the warrant if the same is offered therein for
said purpose. [Malaloan v. CA, G.R. No.
104879 (1994)]
U.P. LAW BOC CRIMINAL PROCEDURE
d. File a motion to return things
seized
The venue where the motion will be filed
follows the same rules as in a motion to quash.
An accused may file a motion to suppress
evidence if he is not among the persons who
can file a motion to quash.
General rule: Goods seized by virtue of an
illegal warrant must be returned.
Exception: The illegality of the search warrant
does not call for the return of the things seized,
the possession of which is prohibited by law
[Castro v. Pabalan, G.R. No. L-28642 (1976)]
e. Motion to suppress evidence
This refers to a motion to suppress as evidence
the objects illegally taken pursuant to the
exclusionary rule, which states that any
evidence obtained through unreasonable
searches and seizures shall be inadmissible for
any purpose in any proceeding
CIVIL AND CRIMINAL LIABILITY FROM
UNREASONABLE SEARCH AND SEIZURE
The following offenses may result from
unreasonable search and seizure
a. Violation of domicile [Art. 128, RPC]
b. Search warrant maliciously obtained [Art.
129, RPC]
c. Searching domicile without witnesses [Art.
130, RPC]
d. Unjust interlocutory order [Art. 206, RPC]
The public officer or employee may be held
liable for:
a. Entering without authority; against the will;
refuses to leave
b. A search warrant procured without just
cause or if with just cause, exceeds his
authority or uses unnecessary severity of
force
c. Conducting the search without the required
witnesses.
Page 444 of 525
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The judge may be held liable for
a. Knowingly rendering an unjust interlocutory
order [Art. 206, RPC]
b. Inexcusable negligence or ignorance [Art.
205, RPC]
It may also result in civil liability for
a. Violation of rights and liberties [Art. 32(9),
CC]
b. Malicious prosecution and acts referred to
Art. 32 [Art. 2218, CC]
Malice or bad faith is not required.
Not only official actions, but all persons who are
responsible for the violation are liable for
damages [MHP Garments v. CA, G.R. No.
86720 (1994)]
Waiver of immunity against unreasonable
search and seizure
The constitutional immunity against
unreasonable searches and seizure is a
personal right that may be waived
expressly/impliedly only by the person whose
right is being invaded or one who is expressly
authorized to do so in his behalf [Pasion v.
Locsin, G.R. No. L-45950 (1938)]
Requisites
a. It must appear that the right exists
b. The person involved had knowledge
(actual or constructive) of the existence of
such right
c. The person had an actual intention to
relinquish the right
[Pasion v. Locsin, G.R. No. L-45950 (1938)]
10. Cybercrime Warrants
a. Scope and Applicability
The rule provides for the procedure in the
application and grants of warrants and related
orders involving preservation, disclosure,
interception, search, seizure, and/or
examination of computer data.
U.P. LAW BOC CRIMINAL PROCEDURE
b. General Provisions
VENUE FOR FILING A CRIMINAL ACTION
i. Violation of Section 4 (Cybercrime
offenses) and/or Section 5 (Other
offenses) of RA 10175 (Cybercrime
Prevention Act of 2012 hereinafter
“RA 10175”)
General Rule: The criminal action shall be filed
before the designated cybercrime court of the
province or city:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system
used is situated, or
3. Where any of the damage caused to a
natural or juridical person took place
Note: The court where the criminal action was
first filed shall acquire jurisdiction to the
exclusion of other courts.
ii. All other crimes committed using
Information and Communication
Technology (ICT)
General Rule: The criminal action shall be
filed before the regular or specialized courts
as the case maybe.
VENUE FOR FILING AN APPLICATION FOR
CYBERCRIME WARRANT
iii. Violation of Section 4 and Section
5 of RA 10175
General Rule: Application shall be filed before
the designated cybercrime courts of the
province or the city where:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system
used is situated, or
3. Where any of the damage caused to a
natural or juridical person took place
Note: Cybercrime courts in Quezon City, City
of Manila, Makati City, Pasig City, Cebu City,
Iloilo City, Davao City, and Cagayan De Oro
Page 445 of 525
REMEDIAL LAW
City have the special authority to act on
applications and issue warrants which shall be
enforceable nationwide and outside the
Philippines.
iv. Application for a warrant for
violation of all crimes defined, and
penalized by RPC and other
special laws if committed using
Information Communication
Technology (ICT) shall be filed
with the regular courts or other
specialized RTC in the places:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system
used is situated, or
3. Where any of the damage caused to a
natural or juridical person took place
Effectivity of Warrants
General Rule: Not exceeding 10 days from its
issuance
Exception: The issuing court may, upon
motion, extend its effectivity based only on
justifiable reasons for a period not exceeding
10 from the expiration of the original period.
