U.P.

LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

III. CRIMINAL PROCEDURE

A. GENERAL MATTERS

1. Jurisdiction over Subject Matter and Jurisdiction over Person of the

Accused Distinguished

Jurisdiction over Jurisdiction over Territorial jurisdiction

subject matter person of the accused

Definition The authority of the court… The place of the

…to
hear and decide the
case. Simply put, it
means jurisdiction
over the offense
charged
commission of the
…over the person offense charged
charged determines venue of
the action, and is an
essential element of
jurisdiction [Alfelor v.
Intia G.R. No. L-27590
(1976)]

Exception: Those
crimes mentioned in
Art. 2, RPC are not
covered by this rule

How Conferred by law; Acquired through: The offense should

acquired cannot be conferred 1. Arrest of the have been committed
by the parties accused or any one of its
2. Consent of the essential ingredients
Jurisdiction cannot accused took place within the
be fixed by the will of 3. Waiver of objections territorial jurisdiction of
the parties; nor as when the said court. [Uy v. CA,
acquired through accused enters his G.R. No. 119000
waiver, or enlarged plea (1997)] One cannot be
by the parties’ 4. Voluntary held to answer for any
omission; nor submission of the crime he committed
conferred by accused to the except in the
acquiescence of the jurisdiction of the jurisdiction where he
court, or by mere court. committed said crime
administrative policy [People v. Mercado,

Page 354 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

of any trial court G.R. No. L-2760

[Cudia v. Court of (1950)]
Appeals, G.R. No. Note: there is no
110315 (1998)] voluntary appearance
in case of special
appearance to
challenge the
jurisdiction of the court
[Garcia v.
Sandiganbayan, G.R.
Nos. 170122 & 171381
(2009)]

How to Jurisdiction is N/A Jurisdiction is

determine determined by the determined by the
which court allegations in the allegations in the
has complaint or complaint or
jurisdiction information [Avecilla information [Avecilla v.
v. People, G.R. No. People, G.R. No.
46370 (1992)]. 46370 (1992)].

Applicable Jurisdiction is N/A N/A

law to determined by the
determine procedural law in
jurisdiction force at the time of
the institution of the
action; not the law in
force at the time of
the commission of
the crime [People v.
Lagon, G.R. No.
45815 (1990)]

In determining
whether the court
has jurisdiction over
an offense, the
penalty to be
considered is that
which may, under
law, be imposed for
the offense and not

Page 355 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

the actual penalty

imposed after trial

Waiver of Cannot be waived by Right to object may be Cannot be waived by

objection the parties waived (e.g., failure of the parties
the accused to object
in time)

Principle of adherence of Exception: When subsequent legislation:

jurisdiction/continuing jurisdiction
General rule: Once a court acquires
jurisdiction over a controversy, it shall continue
to exercise it until final determination of the
case [Mendoza v. Comelec, G.R. No. 188308
(2009)].
It is not affected by:
1. A valid amendment of the information
[People v. Chupeco, G.R. No. L-19568
(1964)]; or
2. Subsequent legislation vesting jurisdiction
in another tribunal.
1. Expressly provides, or
2. Is clearly intended to apply to actions
pending before its enactment [Palana v.
People, G. R. No. 149995 (2007)]
Dismissal of the case on jurisdictional
grounds
General rule: An objection on the ground that
the court lacks jurisdiction over the subject
matter may be raised or considered motu
proprio by the court at any stage of the
proceedings or appeal
Exception: Estoppel by reasons of public
policy, as when the party has initially invoked
such jurisdiction [Tijam v. Sibonghanoy, G.R.
no. L-21450 (1968)]

Page 356 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
2. Requisites for Exercise of
Criminal Jurisdiction
Criminal jurisdiction
The authority to hear and try a particular
offense and impose the punishment for it
[People v. Mariano, G.R. No. L-40527 (1976)]
Requisites for a court to exercise
jurisdiction:
a. Subject matter jurisdiction: the offense is
one it is authorized by law to take
cognizance of
b. Territorial jurisdiction: the offense has
been committed within its territorial
jurisdiction
c. Jurisdiction over the person: the person
charged must have been brought before it
for trial, forcibly by arrest or upon his
voluntary submission to the court.
All three requisites must concur before a court
can acquire jurisdiction [Antiporda v.
Garchitorena, G.R. No. 133289 (1999), citing
Arula v. Espino, G.R. No. L-28949 (1969)].
3. Jurisdiction of Criminal
Courts
a. MTC/MeTC/MCTC
Jurisdiction
Except those cases falling within the
jurisdiction of higher courts, these courts shall
have exclusive original jurisdiction over:
1. Violations of city or municipal ordinances
committed within their territorial jurisdiction
[Sec. 32, B.P. 129, as amended]
2. Offenses punishable with imprisonment not
exceeding 6 years irrespective of the
amount of fine, and regardless of other
imposable or accessory penalties,
including civil liability irrespective of its
kind, nature, or value [Sec. 32, B.P. 129]
Page 357 of 525
REMEDIAL LAW
3. Offenses involving damage to property
through criminal negligence [Sec. 32, B.P.
129]
4. Summary procedure in certain cases
a. Violations of traffic laws, rules and
regulations
b. Violations of the rental law
c. B.P. 22 cases
d. Violation of municipal and city
ordinances
e. All other criminal cases where the
penalty prescribed by law for the
offense charged is imprisonment not
exceeding 6 months, or a fine not
exceeding P1,000, or both
f. Offenses involving damage to property
through criminal negligence where the
imposable penalty does not exceed
P10,000 [Sec. 1(b), 1991 Rules on
Summary Procedure]
5. Special jurisdiction to decide on
applications for bail in the absence of all
RTC judges in a province or city [Sec. 35,
B.P. 129, as amended by R.A. 7691].
Concurrent original jurisdiction with RTCs over
violations of R.A. 7610 (Child Abuse Act) in
cities or provinces where there are no family
courts yet, depending on the penalties
prescribed for the offense charged [Sec. 16-A,
R.A. 7610, as amended by R.A. 9231]
SC Admin Circ. No. 09-94 (1994):
# The provisions of Sec. 32(2) of B.P. 129,
apply only to offenses punishable by
imprisonment or fine, or both, in which
cases the amount of the fine is disregarded
in determining the jurisdiction of the court.
# In cases where the law only imposes the
fine, and such fine exceeds P4,000, the
RTC shall have jurisdiction, including
offenses committed by public officers
and employees in relation to their office
U.P. LAW BOC CRIMINAL PROCEDURE
b. RTC
Jurisdiction
Exclusive original jurisdiction in criminal
cases not within the exclusive jurisdiction of
any court, tribunal or body, EXCEPT those
under the exclusive and concurrent jurisdiction
of the Sandiganbayan [Sec. 20, B.P. 129]
Appellate jurisdiction over cases decided by
first-level courts within its territorial jurisdiction
[Sec. 22, B.P. 129, as amended by R.A. 7691]
Jurisdiction over criminal cases under specific
laws such as:
1. Criminal and civil aspects of written
defamation [Art. 360, RPC]
2. Criminal cases commenced by information
against a child upon determination of
probable cause by the prosecutor [Sec. 33,
R.A. 9344, as amended by R.A. 10630]
where there are no family courts [Sec. 4(g),
R.A. 9344]
3. Violence against women and children, in
the absence of an RTC designated as a
Family Court where the offense was
committed [R.A. 9262 (Anti-VAWC Act)]
4. Designated special courts over cases in
violation of R.A. 9165 (Dangerous Drugs
Act) [Sec. 90, R.A. 9165]
5. Violations of intellectual property rights [SC
Admin-Circ. No. 03-03 (2003)]
6. Money laundering cases [Sec. 5, R.A.
9160] EXCEPT those committed by public
officers and private persons in conspiracy
with such public officers, as jurisdiction is
with the Sandiganbayan
For offenses cognizable by the Sandiganbayan
where the information a) does not allege any
damage to the government or any bribery; or b)
the alleged damage to the government or the
bribery arising from the or closely related
transactions are of an amount not exceeding
P1 million [Sec. 4, P.D. 1606, as amended by
R.A. 10660]
Page 358 of 525
REMEDIAL LAW
c. Sandiganbayan
Jurisdiction
1. Violations of R.A. 3019
2. Violations of R.A. 1379
3. Violations of Book 2, Title VII, Section 2,
Chapter 2 of the RPC (Indirect Bribery,
Corruption of Public officials, etc.), where
one or more of the accused are officials
occupying the following positions in the
government, at the time of the commission
of the offense:
a. Officials of the executive branch
occupying the positions of regional
direction and higher, otherwise
classified as Grade “27” and higher of
R.A. 6758 (see enumeration in RA
10660)
b. Members of Congress and officials
thereof classified as “Grade 27” and up
under R.A. 6758 (see enumeration in
RA 10660)
4. Other offenses, simple or complex, with
other crimes committed by the above-
mentioned public officials and employees
in relation to their office.
5. Criminal cases filed pursuant to and in
connection with EO 1, 2, 14, 14-A (1986)
An offense is deemed committed in relation to
his office when:
1. The office is a constituent element of the
crime as defined in the statute
2. The offense be intimately connected with
the office of the offender
3. The fact that the offense was committed in
relation to the office must be alleged in the
Information [People v. Magallanes, G.R.
No. 118013-14 (1995)]
Failure to allege that the offense was
committed in relation to the office or was
necessarily connected with the discharge of
their functions vests jurisdiction with the RTC.
[People v. Cawaling G.R. No. 117970 (1998)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

d. Military Courts 10. Where the charges are manifestly false

and motivated by vengeance
General rule: Ordinary courts will have 11. Where there is no prima facie case and a
jurisdiction over cases involving members of motion to quash on that ground has been
the armed forces, and other persons subject denied
to military law, regardless of who the co- 12. Where preliminary injunction has been
accused or victims are. issued by the SC to prevent the threatened
unlawful arrest of petitioners [Brocka v.
Exception: When the offense is service-
Enrile, G.R. No. 69863-65 (1990)]
oriented, it will be tried by the court martial;
13. To prevent the use of the strong arm of the
Provided, that the President may, in the
law in an oppressive and vindictive manner
interest of justice, order or direct, at any time
before arraignment, that any such crimes or [Hernandez v. Albano, G.R. No. L-19272
offenses be tried by the proper civil courts. (1967)]
[Sec. 1, R.A. 7055]
B. PROSECUTION OF
4. When Injunction May Be
OFFENSES
Issued To Restrain Criminal
Prosecution 1. Criminal Actions; How
General rule: Criminal prosecution may NOT Instituted
be blocked by court prohibition or injunction
[Brocka v. Enrile, G.R. No. 69863-65 (1990)] The institution of a criminal action generally
for the reason that public interest requires that depends upon whether the offense is one
criminal acts be immediately investigated and which requires a preliminary investigation (PI)
prosecuted for the protection of society or not:
[Domingo v. Sandiganbayan, G.R. No. 109376
(2000)] Offenses requiring Other offenses
PI
Exceptions
1. To afford adequate protection to the Nature of Offenses
constitutional rights of the accused
2. For the orderly administration of justice Those where the Offenses where the
3. To avoid oppression or multiplicity of suits penalty prescribed penalty prescribed
4. Where there is a prejudicial question which by law is at least 4 by law is less than
is sub judice years, 2 months 4 years, 2 months,
5. Where acts of the officer are without or in and 1 day [Sec. 1, and 1 day
excess of authority Rule 112, as
6. When the prosecution is under an invalid amended by A.M.
law, ordinance or regulation No. 05-8-26-SC]
7. When double jeopardy is clearly apparent
8. When the court has no jurisdiction over the How Instituted
offense
9. When it is a case of persecution rather than
prosecution

Page 359 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

By filing the a. Filed directly Criminal cases required to be filed with

lupon
complaint with the with the MTCs and
Offenses punishable by imprisonment not
appropriate officer MCTCs; or
exceeding one (1) year or a fine not exceeding
for PI [Sec. 1(a), b. Filed with the
P5,000 [Sec. 408(c), LGC] and where the
Rule 110] office of the
parties actually reside in the same city or
prosecutor [Sec. municipality
1(b), Rule 110]
c. In Manila and Exceptions, when [PGP-ODP]:
other chartered 1. There is no Private offended party [Sec.
cities, the 408(d), LGC]
complaint shall be 2. One party is the Government or any
filed with the office subdivision thereof [Sec. 408(a), LGC];
of the prosecutor 3. One party is a Public officer or employee,
unless otherwise and the dispute relates to the performance
provided in their of his Official functions [Sec. 408(b), LGC];
charters [Sec. 1(b), 4. Parties actually reside in Different cities or
Rule 110] municipalities, EXCEPT where such
barangays adjoin each other AND the
parties agree to amicable settlement by an
Effect of institution appropriate lupon [Sec. 408(f), LGC];
The institution of a criminal action shall 5. Accused is under Police custody or
interrupt the running of the prescription period detention
of the offense charged UNLESS otherwise
provided in special laws [Sec. 1, Rule 110] 2. Who May File; Crimes That
Falling under the authority of the lupon
Cannot be Prosecuted De
While the dispute is under mediation, Officio
conciliation or arbitration, the prescriptive
periods shall be interrupted upon the filing of General rule: Complaint or Information may
the complaint with the Punong Barangay only be filed or dismissed if there is prior written
[Sec. 410, LGC] authority or approval of the provincial or city
prosecutor or chief state prosecutor or the
Limitation: Interruption shall not exceed 60 Ombudsman or his deputy [Sec. 4, Rule 112,
days from filing of complaint with the punong as amended by A.M. 05-8-26-SC] .
barangay [Sec. 410(c), LGC].
Note: Secs. 3 and 4, Rule 110 discuss who
The prescriptive periods shall resume upon should subscribe (not file) the complaint or
receipt by the complainant information.
1. of the complaint or
2. the certificate of repudiation or Exceptions: Crimes that cannot be
3. of the certification to file action issued by prosecuted de oficio [ACSAAD]:
the Lupon or Pangkat Secretary 1. Adultery
2. Concubinage
3. Seduction
4. Abduction
5. Acts of Lasciviousness

Page 360 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

6. Defamation outrage in silence rather than go through with

the scandal of a public trial [People v.
Rationale Yparraguirre, G.R. No. 124391 (2000)]
This was imposed out of consideration for the
aggrieved party who might prefer to suffer the

Adultery and Concubinage Seduction, Abduction, Acts of Defamation, which

Lasciviousness consists of imputation
of any of the foregoing
offenses

Who Can File

Offended Spouse Offended party, it includes: Offended Party

a. Minors, even independently of
those in item b, except if
incompetent or incapable
b. Parents, grandparents, guardian
– right to file shall be exclusive of
all other persons and shall be
exercised successively in this
order
c. State – Only if the offended party
dies or becomes incapacitated
before she can file the complaint,
and she has no known parents,
grandparents or guardian

Requirements

a. Must include both guilty The offender must not have been None
parties, if both alive pardoned by any of a and b in the
b. Must not have consented preceding column
to the offense or
pardoned the offenders
c. c. Marital relationship
must still be subsisting
[Pilapil v. Ibay-Somera,
G.R. No. 80116, (1989)].

Page 361 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

EVENTS THAT MAY OCCUR AFTER THE [People v. de Guzman, [G.R. No. 185843
FILING OF THE CASE (2010)]
a. Death of offended party
Pardon distinguished from Consent
Death after filing the complaint would not
Pardon Consent
deprive the court of jurisdiction. The death of
the offended party in private crimes is essential Definition
solely for the initiation of the action. [People v.
Diego, G.R. No. 1626 (1937)] Refers to past acts Refers to future acts

It is not one of the causes for extinguishment of In order to absolve In order to absolve
criminal liability enumerated in Art. 89 of the the accused from the accused from
Revised Penal Code. liability, it must be liability, it is sufficient
extended to both even if granted only
b. Desistance by offended party
offenders to the offending
spouse
Desistance does not bar the People of the
Philippines from prosecuting the criminal
action, but it operates as a waiver of the right When given
to pursue civil indemnity [People v. Amaca,
G.R. No. 110129 (1995)]. Given after the Given before the
commission of the commission of the
c. Pardon by offended party
crime but before the crime
institution of the
General rule: A pardon by the offended party
criminal action
does not extinguish criminal action but civil
liability with regard to the interest of the injured In adultery and concubinage
party is extinguished by his express waiver
[Art. 23, RPC]. If there is more than one
May be done Can only be done
accused, the pardon must be extended to all
expressly or expressly
offenders.
impliedly
Exception: Seduction, abduction and acts of
lasciviousness shall not be prosecuted if the There is implied
offender has been expressly pardoned by the pardon when the
offended party or her parents, grandparents or offended party
guardian [Art. 344, RPC] [Sec. 5, Rule 110] continued to live with
his spouse even
When should pardon be done after the commission
General rule: Pardon must be made before the of the offense. There
filing of the criminal complaint in court [People is no implied pardon
v. Bonaagua, G.R. No. 18897 (2011)] when the wife
continues living in
Exception: In rape, marriage between the the conjugal home
offender and the offended party would be after her arrest only
effective as pardon even when the offender
in order to take care
has already commenced serving his sentence

Page 362 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
of their children
[Ligtas v. CA, G.R.
No. L-47498 (1987)]]
In Seduction, Abduction and Acts of
Lasciviousness
Must be expressly Offended party
made cannot consent to
the crime
d. Subsequent marriage
General rule: In cases of seduction,
abduction, acts of lasciviousness and rape,
the marriage of the offender with the offended
party shall extinguish the criminal action or
remit the penalty already imposed upon him,
together with the co-principals, accomplices,
and accessories after the fact of the above-
mentioned crimes [Art. 344, RPC]
Exceptions:
1. Marriage was invalid or contracted in bad
faith to escape criminal liability [People v.
Santiago, G.R. No. L-27972 (1927)]
2. In multiple rape, insofar as the other
accused in the other acts of rape
respectively committed by them are
concerned [People v. Bernardo (38 O.G.
3479)]
Remedies if the prosecutor refuses to file
an information
a. Action for mandamus to compel the
prosecutor to charge the accused, in case
of grave abuse of discretion
b. Lodge a complaint before the court having
jurisdiction over the offense;
c. Take up the matter with the Department of
Justice under the appropriate
administrative procedure;
d. Institute an administrative charge against
the erring prosecutor; and
Page 363 of 525
REMEDIAL LAW
e. File criminal action against the prosecutor
for negligence to prosecute or tolerance of
the crime [Art 208, RPC] with the
corresponding civil action for damages for
failure to render service by a public officer
[Art 27, NCC]
3. Criminal Actions, When
Enjoined
See When Injunction May Be Issued To
Restrain Criminal Prosecution, supra.
4. Control of Prosecution
General rule: All criminal actions commenced
by a complaint or information shall be
prosecuted under the direction and control
of the prosecutor.
Exception: A private prosecutor may be
authorized in writing by the Chief of the
Prosecution office or the Regional State
Prosecutor to prosecute the case subject to the
approval of the court [Sec. 5, Rule 110, as
amended by A.M. No. 02-2-07-SC (2002)]
Conditions for a private prosecutor to
prosecute a criminal action
a. The public prosecutor has heavy work
schedule or there is no public prosecutor
assigned in the province or the city
b. The private prosecutor is authorized in
writing by the Chief of the Prosecutor office
or the Regional State Prosecutor
c. The authority of the private prosecutor was
approved by the Court
d. The private prosecutor shall continue to
prosecute the case up to the end of the trial
unless the authority is revoked or otherwise
withdrawn. [Sec. 5, Rule 110, A.M. No. 02-
2-07-SC (2002)]
e. In case of withdrawal or revocation of
authority, the same must be approved by
the court [DOJ Memorandum Circular No.
25 (2002)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

f. The prosecution of the civil liability has not EXTENT OF PROSECUTOR’S CONTROL
been reserved or waived.
Prior to filing After filing