Contempt
The responsible law enforcement authorities
shall be subject to action for contempt in case:
1. Failure to timely file the return for any of the
issued warrants under this Rule
2. Failure to duly turn-over to the court’s
custody any of the items disclosed
intercepted, searched, seized, and/or
examined
c. Preservation of Computer Data
General Rule: Data should be kept, retained,
and preserved by a service provider for a
minimum period of 6 months from:
1. The date of transaction in the case of traffic
data and subscriber’s information;
2. The date of receipt of order from law
enforcement requiring its preservation in
the case of content data
U.P. LAW BOC CRIMINAL PROCEDURE
Exception:
1. A one-time extension for another 6
months may be ordered
The data is preserved until the final
termination of a case once the data that is
preserved, transmitted or stored by the
service provider is used as evidence in a
case.
The receipt by the service provider of
transmittal of document to the Office of the
Prosecutor shall be deemed a notification
to preserve data until the final termination
of the case.
CYBERCRIME WARRANTS UNDER THIS
RULE
1. Warrant to Disclose Computer Data
(WDCD) [Sec. 4]
2. Warrant to Intercept Data (WICD) [Sec. 5]
3. Warrant to Search, Seize and Examine
Computer Data (WSSECD) [Sec. 6]
4. Warrant to Examine Computer Data
(WECD) [Sec 6.9]
d. Disclosure of Computer Data
Warrant to Disclose Computer Data (WDCD)
It is an order in writing issued in the name of
the People of the Philippines, signed by the
judge, upon application of law enforcement
authorities, authorizing the latter to issue an
order to disclose and accordingly, require any
person or service provider to disclose or submit
subscriber’s information, traffic data, or
relevant data in his/her or its possession or
control.
Disclosure of Computer Data
1. The person or service provider must
disclose or submit the subscriber’s
information, traffic data or relevant data in
his/her or its possession or control within
72 hours from receipt of an Order;
2. The Order must be in relation to a
complaint officially docketed and assigned
for investigation; and
3. The disclosure must be necessary and
relevant for the purpose of investigation.
Page 446 of 525
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Contents of Application for WDCD
1. The probable offense involved
2. Relevance and necessity of the computer
data or subscriber’s information sought to
be disclosed for the purpose of
investigation
3. Names of the individuals or entities whose
computer data or subscriber’s information
are sought to be disclosed, including the
names of the individuals of the individuals
or entities who have control, possession, or
access thereto, if available;
4. Particular description of the computer data
or subscriber’s information sought to be
disclosed
5. Place where the disclosure of computer
data or subscriber’s information is to be
enforced, if available;
6. Manner or method by which the disclosure
of the computer data or subscriber’s
information is to be carried out, if available;
and
7. Other relevant information that will
persuade the court that there is a probable
cause to issue a WDCD.
Return on the WDCD
Duty of Law Enforcement Officer:
Within 48 hours from implementation or after
the expiration of the effectivity of the WDCD,
whichever comes first, the law enforcement
officer shall:
1. Submit a return on the WDCD to the court
that issued it; and
2. Simultaneously turn over the custody of the
disclosed computer data or subscriber’s
information thereto
The officer is allowed to retain a copy of the
copy of the disclosed data or subscriber’s
information subject of the WDCD without the
need of court intervention, provided:
1. It will be utilized for case build-up or
preliminary investigation purposes
2. The details are kept strictly confidential,
and the retained copy shall be labelled as
such
3. The retained copy shall be turned over
upon filing of a criminal action involving the
disclosed computer data or subscriber’s
U.P. LAW BOC CRIMINAL PROCEDURE
information, or upon order of the issuing
court if no criminal action is filed.
Duty of the Issuing Judge:
It is the duty of the issuing judge to:
1. Ascertain if the return has been made, and
2. If no return was made, summon the officer
to whom the WDCD was issued, and
require him/her to explain why no return
was made, without prejudice to any action
of contempt
e. Interception of Computer Data
Interception refers to [LRMS-DI]:
1. Listening to,
2. Recording,
3. Monitoring, or
4. Surveillance of the content of
communications, including procuring of the
content data:
a. Directly, through access and use of a
computer system, or
b. Indirectly through the use of
electronic eavesdropping or tapping
devices, at the same time that the
communication if occurring.