Rule in Cases filed before MTCs/MCTCs

When the prosecutor assigned thereto or to the Matters which are The following
case is not available, the following may within the control of matters are already
prosecute the case: the prosecutor within the control of
a. Offended party 1. What case to file the court and no
b. Any peace officer; or 2. Whom to longer within the
c. Public officer charged with the enforcement prosecute discretion of the
of the law violated may prosecute the case. 3. Manner of prosecutor:
prosecution 1. Suspension of
This authority shall cease upon actual 4. Right to arraignment [Sec
intervention of the prosecutor or upon elevation
withdraw 1, Rule 116]
of the case to the RTC [OCA Circular No. 39-
information 2. Granting a
02, stating in toto Sec. 5, Rule 110, as
before reinvestigation
amended by A.M. No. 02-2-07-SC]
arraignment [Levista v.
Cases in the Court of Appeals and the even without Alameda, G.R.
Supreme Court notice and No. 182677
General rule: Only the Solicitor General may hearing [Crespo (2010)]
bring or defend actions in behalf of the v. Mogul, G.R. 3. Dismissal of the
Republic of the Philippines, or represent the No. L-53373 case [Crespo v.
People of the Philippines or State in criminal (1987)] Mogul, G.R. No.
proceedings before the SC and the CA [Cariño L-53373 (1987)]
v. De Castro, G.R. No. 176084 (2008)] 4. Downgrading of
the offense or
Exceptions: dropping of
a. When there is denial of due process of law accused before
to the prosecution and the State or its
plea [Sec. 14(b),
agents refuse to act on the case to the
Rule 110]
prejudice of the State and the private
offended party [Cariño v. De Castro, G.R.
No. 176084 (2008)], and Once a complaint or information is filed in court,
b. When the private offended party questions any disposition of the case as its dismissal or
the civil aspect of a decision of a lower the conviction or acquittal of the accused rests
court [Heirs of Delgado v. Gonzalez, G.R. on the sound discretion of the court. A motion
No. 184337 (2009)] to dismiss should be filed with the court, which
has the option to grant or deny it [Crespo v.
Cases elevated to the Sandiganbayan and Mogul, G.R. No. L-53373 (1987)]
the Supreme Court
The Office of the Ombudsman, through the
Special Prosecutor, shall represent the People
of the Philippines, except in cases filed
pursuant to EO Nos. 1,2, 14, 14-A as these are
under the PCGG [Sec. 4, P.D. 1606, as
amended by R.A. 10660]

Page 364 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Limitations on the court’s control 5. Sufficiency of Complaint or

a. The prosecution is entitled to notice of
hearing;
Information
b. The court must suspend arraignment, upon
motion by the proper party, when a petition Complaint Information
for review of the resolution of the
prosecutor is pending at either the DOJ, or Definition
the OP; provided, that the period of
suspension shall not exceed 60 days
counted from the filing of the petition with Sworn written statement Accusation in
the reviewing office [Sec. 11(c), Rule 116] charging a person with writing, charging a
c. The court must make its own independent an offense, subscribed person with an
evaluation or assessment of the merits of by the offended party, offense, subscribed
the case (e.g. on a motion to dismiss any peace officer or by the prosecutor
[should be to quash]). Otherwise, there will other public officer and filed with the
be a violation of private complainant’s right charged with the court [Sec. 4, Rule
to due process and erroneous exercise of enforcement of the law 110]
judicial discretion [Martinez v. CA, [G.R. violated [Sec. 3, Rule
No. L-112387 (1994)] 110]

Who subscribes
Effect of lack of presence of the fiscal
Although the private prosecutor had previously
been authorized to present the evidence for the Subscribed by: Subscribed by the
prosecution, the absence of the City Fiscal at a. offended party; prosecutor
the hearing means that the prosecution of the b. any peace officer;
case was NOT under the control of the City or *Indispensable
Fiscal; thus, it follows that the evidence c. other officer requirement.
presented by the private prosecutor at said charged with the
hearing could not be considered as enforcement of the
evidence for the plaintiff [People v. Beriales, law violated.
G.R. No. L-39962 (1976)]
Where filed
Note: OCA Circular No. 39-02 [stating in toto
Sec. 5, Rule 110, as amended by A.M. No. 02- May be filed in court or Filed with the court
2-07-SC]: However, in MTCs or MCTCs when the prosecutor’s office
the prosecutor assigned thereto or to the [Sec. 1, Rule 110]
case is not available, the offended party,
any peace officer, or public officer charged Oath Requirement
with the enforcement of the law violated
may prosecute the case. This authority shall
Must be “sworn,” hence Requires no oath
cease upon actual intervention of the
under oath
prosecutor or upon elevation of the case to the
*Fiscal filing the
RTC.
information is
acting under the
oath of his office

Page 365 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
[NOTE: The complaint contemplated under
Sec. 3 differs from the complaint filed in the
prosecutor’s office for purposes of preliminary
investigation.]
CONTENT REQUIRED FOR VALIDITY OF
AN INFORMATION
A complaint or information is sufficient if it
states the [ADA-ODP]:
a. Name and surname of the Accused; or
any appellation or nickname by which he is
known or had been known
i. When an offense is committed by more
than one person, all of them shall be
included in the complaint or information
[Sec. 6, Rule 110]
b. Designation of the offense given by the
statute
c. Acts or Omissions complained of as
constituting the offense
d. Name of the Offended party
e. Approximate Date of the commission of
the offense, and
f. Place where the offense was committed
FORM REQUIRED FOR VALIDITY
a. In writing
b. In the name of the People of the Philippines
c. Against all persons responsible for the
offense involved [Sec. 2, Rule 110]
Test for sufficiency of the information
Whether the crime is described in intelligible
terms with such particularity as to apprise the
accused with reasonable certainty of the
offense charged [Lazarte v. Sandiganbayan,
G.R. No. 180122 (2009)]
General rule: A defective information cannot
support a judgment of conviction
Exception: Where the defect in the information
was cured by evidence during the trial and no
objection appears to have been raised
[Abunado v. People, G.R. No. 159218 (2004)]
Page 366 of 525
REMEDIAL LAW
Waiver of objection to sufficiency
General rule: An accused is deemed to have
waived his right to assail sufficiency of the
information when he voluntarily entered a plea
during arraignment and participated in the trial
[Frias v. People, G.R. No. 171437 (2007)].
Objections relating to the form of the complaint
or information cannot be made for the first time
on appeal. The accused should move for a bill
of particulars or for quashal of information
before arraignment, otherwise he is deemed to
have waived his objections to such a defect
[People v. Teodoro, G.R. No. 172372 (2009)]
Exception: When the defect consists in the
lack of authority of the prosecutor who filed the
information, as such defect would be
jurisdictional. [Sec. 9, Rule 117]
a. Name of the accused
The complaint or information must state the
name and surname of the accused or any
appellation or nickname by which he has been
or is known.
If his name cannot be ascertained, he must be
described under a fictitious name with a
statement that his true name is unknown.
If the true name of the accused is thereafter
disclosed by him or appears in some other
manner to the court, such name shall be
inserted in the complaint or information and
record. [Sec. 7, Rule 110]
John Doe Informations
When the information does not sufficiently
describe the accused and all are described as
“John Does,” the arrest warrants against them
are void. [Pangandaman v. Casar, G.R. No. L-
71782 (1988)]
Mistake in the name of the accused
Mistake does not necessarily amount to a
mistake in the identity of the accused
U.P. LAW BOC CRIMINAL PROCEDURE
especially when sufficient evidence is adduced
to show that the accused is pointed to as one
of the perpetrators of the crime. [People v.
Amodia, G.R. No. 173791 (2009)]
b. Name of the offended party
The complaint or information must state the
name and surname of the person against
whom or against whose property the offense
was committed, or any appellation or nickname
by which such person has been or is known. If
there is no better way of identifying him, he
must be described under a fictitious name.
a. In crimes against property, if the name of
the offended party is unknown, the property
must be described with such particularity
as to properly identify the offense charged
b. If the true name of the person against
whom or against whose property the
offense was committed is thereafter
disclosed or ascertained, the court must
cause such true name to be inserted in the
complaint or information and the record
c. If the offended party is a juridical person, it
is sufficient to state its name, or any name
or designation by which it is known or may
be identified, without need of averring that
it is a juridical person. [Sec. 12, Rule 110]
c. Date of commission
General rule: It is not necessary to state the
precise date the offense was committed. The
offense may be alleged to have been
committed on a date as near as possible to
the actual date of the commission.
Exception: When it is an essential element of
the offense (e.g., abortion, bigamy) [Sec. 11,
Rule 110]
Variance in alleged date from proven in trial
General rule: Allegation in an information of a
date different from the one established during
trial is not fatal to the prosecution. It is just
deemed supplanted by evidence presented
Page 367 of 525
REMEDIAL LAW
during trial or may even be corrected by a
formal amendment of the information.
Exception: Fatal when discrepancy is so great
that it induces the perception that the
information and the evidence are no longer
pertaining to one and the same offense. The
defective allegation in the information is struck
down for violating the right of the accused to be
informed [People v. Delfin, G.R. No. 201572
(2014)]
d. Place of commission
General rule: The complaint or information is
sufficient if it can be understood from its
allegations that the offense was committed or
some of its essential ingredients occurred at
some place within the jurisdiction of the court.
Exception: If the particular place where it was
committed constitutes an essential element of
the offense charged or is necessary for its
identification [Sec. 10, Rule 110]
6. Designation of Offense
The designation of the offense given by the
statute must be stated in the complaint or
information with the averment of acts or
omissions constituting the offense and the
attendant qualifying and aggravating
circumstances. If there is no designation of the
offense, reference shall be made to the section
or subsection of the statute punishing it. [Sec.
8, Rule 110]
Enough to describe with sufficient
particularity
Specific acts of accused do not have to be
described in detail in the information, as it is
enough that the offense be described with
sufficient particularity to make sure the
accused fully understands what he is being
charged with [Guy v. People, G.R. No. 166794-
96 (2009)]
U.P. LAW BOC CRIMINAL PROCEDURE
Allegations in the complaint prevail:
# Over the designation of the offense: The
facts, acts or omissions alleged and not its
title, determine the nature of the crime. The
designation is only the prosecutor’s
conclusion [People v. Magdowa, G.R. No.
48457 (1941)]
# Over reference to the section or
subsection of the statute punishing the
crime: What is controlling and determines
the nature and character of the crime
charged are the facts alleged in the
information. [Batulanon v. People, G.R. No.
139857 (2006)]
Conviction of a more serious crime than
alleged
General rule: Accused may be convicted of a
crime more serious than that named in the title
if such crime is covered by the facts alleged in
the body of the information and its commission
is established by evidence [Buhat v. CA, G.R.
No. 119601 (1996)]]
Exception: Cannot be convicted under one act
when he is charged with the violation of another
if the change:
# Involves change in the theory of the trial
# Requires a different defense
# Surprises the accused in any way [US v.
Panlilio, G.R. No. L-9876 (1914)]
7. Cause of the Accusation
The acts or omissions complained of as
constituting the offense and the qualifying and
aggravating circumstances must be stated:
a. In ordinary and concise language; and
b. Not necessarily in the language used in the
statute; but
c. In terms sufficient to enable a person of
common understanding to know what
offense is being charged, as well as its
qualifying and aggravating circumstances
[Sec. 9, Rule 110]
Page 368 of 525
REMEDIAL LAW
Purpose of requiring allegation of every
element
1. To enable the court to pronounce proper
judgment
2. To furnish the accused with information as
to enable him to make a defense
3. As a protection against further prosecution
for the same cause
Failure to allege:
# Any of the elements of the offense:
Accused cannot be convicted of the
offense charged, even if the missing
elements have been proven during trial.
Even a plea of guilty will not cure such
defect, nor justify conviction.
# Qualifying and aggravating
circumstances: They are not considered
even if proven during trial [Viray v. People,
G.R. No. 205180 (2013)]
○ If aggravating circumstances were not
alleged, they can still be the basis for
awarding exemplary damages under
Art. 2229 (by way of example or
correction for public good) [People v.
Dalisay, G.R. No. 188106 (2009)]
Note: The failure to allege such cannot be
cured by an amendment of the information
after the accused entered his plea [People v.
Antonio, G.R. No. 142727 (2002)]]
Rule on Negative Averments
General rule: Whenever an accused claims to
be within the statutory exception, it is more
logical and convenient that he should aver and
prove the fact than that the prosecutor should
anticipate such defense, and deny it [Cabrera
v. Marcelo, G.R. Nos. 157419-20 (2004)]
Exception: Where the exemptions are so
incorporated in the language defining the crime
that the ingredients of the offense cannot be
accurately and clearly set forth if the exemption
were omitted, the indictment, to be sufficient,
must show that the person charged does not
U.P. LAW BOC CRIMINAL PROCEDURE
fall within the exemptions [People v. San Juan,
G.R. No. L-22944 (1968)]
When habitual delinquency is alleged
The information must specify:
a. Date of the commission of the previous
crimes
b. The date of last conviction or release
[People v. Venus, G.R. No. 45141 (1936)]
Where complex crime is charged
Allegations do not necessarily have to charge
a complex crime as defined by law. It is
sufficient that the information contains
allegations which show that one offense was a
necessary means to commit the other [People
v. Alagao, G.R. No. L-20721 (1966)]
8. Duplicity of the Offense;
Exception
Duplicity of the offense is the joinder of two or
more separate and distinct offenses in one and
the same information or complaint [Loney v.
People, G.R. No. 152644 (2006)]
General rule: A complaint or information must
charge only one offense.
Exception: Multiple offenses may be charged
when the law prescribes a single punishment
for various offenses [Sec. 13, Rule 110]:
a. Complex crimes - E.g., Acts committed in
furtherance of rebellion are crimes in
themselves but absorbed in the single
crime of rebellion [Enrile v. Salazar, G.R.
No. 92163 (1990)]
b. Special complex crimes
c. Continuous crimes (Requisites:)
i. Plurality of acts performed
separately during a period of time
ii. Unity of penal provisions violated
iii. Unity of criminal intent [People v.
Ledesma, G.R. No. L-41522
(1976)]
Page 369 of 525
REMEDIAL LAW
d. Crimes susceptible of being committed in
various modes
i. The allegations in the information
would be regarded as a description
of only one offense and information
is not rendered defective [Jurado v.
Suy Yan, G.R. No. L-20714 (1971)]
e. Crimes of which another offense is an
ingredient
f. When a single act violates different
statutes [Loney v. People, G.R. No.
152644 (2006)]
Remedy to duplicity of offense
Accused must move for the quashal of the
information before arraignment. [Sec. 1 and 3,
Rule 117]
Failure to file motion to quash
Accused is deemed to have waived the
objection and may be convicted of as many
offenses are charged and proved. [Sec. 3, Rule
120]
9. Amendment or Substitution
of Complaint or Information
Amendment
A change in either the form or substance of the
same offense in the Information. It is not a new
charge; it just supersedes the original
Information but relates back to the date at
which the original information was filed
[Teehankee Jr. v. Madayag, G.R. No. 103102
(1992)]
Not all defects in an information may be cured
by an amendment. An Information which is void
ab initio cannot be amended to obviate a
ground for quashal. An amendment which
operates to vest jurisdiction is impermissible
[Leviste v. Alameda G.R. No. 182677 (2010)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

KINDS OF AMENDMENT Amendment as to General rule:

Formal Amendment Substantial form can only be Amendment as to
Amendment made under two substance at this
conditions: stage of the case is
Definition 1. With leave of court; proscribed [People
and v. Zulueta, G.R. No.
This merely states This consists of the 2. It does not cause L-4017 (1951)]
with additional recital of facts prejudice to the since:
precision constituting the rights of the 1. It violates the right
something which is offense charged accused [Sec 14, to be informed of
already contained and determinative Rule 110] the nature and
in the original of the jurisdiction cause of the
information, and of the court accusation during
which, therefore [Teehankee v. his plea [Buhat v.
adds nothing Madayag, G.R. No. People, G.R. No.
essential for 103102 (1992)] 119601 (1996)]
conviction for the 2. It violates the rule
crime charged on double jeopardy.
[Gabionza v. CA,
G.R. No. 140311 Exception:
(2001)] Amendment may be
allowed if it is
When Amendment should be made beneficial to the
accused, [People v.
Before plea or arraignment Janairo, G.R. No.
129254 (2007)]
General rule: Any formal or substantial
amendment, made before the accused Test Whether An Amendment Is Formal
enters his plea may be done without leave Whether or not a defense under the original
of court [Sec. 14, Rule 110] information would be equally available after the
amendment and whether or not any evidence
Exception: If the amendment downgrades the accused might have would be equally
the nature of the offense charged in, or applicable in one form as in the other [People
excludes any accused from, the v. Degamo, G.R. No. 121211 (2003), citing
complaint/information, it can be made only Teehankee v. Madayag, G.R. No. 103102
1. Upon motion of the prosecutor (1992)]
2. With notice to the offended party and
SUBSTITUTION OF INFORMATION
3. With leave of court
When it becomes manifest at any time before
judgment that a mistake has been made in
After plea and during trial charging the proper offense and the accused
cannot be convicted of the offense charged or
any other offense necessarily included therein,
the accused shall not be discharged if there
appears good cause to detain him. In such

Page 370 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

case, the court shall commit the accused to Offense The amended Involves a
answer for the proper offense and dismiss the
involved information different
original case upon the filing of the proper
refers to the offense which
information [Sec. 19, Rule 119, ROC]
same offense does not
charged in the include those
Limitations of substitution
a. At any time before judgment [Sec. 14, Rule original provided in
110] information or the original
b. The accused cannot be convicted of the to an offense charge;
offense charged or of any other offense which is cannot invoke
necessarily included therein [Sec. 19, Rule included in the double
119] original jeopardy
c. The accused would not be placed in double charge; can
jeopardy [Sec. 14, Rule 110] invoke double
jeopardy
Amendment and Substitution
Distinguished Double Can be Cannot be
Amendment Substitution jeopardy invoked only if invoked.
as the new Substitution
Applicabi- The same Involves Defense information is presupposes
lity attempted, different a substantial that the new
frustrated, offense amendment information
necessarily and it was involves a
includes or done after the different
included plea offense which
offense does not
include or is
Scope Formal or Substantial not included in
substantial changes the original
changes charge.