Warrant Required
Interception may be carried out only by virtue
of a court issued warrant, duly applied for by
law enforcement authorities.
Warrant to Intercept Computer Data (WICD)
It is an order in writing issued in the name of
the People of the Philippines, signed by a
judge, upon application of law enforcement
authorities, authorizing the latter to carry out
any or all of the activities of interception (see
above).
Contents of Application for WICD
The application shall state the essential facts
similar to WDCD, except that the subject
matter is the communication or computer data
sought to be intercepted. It should state [O-RN-
NDPM]:
1. The probable Offense involved
2. Relevance and Necessity of the computer
data or subscriber’s information sought to
Page 447 of 525
REMEDIAL LAW
be intercepted for the purpose of
investigation
3. Names of the individuals or entities whose
computer data or subscriber’s information
are intercepted, including the names of
the individuals of the individuals or entities
who have control, possession, or access
thereto, if available;
4. Particular Description of the computer data
or subscriber’s information sought to be
intercepted;
5. Place where the disclosure of computer
data or subscriber’s information is to be
enforced, if available;
6. Manner or method by which the disclosure
of the computer data or subscriber’s
information is to be carried out, if available;
and
Return on the WICD
Duty of Law Enforcement Officer:
Within 48 hours from implementation or after
the expiration of the effectivity of the WICD,
whichever comes first, the law enforcement
officer shall:
1. Submit a return on the WDCD to the court
that issued it; and
2. Simultaneously turn over the custody of the
disclosed computer data or subscriber’s
information thereto
Duty of the Issuing Judge:
It is the duty of the issuing judge to:
1. Ascertain if the return has been made, and
2. If no return was made, summon the officer
to whom the WDCD was issued, and
require him/her to explain why no return
was made, without prejudice to any action
of contempt
Notice to Person Intercepted after Filing of
Return Required
Duty of Law Enforcement
The law enforcement officer has the duty to
notify the person whose communication or
computer data have been intercepted of the
activities conducted pursuant to the WICD:
U.P. LAW BOC CRIMINAL PROCEDURE
1. Within 30 days from the filing of the return,
attaching a copy of the return to the notice;
or
2. From the lapse of 48-hour period to file
the return, if no return was filed. The notice
shall state the details of the interception
activities, including the contents of the
intercepted communication or computer
data.
Remedy of the Person Involved
Within 10 days from notice, the person whose
communication or computer data have been
intercepted may challenge, by motion, the
legality of the interception before the issuing
court.
f. Search, Seizure, and
Examination of Computer Data
Warrant to Search, Seize and Examine
Computer Data (WSSECD)
It is an order in writing issued in the name of
the People of the Philippines, signed by a
judge, upon application of law enforcement
authorities, authorizing the latter to search the
particular place for items to be seized and/or
examined.
Content of Application for a WSSECD
The content shall state the essential fact similar
to WDCD except that the subject matter is the
computer data sought to be searched, seized
and examined, and all other items related
thereto.
Further, it shall contain an explanation of the
search and seizure strategy to be
implemented taking into account the nature of
the computer data involved, the computer or
computer system’s security features, and/or
other relevant circumstances.
Off-site and On-site Principle
General rule: Law enforcement shall endeavor
to first make a forensic image of the computer
data on-site as well as limit their search to the
place specified in the warrant.
Exception: Off-site search may be conducted
provided that a forensic image is made, and
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that the reasons for the off-site search are
stated in the initial return
Remedy of Person whose devices have
been searched and seized off-site
The concerned individual may, upon motion,
seek the return of the said items from the court
issuing the WSSCED provided that a forensic
image of the data subject of the WSSECD has
already been made.
What Activities are Allowed During the
Implementation of the WSSECD
1. Interception of communications and
computer data may be conducted during
the implementation of the WSSECD which
shall:
a. limited to communications and
computer that are reasonably related to
the subject matter of WSSECD; and
b. the activities are fully disclosed which
shall be duly explained in the initial
return.