Necessity Amendment Must be with

of leave of before plea leave of court [Teehankee Jr. v. Madayag, G.R. No. 103102,
court has been (1992)]
entered Can
be effected Variance between Allegation and Proof
without leave Variance Consequence
of court

Necessity When Another PI is When the offense The accused will

of new PI amendment is entailed and proved is LESS than be convicted of
and plea the offense charged the offense
Only as to accused has
form, no need to plead anew proved
for another PI [Sec. 4, Rule
and retaking 120]
of plea

Page 371 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

When the offense The accused will Those In the proper court of the
proved is GREATER be convicted of committed on first port of entry or of
than the offense the offense board a any municipality or
charged charged vessel in the territory through which
[Sec. 4, Rule course of its such vessel passed
120] voyage during its voyage, subject
to the generally accepted
When the offense The case should principles of international
proved is DIFFERENT be dismissed law [Sec. 15, Rule 110]
and NOT and a new
NECESSARILY Information Piracy, which May be instituted
INCLUDED/INCLUDES should be filed, has no anywhere [People v. Lol-
the offense charged charging the territorial lo and Saraw, G.R. No.
proper offense. limits 17958 (1922)]
[Sec. 14, Rule
110] Libel If one of the offended
parties is a private
individual:
10. Venue of Criminal Actions a. Where the libelous
article is printed and first
General rule: Venue is criminal cases is published, or
jurisdictional. In all criminal prosecutions, the b. Where said
action must be instituted and tried in the courts individual actually
of the municipality or territory where:
resides
a. The offense was committed, or
b. Any of its essential ingredients occurred
If one of the offended
[Sec. 15(a), Rule 110].
parties is a public official:
a. Where the official
Exceptions:
holds office at the time of
Crime Venue the commission of the
offense
Felonies Proper court where 1. If the office is in
under Art. 2, criminal action was first Manila, then CFI Manila
RPC filed [Sec. 15, Rule 110] 2. If the office is any
other city or province,
Those In the court of any then file where he holds
committed on municipality or territory office
a railroad where such train, aircraft, b. Where the libelous
train, aircraft, or other vehicle passed article is printed and first
or any other during its trip, including published
public or place of departure and
private vehicle arrival [Sec. 15, Rule
in the court of 110]
its trip

Page 372 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
Cases filed May be filed in the place
under B.P. 22 where the check was
dishonored or issued. In
the case of a cross-
check, in the place of the
depositary or collecting
bank [People v. Grospe,
G.R. No. L-74053-54,
(1988)]
Illegal The victim has the option
recruitment to file the case in his
cases (R.A. place of residence or in
8042 or the place where the
Migrant crime was committed
Workers Act) [Sto Tomas v. Salac G.R.
No. 152642 (2012)]
Violations of RTCs have jurisdiction
RA 10175 over any violation of the
(Cybercrime provisions of the Act,
Prevention including any violation
Act of 2012) committed by a Filipino
national regardless of the
place of commission
[Sec. 21]
In exceptional SC has the power to
circumstances order a change of venue
to ensure a or place of trial to avoid
fair trial and miscarriage of justice
impartial [Sec. 5(4), Art. VII,
inquiry Constitution]
Transitory or The courts of the
continuing territories where the
offenses essential ingredients of
the crime took place
have concurrent
jurisdiction. The first
court taking cognizance
of the case will exclude
the others [People v.
Grospe, G.R. No. L-
74053 (1988)]
Page 373 of 525
REMEDIAL LAW
11. Intervention of Offended
Party
General rule: An offended party has the right
to intervene in the prosecution of a crime,
where the civil action for recovery of civil
liability is instituted in the criminal action [Sec.
16, Rule 110]
Note: Regardless of the intervention, the
prosecution of the case is still subject to the
control of the prosecutor [Ricarze v. People,
G.R. No. 160451 (2007)]
Exceptions:
a. Where, from the nature of the crime and the
law defining and punishing it, no civil
liability arises in favor of a private
offended party (e.g. treason, rebellion,
espionage and contempt) [Rodriguez v.
Ponferrada, G.R. No. 155531-34 (2005)]
b. Where, from the nature of the offense, the
private offended party is entitled to civil
indemnity arising therefrom but he has
1. Waived the same or
2. Expressly reserved his right to
institute a separate civil action or
3. Already instituted such action
[Rodriguez v. Ponferrada, G.R. No. 155531-34
(2005)]
C. PROSECUTION OF
CIVIL ACTION
1. Rule on Implied Institution of
Civil Action with Criminal
Action
General rule: The civil action for the recovery
of civil liability arising from the offense charged
is deemed instituted with the criminal action.
U.P. LAW BOC CRIMINAL PROCEDURE
Exception: When the offended party:
a. Waives the civil action
b. Reserves the right to institute it separately
c. Institutes the civil action prior to the
criminal action; [Sec. 1, Rule 111]
Civil liability of employer in a criminal
action
At most, the employer can only be held
subsidiarily liable for the delict committed by
his employee. [Art. 102, 103, RPC] The
employer cannot be held vicariously liable,
under Art. 2180, in the criminal action.
[Maniago v. CA, G.R. No. 101809 (1996)]
2. When Civil Action May
Proceed Independently
a. Independent civil actions
Independent civil actions those that are
separate and distinct from and shall proceed
independently of the criminal action. Only a
preponderance of evidence shall be required in
such cases: [Sec. 3, Rule 111]
a. When the accused in a criminal
prosecution is acquitted on the ground that
his guilt has not been proved beyond
reasonable doubt, a civil action for
damages for the same act or omission may
be instituted [Art 29, NCC]
b. Cases involving violation of constitutional
rights, defamation, fraud, physical injuries,
refusal or failure to render aid or protection
by the members of the police or the
prosecuting attorney, quasi-delict) [Sec. 3,
Rule 111] [Art. 32, 33, 34, 35 and 2176,
NCC]
Prohibition on double recovery
In no case may the offended party recover
damages TWICE for the same act or omission
charged in the criminal action. [Sec. 3, Rule
111]
Note: The judgment of the court must state the
civil liability or damages to be recovered by the
Page 374 of 525
REMEDIAL LAW
offended party from the accused, if any,
EXCEPT, when enforcement of civil liability by
a separate civil action has been reserved or
waived. [Sec. 2, Rule 120, ROC]
b. Reservation of right to file civil
action
When reservation shall be made
1. Before the prosecution starts to present its
evidence, and
2. Under circumstances affording the
offended party a reasonable opportunity to
make such reservation. [Sec. 1(2), Rule
111]
Note: Failure of the court to adjudge as to civil
liability amounts to the reservation of the right
to a separate civil action.
Effect of reservation of right
The prescriptive period of the civil action that
was reserved shall be tolled. [Sec. 2, Rule 111]
When reservation to file separately not
allowed
1. B.P. 22 cases [Sec. 1(b), Rule 111]
2. Cases cognizable by the Sandiganbayan
[Sec. 4, P.D. 1606, as amended by R.A.
10660]
3. Tax cases [Sec. 7(b)(1), RA 9282]
Note: In such cases, only the civil liability
arising from the crime charged (cause of action
arising from the delict) is deemed instituted.
[Sarmiento v. CA, G.R. No. 122502 (2002)]]
c. Separate action filed by the
accused
No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case, but any cause of action which
could have been the subject thereof may be
litigated in a separate civil action [Sec. 1, Rule
111]
U.P. LAW BOC CRIMINAL PROCEDURE
3. When Separate Civil Action Is
Suspended
When the civil action is filed before the
criminal action
General Rule: If the civil action is instituted
before the institution of the criminal action,
such pending civil action, in whatever stage it
may be found, shall be suspended until final
judgment of the criminal action has been
rendered. [Sec. 1, Rule 111]
Exceptions:
a. In cases of independent civil actions
b. In cases where the civil action presents a
prejudicial question
c. Where the civil action is not one intended
to enforce the civil liability arising from the
offense
Note: Rules preclude a motu proprio
suspension by the judge of the civil action; it
must be by petition of the defendant [Yap v.
Paras, G.R. No. 101236 (1992)]]
Consolidation of civil with criminal action
Before judgment on the merits is rendered in
the civil action, such may be consolidated with
the criminal action in the court trying the
criminal action, upon motion of the offended
party. The evidence already adduced in the
civil action will be automatically reproduced in
the criminal action. [Sec. 2, Rule 111]
Note: There can also be no motu proprio
consolidation. It must be upon motion of the
offended party.
When criminal action filed before
After the criminal action has been commenced,
the separate civil action arising therefrom
cannot be instituted until final judgment has
been entered in the criminal action. [Sec. 1,
Rule 111]
Page 375 of 525
REMEDIAL LAW
4. Effect of Death of the
Accused or Convicted On
Civil Action
Before Arraignment
The criminal case shall be dismissed
without prejudice to any civil action that
the offended party may file against the
estate of the deceased [Sec. 4, Rule 111]
After arraignment and during pendency
of the criminal action
The civil liability is extinguished. But,
a. An independent civil action enforcing
liabilities under Art. 32, 33, 34, 35 and
2176 may be continued against the
estate or legal representative of the
accused, after proper substitution.
b. b. If the civil action has been reserved
and subsequently filed, the civil action
shall proceed after substitution of
parties. [Sec. 4, Rule 111]
During appeal
Civil and criminal liabilities are extinguished
[People v. Alison, G.R. No. L-30612 (1983)]
Note: Only civil liability ex delicto is
extinguished. A separate civil action may
be instituted based on other sources of civil
liability [People v. Culas, G.R. No. 211166
(2017)]
After judgment
The civil liability is not extinguished. Claims
shall be filed against the estate of the
accused under Rule 86 of the ROC. [Sec. 5,
Rule 86]
U.P. LAW BOC CRIMINAL PROCEDURE
5. Prejudicial Question
Definition
One which arises in a case, where the
resolution of which is a logical
antecedent of the issue involved therein
and the cognizance of which pertains to
another tribunal [People v. Consing, G.R.
No. 148193 (2003)]
There is a prejudicial question only when
the matter that has to be priorly decided
by another authority is one where the
cognizance of which pertains to that
authority and should not, under the
circumstances, be passed upon by the
court trying the criminal case [Rojas v.
People, G.R. No. L-22237 (1974)]
It is a question based on a fact distinct
and separate from the crime but so
intimately connected with it that it
determines the guilt or innocence of the
accused [Ras v. Rasul, G.R. No. L-50411
(1980)]
Elements
a. The previously instituted civil action
involves an issue similar or
intimately related to the issue raised
in the subsequent criminal action.
b. The resolution of such issue
determines whether or not the
criminal action may proceed. [Sec. 7,
Rule 111]
Effect
Page 376 of 525
REMEDIAL LAW
Suspension of the criminal action [Sec.
6, Rule 111]
It does not prescribe the dismissal of the
criminal action [Yap v. Paras, G.R. No.
101236, (1992)]
Where filed
A petition for suspension of criminal
action based upon the pendency of a
prejudicial question in a civil action is
filed in either:
a. Office of the prosecutor (in the PI
stage);
b. Court conducting the PI; or
c. Court where criminal action has been
filed for trial, at any time before the
prosecution rests. [Sec. 6, Rule 111]
Rationale
To avoid two conflicting decisions in the
civil case and in the criminal case [Sy
Thiong Shiou v. Sy Chim, G.R. No.
174168 (2009)]
Example
The nullity and forgery of the prior deed
of sale is based on the very same facts
which would be necessarily determinative
of the accused’s guilt or innocence in the
case for estafa. If the first alleged sale is
void or fictitious, then there would have
been no double sale and the accused
would be declared innocent [Ras v.
Rasul, G.R. No. 50411 (1980)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Prejudicial question where administrative 3. If the amounts are not so alleged but
and criminal cases, but no civil case, any of these damages are
involved subsequently awarded by the court, the
In San Miguel Properties, Inc. v. Perez [G.R. filing fees based on the amount
No. 166836 (2013)] the SC held that the awarded shall constitute a first lien on
administrative case before the HLURB case the judgment. [Sec. 1, Rule 111]
raises a prejudicial question that sufficed to b. Estafa – offended party shall pay in full the
suspend the criminal proceedings since the filing fees based on the amount involved
action before the HLURB was “civil in nature” [See Sec. 20, Rule 141]
and could not be instituted elsewhere except in
the HLURB whose jurisdiction over the action
was exclusive and original. D. PRELIMINARY
INVESTIGATION
6. Rule on Filing Fees in Civil
Action Deemed Instituted 1. Nature of Right
With the Criminal Action
Definition
General rule: An inquiry or proceeding to determine
a. Actual Damages - no filing fees required whether there is sufficient ground to
b. Moral, exemplary, nominal, temperate engender a well-founded belief that a crime
damages: has been committed and the respondent is
1. If amount is specified in the probably guilty thereof, and should be held
complaint/information - the for trial [Sec. 1, Rule 112, as amended by
corresponding filing fees shall be paid A.M. No. 05-8-26-SC].
by the offended party upon the filing Nature
thereof in court. What it is What it is not
2. If amount is not specified in the 1. Merely Not a trial of the case
complaint/information, the filing fees inquisitorial, and on the merits” and
shall constitute a first lien on the it is often the only does not place the
judgment awarding such damages means of persons against
[Sec. 1, Rule 111] discovering the whom it is taken in
persons who jeopardy [Paderanga
Exceptions: may reasonably v. Drilon, G.R. No.
a. Violations for B.P.22 be charged with 96080 (1991)]
1. The offended party shall pay in full the a crime, to
filing fees based on the amount of the enable the
check involved, which shall be prosecutor to
considered as the actual damages prepare his
claimed. complaint or
2. Where the complaint or information information
also seeks to recover liquidated, moral, 2. This is a
nominal, temperate or exemplary substantive right.
damages, the offended party shall pay To deny the
additional filing fees based on the accused’s claim
amounts alleged therein. to a PI would be
to deprive him of

Page 377 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
the full measure
of his right to due
process [Duterte
v.
Sandiganbayan,
G.R. No. 130191
(1998)]
Who determines probable cause
This is an executive function that the courts
cannot interfere with in the absence of grave
abuse of discretion. [Salapuddin v. Court of
Appeals, G.R. No. 184681 (2013)]. A
prosecutor cannot then be compelled by
mandamus to file a case against an alleged
criminal, except when such prosecutor acted
with grave abuse of discretion amounting to
lack or excess of jurisdiction [Hegerty v. CA,
409 SCRA 285 (2003)]
Statutory basis of the right to
preliminary investigation
This is NOT a constitutional right; rather, the
right thereto is of statutory character and
may be invoked only when specifically
created by statute. It is not a fundamental
right and may be waived expressly or by
silence [Marinas v. Siochi, G.R. Nos. L-
25707 (1981)]
Waiver of right
The right to PI is a personal right which the
accused may waive either expressly or by
implication but at all times must be
unequivocal. The waiver, whether express or
implied, must be in a clear and unequivocal
manner [Larranaga v. CA. G.R. No. 130644
(1998)]
Mere failure of a defendant and/or his counsel
to appear during PI cannot be construed as a
waiver [Larranaga v. CA, G.R. No. 130644
(1998)]
When the accused waives his right to PI, the
fiscal may forthwith file the corresponding
information with the proper court [People v.
Perez, G.R. No. L-15231 (1960)]
Page 378 of 525
REMEDIAL LAW
An application for or admission to bail shall not
bar the accused from assailing the regularity or
questioning the absence of a PI of the charge
against him provided that he raises the
challenge before entering his plea [Sec. 26,
Rule 114]
When right deemed waived [W-FI-ANG]
a. Express Waiver or by silence [Pilapil v.
Sandiganbayan, G.R. No. 101978 (1993)]
b. Failure to Invoke it during arraignment
[People v. De Asis, G.R. No. 105581
(1993)]; and
c. Consenting to be Arraigned and entering a
plea of Not Guilty without invoking the right
to PI [People v. Bulosan, G.R. No. L-58404
(1988)]
The right cannot be raised for the first time on
appeal [Pilapil v. Sandiganbayan, G.R. No.
101978 (1993)]
When right not deemed waived
a. Failure to appear before the prosecutor
during the clarificatory hearing or when
summoned, when the right was invoked at
the start of the proceeding [Larranaga v.
CA, G.R. No. 130644 (1998)]; or
b. When the accused filed an application for
bail and was arraigned over his objection
and the accused demanded that PI be
conducted [Go v. CA, G.R. No. 101837
(1992)]
2. Purposes of Preliminary
Investigation
The following are the specific purposes of
preliminary investigation [IPA]:
a. To Inquire concerning the commission of a
crime and the connection of the accused
with it. This is so that:
i. the accused may be informed of the
nature and character of the crime
charged against him, and,
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

ii. if there is probable cause for believing c. Other officers as Election Code.
him guilty, that the State may take the may be [Sec. 2(6), Art.
necessary steps to bring him to trial; authorized by IX-C,
b. To Preserve the evidence and keep the law Constitution;
witnesses within the control of the State; [Sec. 2, Rule 112, Section 265,
and as amended by A.M. BP881
c. To determine the Amount of bail, if the No. 05-8-26-SC] (Omnibus
offense is bailable. [Callo-Claridad v. Election Code),
Esteban, G.R. No. 191567 (2013)] as amended by
Section 43,
3. Who May Conduct RA9369] [
Determination of Existence of b. Ombudsman:
over cases
Probable Cause public officers
and employees
Probable cause
[Section 15[1],
Probable cause pertains to facts and
RA6770
circumstances sufficient to support a well-
(Ombudsman
founded belief that a crime has been
Act of 1989)]
committed and the accused is probably guilty
c. Presidential
thereof. [Shu v. Dee, G.R. No. 182573 (2014)]
Commission on
Good
Quantum of Evidence
Governance with
The quantum of evidence now required in PI is
assistance of the
such evidence sufficient to “engender a well-
OSG: over
founded belief” as to the fact of the commission cases
of a crime and the respondent's probable guilt
investigated by
thereof. A PI is not the occasion for the full and
it) [EO14,
exhaustive display of the parties’ evidence. (1986)]
[Estrada v. Ombudsman, G.R. No. 212140
(2015)]
JUDICIAL DETERMINATION v. EXECUTIVE
Hearsay evidence is admissible during PI [De
DETERMINATION OF PROBABLE CAUSE
Lima v. Guerrero, G.R. No. 229781 (2017),
Executive Judicial
citing Estrada v. Ombudsman, G.R. No. Determination Determination
212140 (2015)] Ascertains To ascertain
whether a whether a
Who May Conduct Preliminary criminal case warrant of
Investigation must be filed in arrest should
As Provided by the As Provided by court. The be issued
Rules of Court Law public against the
a. Provincial/city a. COMELEC: over Nature prosecutor is accused [Sec.
prosecutors and all election given a broad 2, Art. III,
their assistants offenses discretion to Constitution]
b. National and punishable determine
regional state under the whether
prosecutors Omnibus probable cause
exists and to