2. Law enforcement may order any person
who has knowledge of the functioning of
the computer data therein, to provide
necessary information to enable the
undertaking of the search, seizure and
examination
Initial Return of WSSECD
The authorized law enforcement shall submit
within 10 days from issuance of WSSECD an
initial return which contains:
1. A list of all items that were seized, with a
detailed identification of the devices of the
computer system seized;
2. Statement on whether a forensic image of
the computer data was made on-site, and
if not, the reason for making forensic image
off-site;
3. Statement on whether the search was
conducted on-site, and not, the reasons for
conducting the search and seizure off-site;
4. Statement on whether interception was
conducted during the implementation of the
WSSECD, together with (a) a detailed
identification of all the interception activities
that were conducted; (b) the hash value/s
of the communications or computer data
intercepted; and (c) an explanation of the
U.P. LAW BOC CRIMINAL PROCEDURE
said item’ reasonable relation to the
computer data subject of WSSECD;
5. List of all the actions taken to enforce the
WSSECD, from the time the law
enforcement officers reached the place to
be seized until they left the premises with
the seized items and reached the place
where the items seized were stored and
secured for examination; and
6. A reasonable estimation of how long the
examination of the items seized will be
concluded and the justification therefor.
Period to Examine Seized Items After Initial
Return
The Court shall issue an order fixing the period
to conclude the examination of all the items
seized. The period may be extended not
exceeding 30 days, upon motion, for
justifiable reasons.
Final Return on the WSSECD
Within 48-hours after the expiration of the
period to examine seized items after the initial
return, the law enforcement officer shall:
1. Submit a final return in the WSSECD to
the issuing court; and
2. Simultaneously turn-over the custody of
the seized computer data, as well as all
other items seized and/or the
communications or computer data
intercepted in relation thereto.
Warrant to Examine Computer Data (WECD)
It refers to a warrant applied for by law
enforcement authorities before searching a
computer device or computer system (for the
purpose of obtaining for forensic examination
the computer data) which was obtained via a
lawful warrantless arrest or by any other lawful
method.
It is available when:
1. The law enforcement authority acquires
possession of a computer device or
computer system;
2. Through a lawful warrantless arrest, or
other lawful method;
3. The law enforcement authority shall first
apply for WECD before searching for
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forensic examination the computer data
contained therein.
Content of WECD
It shall state the essential facts similar to
WDCD except that the subject matter is the
computer sought to be examined.
The application shall disclose the
circumstances surrounding the lawful
acquisition of the computer device or computer
system containing the said computer data.
Initial and Final Return of WECD
The initial and final return of WECD shall be
similarly governed by the procedures under
WSSECD.
g. Custody of Computer Data
Upon filing of the return for WDCD or WICD,
or the final return for a WSSECD or WECD
with the issuing court, the following are likewise
submitted:
1. All computer data shall be simultaneously
deposited in a sealed package with the
issuing court;
2. A complete and verified inventory of all the
other items seized
3. Affidavit of the duly authorized law
enforcement.
Duty of the Prosecutor When Criminal
Action is Instituted
Within 10 days from the time of the criminal
action is instituted, it is the duty of the
prosecutor, or his/her duly authorized
representatives, once a criminal action is
instituted, to file a motion before the issuing
court to:
1. Move for the immediate transmittal of the
records, and
2. Move for the transfer of the intercepted,
disclosed, searched, seized, and/or
examined computer data and items,
including the complete and verified
inventory thereof to the court
Within 5 days, the court shall act upon the
motion filed.
U.P. LAW BOC CRIMINAL PROCEDURE
Access and Use of Computer Data
General Rule: The package containing the
computer data deposited in the issuing court
shall not
1. be opened, or
2. the recordings replayed, or
3. its contents revealed, or,
4. in any manner as used as evidence
Exception: The court may grant so upon filing
a motion for the purpose stating:
1. the relevance of the computer data sought
to be opened, replayed, revealed, or used
as evidence; and
2. the names of the persons who will be
allowed to have access thereto, if the
motion is granted.
3. Must include proof of service of copies sent
to the person/s whose computer data is
subject of the motion.
Within 10 days from receipt of notice thereof,
the person must file comment thereto. After
which, the court shall rule on the motion, unless
a clarificatory hearing is needed.
h. Destruction of Computer Data
Duty of Service Providers and Law
Enforcement Authorities to Destroy
The service providers and law enforcement
authorities, as the case maybe, shall
immediately and completely destroy the
computer data subject of preservation and
examination upon expiration of the periods
provided in Sec. 13 and 15 of RA 10175.
1. Sec 13: Service providers preserve the
data for a minimum of 6 months, unless a
one-time extension of another 6 months is
ordered by the law enforcement authority,
or in the event that that the data was used
as evidence in which case the data is
preserved until the final termination of the
case.
2. Sec 15: After lapse of the time period
specified in the warrant, unless the court
granted extension of time to complete
examination for no longer than 30 days
(from the time of the court’s approval).
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How Destruction of Computer Data is Made
1. Made in the presence of the Branch Clerk-
of-Court, or in his/her absence, in the
presence of any other person duly
designated by the court to witness the
same
2. The accused or the person from whom the
items were seized, or his/her
representative or counsel, or law
enforcement agency may be allowed to
witness.
Provided, they appear during the
scheduled date of destruction upon written
notice to them by the Branch Clerk of
Court.
3. Within 24 hours from the destruction of
data, the Branch Clerk of Court or the
witness duly designated by court shall
issue a sworn certification as to the fact
of destruction
4. The Branch Clerk of Court shall file the said
certificate with the same court
5. The storage device or other items turned
over to the court’s custody shall be
destroyed by:
a. Shredding
b. Drilling of four holes through the
device,
c. Prying the platters apart, or
d. Other means that will sufficiently make
it inoperable.
O. PROVISIONAL
REMEDIES IN CRIMINAL
CASES
1. Nature
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 [Sec. 1, Rule
127]
If the civil action is suspended on account of
filing of the criminal action, the court with which
the civil case is filed is not thereby deprived of
its authority to issue auxiliary writs that do not
U.P. LAW BOC CRIMINAL PROCEDURE
go into the merits of the case [Ramcar, Inc v.
de Leon, G.R. No. L-1329 (1947)]
Provisional remedies are not available
when
a. Offended party has waived the civil claim
b. Offended party has reserved the civil claim
c. Offended party has already instituted a
separate civil action
d. Criminal action carries with it no civil
liability.
Note: If civil action has been waived, reserved,
or instituted separately, the provisional remedy
applicable should be applied for in the separate
civil action instituted [Riano 571, 2011 Updated
Ed.]
2. Kinds of Provisional
Remedies
The accused may present evidence to prove
his defense and damages, if any, arising from
the issuance of a provisional remedy in the
case [Sec. 11(b), Rule 119]
a. Preliminary attachment
When proper
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:
1. When the accused is about to abscond
from the Philippines
2. When the criminal action is based on a
claim for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a
public/corporate officer, 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
3. When the accused has concealed,
removed or disposed of his property, or is
about to do so
4. When the accused resides outside the
Philippines
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[Sec. 2, Rule 127]
Issuance and implementation
The writ may be issued ex parte before
acquisition of jurisdiction over the accused
[Cuarter v. CA, G.R No. 102448 (1992))
However, it may be implemented only after
acquisition of jurisdiction over the person of the
accused [Gonzalez v. State Properties, G.R.
No. 140765 (2001)]
A public prosecutor has the authority to apply
for preliminary attachment to protect the
interest of the offended party, particularly
considering that the corresponding civil liability
of the culprits is to be determined therein, no
reservation having been made of the right to
enforce it in a separate civil action [Santos v.
Judge Flores, G.R. No. L-18251 & L-18252
(1962)]
No notice to the adverse party or hearing on
the application is required before a writ of
preliminary attachment may issue as a hearing
would defeat the purpose of the provisional
remedy. The time which such hearing would
take could be enough to enable the defendant
to abscond or dispose of his property before a
writ of attachment may issue [Mindanao
Savings and Loan Assoc. v. CA, G.R. No.
84481 (1989)]
b. Injunction
General rule: Criminal prosecution may not be
stayed or restrained by injunction, preliminary
or final.
Exceptions:
1. To afford adequate protection to the
constitutional rights of the accused
2. When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions;
3. When there is a pre-judicial question which
is sub judice
4. When the acts of the officer are without or
in excess of authority
5. Where the prosecution is under an invalid
law, ordinance or regulation
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

6. When double jeopardy is clearly apparent

7. Where the court has no jurisdiction over the
offense
8. Where it is a case of persecution rather
than prosecution
9. Where the charges are manifestly false
and motivated by the lust for vengeance
10. When there is clearly no prima facie case
against the accused and a motion to quash
on that ground has been denied, and
11. Preliminary injunction has been issued by
the Supreme Court to prevent the
threatened unlawful arrest of petitioners
[Brocka v. Enrile, G.R. No. 69863 (1990)]

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