Page 379 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

charge those within the jurisdiction of the Sandiganbayan,

whom he but also those within the jurisdiction of regular
believes to courts as well [Uy v. Sandiganbayan, G.R. No.
have 105965-70 (2001)]
committed the
crime. [People A person under PI by the Ombudsman is
v. Borje, Jr.,
entitled to file a motion for reconsideration of
G.R. No.
the adverse resolution, under Sec. 7 of the
170046 (2014)]
Rules of Procedure of the Ombudsman. To
deny the accused of his right to file a motion for
Made by Prosecutor Judge
whom
reconsideration would also deprive him of his
Determination Determination
right to a full preliminary investigation [Sales v.
of PC to hold a of PC for the Sandiganbayan, G.R. No. 143802 (2001)]
person for trial arrest of the
[Sec. 1, Rule accused Procedure for Preliminary Investigation
Purpose
112, as [Baltazar v. Filing of the complaint, which
amended by People, G.R. a. Shall state the address of the
A.M. No. 05-8- No. 174016 respondent
26-SC] (2008)] b. Shall be accompanied by the affidavits
Sufficient Set of facts and of the complainant and his witnesses,
ground to circumstances and other supporting documents to
engender a which would establish probable cause. The affidavits
well-founded lead a shall be subscribed and sworn to before
belief that a reasonably any prosecutor or government official
crime has been discreet and authorized to administer oath or if absent
committed, and prudent man to
or unavailable, before a notary public,
that the believe that the
each of whom must certify that he
respondent is offense
personally examined the affiants and
probably charged in the
that he is satisfied that they voluntarily
guilty thereof Information or
Standard and should be any offense executed and understood their
held for trial included affidavits.
[Sec. 1, Rule therein has c. Shall be in such number of copies as
112, as been there are respondents, plus 2 copies for
amended by committed by the official file
A.M. No. 05-8- the person [Sec. 3(a), Rule 112, as amended by A.M.
26-SC] sought to be No. 05-8-26-SC]
arrested ↓
[Baltazar v. Action of the investigating officer
People, G.R. a. Within 10 days after the filing of the
No. 174016 complaint, the investigating officer shall
(2008)] either:
1. Dismiss the complaint, if he finds no
Determination of Probable Cause made by ground to continue the investigation;
the Ombudsman or
The Ombudsman is authorized to conduct PI 2. Issue a subpoena to the respondent,
and to prosecute all criminal cases involving attaching the complaint and
public officers and employees, not only those supporting affidavits and documents

Page 380 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

[Sec. 3(b), Rule 112, as amended by Determination

A.M. No. 05-8-26-SC]. Within ten (10) days after the investigation,
the investigating officer shall determine
Respondent has the right to examine the whether or not there is sufficient ground to
evidence submitted by complainant which hold the respondent for trial [Sec. 3(f), Rule
he may not have furnished and to copy 112, as amended by A.M. No. 05-8-26-SC].
evidence at his expense [Sec. 3(b), Rule
112, as amended by A.M. No. 05-8-26-SC]. Note: Not receiving a copy of affidavits of a co-
↓ respondent does not deny a respondent his
Respondent’s counter-affidavit right to due process, since the Rules of
It must be made within ten (10) days from Procedure of the Office of the Ombudsman
receipt of subpoena with the complaint and only require that a respondent be furnished a
must comply with the same requirements as copy of the complainant’s affidavit and other
a complaint. Respondent is not allowed to supporting documents. [Estrada v.
file a motion to dismiss in lieu of counter- Ombudsman, G.R. No. 212140-41 (2015)]
affidavit [Sec. 3(c), Rule 112, as amended
by A.M. No. 05-8-26-SC]. 4. Resolution of the
Investigating Prosecutor
If the respondent cannot be subpoenaed, or
if subpoenaed, does not submit counter-
If he finds probable cause to hold respondent
affidavits within the ten (10) day period, the
for trial, he shall prepare the resolution and
investigating officer shall resolve the
information and shall certify under oath in the
complaint based on the evidence presented
information that [E-RG-I-CE]:
by the complainant [Sec. 3(d), Rule 112, as
a. He, or as shown by the record, an
amended by A.M. No. 05-8-26-SC] This
authorized officer has personally Examined
situation would have the effect of an ex-parte
the complainant and his witnesses;
investigation [Riano 210, 2016 Ed.].
b. There is Reasonable Ground to believe
↓
that a crime has been committed and the
Clarificatory hearing
accused is probably guilty thereof;
The investigating officer may set a hearing if
c. The accused was Informed of the
there are facts and issues to be clarified from
complaint and of the evidence against him;
a party or a witness. The parties can be
and
present at the hearing but without the right
d. He was given opportunity to submit
to examine or cross-examine. They may,
Controverting Evidence
however, submit to the investigating officer
questions which may be asked to the party
If he finds no probable cause, he shall
or witness concerned [Sec. 3(e), Rule 112,
recommend the dismissal of the complaint
as amended by A.M. No. 05-8-26-SC].
[Sec. 4, Rule 112, as amended by A.M. No. 05-
8-26-SC]
The hearing shall be held within 10 days
from submission of the counter-affidavits
Note: Notwithstanding the absence of a
and other documents or from the expiration
certification as to the holding of a PI (not the
of the period for their submission. It shall be
actual PI), the information is, nonetheless,
terminated within five (5) days [Sec. 3(e),
considered valid for the reason that such
Rule 112, as amended by A.M. No. 05-8-26-
certification is not an essential part of the
SC].
information itself and its absence cannot vitiate
↓

Page 381 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
it as such [Alvizo v. Sandiganbayan, GR. No.
101689 (1983)]
5. Review
Within five (5) days from the resolution, the
investigating officer shall forward the case to
the provincial/city/chief state prosecutor, or
to the Ombudsman or his deputy in cases
cognizable by the Sandiganbayan in the
exercise of its original jurisdiction.
↓ appealed resolution, unless the Secretary of
Within ten (10) days from receipt of the
resolution, the Prosecutor/Ombudsman
shall act on the resolution and shall
immediately inform the parties of such
action.
↓
No complaint/information may be filed or
dismissed by an investigating prosecutor
without the prior written authority or approval
of the provincial/city/chief state prosecutor,
or Ombudsman or his deputy.
Where the investigating prosecutor
recommends the dismissal of the complaint
but the prosecutor/Ombudsman or his
deputy disapproves his recommendation,
the latter, may by himself, file the information
or direct another assistant/state prosecutor
to do so without conducting a new PI.
↓ appealable administratively before the
If upon petition by a proper party under such
rules as the Department of Justice may
prescribe or motu proprio, the Secretary of
Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor
concerned either to file the corresponding
information without conducting another
preliminary investigation, or to dismiss or
move for dismissal of the complaint or
information with notice to the parties. The
same rule shall apply in preliminary
investigations conducted by the officers of
the Office of the Ombudsman.
Page 382 of 525
REMEDIAL LAW
[Sec. 4, Rule 112, as amended by A.M. No. 05-
8-26-SC]
Remedies to review the resolution of the
investigation officer
1. Filing an appeal with the investigating
officer.
Note: The appeal does not prevent the filing of
the corresponding information in court based
on the finding of probable cause in the
Justice directs otherwise, but the appellant and
the prosecutor shall see to it that, pending
resolution of the appeal, the proceedings in
court are held in abeyance [Section 9, DOJ
Circular No. 70 (2000)].
2. Petition for review to the SOJ, who may
review the resolutions of his subordinates
in criminal cases despite the information
being filed in court [Community Rural Bank
of Guimba v. Talavera, A.M. No. RTJ-05-
1909 (2005); see also DOJ Circ. No. 70].
Note: The party filing a petition for review is
allowed to file a motion for the suspension of
the arraignment [Sec. 11(c), Rule 116].
3. If the SOJ decision is adverse to the
appealing party, such decision is
Office of the President and the decision of
the latter may be appealed before the CA
pursuant to Rule 43 [De Ocampo v. Sec. of
Justice, G.R. No. 147932 (2006)]
Note: Under Memorandum Circular No. 58
(2003), no appeals from or petitions for review
of decisions/orders/resolutions of the Secretary
of Justice on preliminary investigations shall be
entertained by the Office of the President,
except those involving offenses punishable by
reclusion perpetua to death [Angeles v. Gaite,
G.R. No. 176596 (2011)].
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

4. The resolution of the Secretary of Justice When warrant of arrest shall not issue
may also be reviewed by the Court of A warrant of arrest shall not issue if the
Appeals through a petition for certiorari accused is already under detention pursuant to
under Rule 65 of the Rules of Court, solely a warrant issued by the municipal trial court or
on the ground that the SOJ committed if the complaint or information was filed
grave abuse of discretion amounting to pursuant to Sec. 6, Rule 112 (When accused
lack of jurisdiction [Argovan v. San Miguel lawfully arrested without warrant) or is for an
Corporation, G.R. No. 188767, (2013)]. offense penalized by fine only. The court shall
then proceed in the exercise of its original
5. In criminal cases, the ruling of the jurisdiction [Sec. 5(c), Rule 112, as amended
Ombudsman shall be elevated to the by A.M. No. 05-8-26-SC]
Supreme Court by way of Rule 65, solely
under the ground of grave abuse of 7. Cases Not Requiring
discretion [Villanueva v. Ople, G.R. No.
Preliminary Investigation nor
165125 (2005)].
Covered By the Rule on
6. When Warrant of Arrest May Summary Procedure
Issue If the complaint is filed directly with the
prosecutor involving an offense punishable by
The PI conducted by the judge which is
an imprisonment of less than 4 years, 2
properly called preliminary examination is for
months and 1 day, the procedure outlined in
the determination of probable cause for the
Sec. 3(a), Rule 112, as amended by A.M. No.
issuance of warrant of arrest [P/Supt. Cruz v.
05-8-26-SC shall be observed. The prosecutor
Judge Areola, A.M. No. RTJ-01-1642 (2002)]
shall act on the complaint based on the
affidavits and other supporting documents
When the RTC/MTC may issue a Warrant of
submitted by the complainant within ten (10)
Arrest
days from its filing [Sec. 8(a), Rule 112, as
a. Within 10 days from the filing of the
amended by A.M. No. 05-8-26-SC]
complaint or information, the judge shall
personally evaluate the resolution of the
Sec. 3(a), Rule 112, as amended by A.M. No.
prosecutor and its supporting evidence.
05-8-26-SC states that:
b. He may immediately dismiss the case if the
a. The complaint shall state the address of
evidence on record clearly fails to establish
the respondent and shall be accompanied
probable cause.
by affidavits of the complainant and his
c. If he finds probable cause, he shall issue
witnesses, as well as other supporting
a warrant of arrest or a commitment order
documents to establish probable cause.
when the complaint or information was filed
b. They shall be in such number of copies as
pursuant to Sec. 7 of Rule 112, as
there are respondents, plus 2 copies for the
amended by A.M. No. 05-8-26-SC.
official file. The affidavits shall be
d. In case of doubt on the existence of
subscribed and sworn to before any
probable cause, the judge may order the
prosecutor or government official
prosecutor to present additional evidence
authorized to administer oath, or, in their
within 5 days from notice and the issue
absence or unavailability, before a notary
must be resolved by the court within 30
public, each of whom must certify that he
days from the filing of the complaint or
personally examined the affiants and that
information. [Sec. 5(a), Rule 112, as
amended by A.M. No. 05-8-26-SC]

Page 383 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
he is satisfied that they voluntarily
executed and understood their affidavits.
If the complaint or information is filed with
the MTC/MCTC for an offense covered by
this section
a. The procedure in Sec. 3(a) quoted above
shall be observed.
b. If within 10 days after the filing of the
complaint of information, the judge finds no
probable cause after personally evaluating
the evidence, or after personally examining
in writing and under oath the complainant
and his witnesses in the form of searching
questions and answers, he shall dismiss
the same.
c. He may, however, require the submission
of additional evidence, within 10 days from
notice, to determine further the existence of
probable cause.
d. If the judge still finds no probable cause
despite the additional evidence, he shall,
within 10 days from its submission or
expiration of said period, dismiss the case.
e. When he finds probable cause, he shall
issue a warrant of arrest, or a commitment
order if the accused had already been
arrested, and hold him for trial.
f. However, if the judge is satisfied that there
is no necessity for placing the accused
under custody, he may issue summons
instead of a warrant of arrest.
[Sec. 8(b), Rule 112, as amended by A.M. No.
05-8-26-SC]
8. Remedies of Accused If There
Was No Preliminary
Investigation
Effect of denial of right
The absence of a PI does not impair the validity
of an information or render it defective. Neither
does it affect the jurisdiction of the court or
constitute a ground for quashing the
information [Villaflor v. Vivar, G.R. No. 134744
(2001)]
Page 384 of 525
REMEDIAL LAW
Remedies of the accused if there was no PI
a. Call the attention of the court to the
deprivation of the required PI before
entering his plea [Larranaga v. CA. G.R.
No. 130644 (1998)]
b. After the filing of the complaint/information
in court without a PI, the accused may
within 5 days from the time he learns of its
filing, ask for a PI with the same right to
adduce evidence in his defense as
provided in Rule 112 [Sec. 6, Rule 112, as
amended by A.M. No. 05-8-26-SC]
c. File a certiorari, if refused and such refusal
is tainted with grave abuse of discretion
[Riano 186, 2016 Ed.]
The trial court, instead of dismissing the
information, should hold in abeyance the
proceedings and order the public prosecutor to
conduct a PI [Villaflor v. Vivar, G.R. No. 134744
(2001)]
The right cannot be raised for the first time on
appeal [Pilapil v. Sandiganbayan, G.R. No.
101978 (1993)]
Restraining preliminary investigation
General rule: The power of the Fiscal to
investigate crimes committed within his
jurisdiction will, ordinarily, not be restrained.
Exceptions: Extreme cases may exist where
relief in equity may be availed of to stop a
purported enforcement of a criminal law where
it is necessary:
a. For the orderly administration of justice;
b. To prevent the use of the strong arm of the
law in an oppressive and vindictive
manner;
c. To avoid multiplicity of actions;
d. Since there is a prejudicial question which
is sub judice
e. When the acts of the officer are without or
in excess of authority
f. Since double jeopardy is clearly apparent
g. When the court has no jurisdiction over the
offense
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

h. When the case of one of persecution rather presence of his

than prosecution counsel;
i. When the charges are manifestly false and 2. he may apply for
motivated by the lust for vengeance bail;
j. When there is clearly no prima facie case 3. the investigation
against the accused and a motion to quash must be
on that ground has been denied terminated within
k. To afford adequate protection to 15 days from its
constitutional rights [Hernandez v. Albano, inception
G.R. No. L-19272 (1967)] [Sec. 6, Rule 112, as amended by A.M. No. 05-
l. In proper cases, because the statute relied 8-26-SC]
upon is unconstitutional, or was “held
invalid” [Ladlad v. Velasco, G.R. No. Procedure
172070-72 (2007)] An inquest is considered commenced upon
receipt by the Inquest officer from the law
9. Inquest enforcement authorities of the
complaint/referral documents which should
Inquest include:
Is an informal and summary investigation 1. Affidavit of arrest, investigation report,
conducted by a public prosecutor in criminal statement of the complainant and
cases involving persons arrested and detained witnesses, all of which must be subscribed
without the benefit of a warrant of arrest issued and sworn to before him;
by the court for the purpose of determining 2. Other supporting evidence gathered by the
whether said persons should remain under police in the course of the latter's
custody and correspondingly be charged in investigation of the criminal incident
court [Leviste v. Alameda, G.R. No. 182677 involving the arrested or detained person.
(2010), citing Sec. 1, DOJ Circ. No. 61 (1993)] [Sec. 3, DOJ Circ. No. 61 (1993)]

In the absence of an inquest prosecutor, the The inquest proceedings must be terminated
offended party or peace officer may directly file within the period prescribed under the
the complaint in court [Sec. 6, Rule 112, as provisions of Art. 125, RPC. [Sec. 3, DOJ Circ.
amended by A.M. No. 05-8-26-SC] No. 61 (1993)]

Remedy of a person arrested without a Crime or offense Period to deliver

warrant punishable by: person arrested to
After the filing of proper judicial
Before the authorities:
the complaint but
complaint or Light penalties or 12 hours
before
information is filed
arraignment their equivalent
The accused may ask The accused may Correctional 18 hours
for PI. ask for PI within 5 penalties or their
Requisites: days after he learns equivalent
1. he must sign a of the filing of the Afflictive or capital 36 hours
waiver of the complaint or penalties or their
provisions of information equivalent
Article 125 of
RPC, in the

Page 385 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

General rule: No peace officer or person has

E. ARREST the power or authority to arrest anyone without
a warrant except in those cases expressly
authorized by law [Umil v. Ramos, G.R. No.
81567 (1991)]
1. Arrest, How Made
Exceptions:
Definition
a. In flagrante delicto [Sec. 5(a), Rule 113]
Arrest is the taking of a person into custody in
b. Hot pursuit arrest [Sec. 5(b), Rule 113]
order that he may be bound to answer for the
c. Arrest of escaped prisoner [Sec. 5(c), Rule
commission of an offense [Sec. 1, Rule 113]
113]
d. Other lawful warrantless arrests
How made
1. If a person lawfully arrested escapes or
a. by actual restraint of a person to be
is rescued, any person may
arrested;
immediately pursue or retake him
b. by his submission to the custody of the
without a warrant at any time and in any
person making the arrest [Sec. 2, 1st par.,
place within the Philippines [Sec. 13,
Rule 113]
Rule 113]
2. For the purpose of surrendering the
Application of actual force, manual touching of
accused, the bondsmen may arrest
the body, physical restraint or a formal
him or, upon written authority endorsed
declaration of arrest is not required. It is
on a certified copy of the undertaking,
enough that there be an intent on the part of
cause him to be arrested by a police
one of the parties to arrest the other and an
officer or any other person of suitable
intent on the part of the other to submit, under
age and discretion [Sec. 23, Rule 114]
the belief and impression that submission is
3. An accused released on bail may be re-
necessary [Sanchez v. Demetriou, G.R. No.
arrested without the necessity of a
111771 (1993)]
warrant if he attempts to depart from
the Philippines without permission of
No violence or unnecessary force shall be used
the court where the case is pending
in making an arrest [Sec. 2, 2nd par., Rule 113]
[Sec. 23, Rule 114]
An arrest may be made on any day and at any
Note: A legitimate warrantless arrest
time of the day or night [Sec. 6, Rule 113]
necessarily includes the authority to validly
search and seize from the offender (1)
2. Arrest without Warrant, When dangerous weapons, and (2) those that may be
Lawful used as proof of the commission of an offense
[People v. Montilla, G.R. No. 123872, (1998)]

Page 386 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

In flagrante delicto Hot pursuit arrest Arrest of escaped prisoner

arrest
A peace officer or a A peace officer or a private
private person may, person may, without
without warrant, arrest warrant, arrest a person
a person when, in his when an offense has just
presence, the person been committed and the
to be arrested: officer or private person has
1. Has committed probable cause to believe,
2. Is actually based on personal
committing, or knowledge of facts or
3. Is attempting to circumstances that the
commit an offense person to be arrested has
Definition
[Sec. 5(a), Rule committed it [Sec. 5(b),
113] Rule 113]
A peace officer or a private
person may, without warrant,
arrest a person when the
person to be arrested is a
prisoner who has escaped
1. from a penal
establishment or place
where he is serving final
judgment or temporarily
confined while his case is
pending; or
2. While being transferred
from one confinement to
another [Sec. 5(c), Rule
113]

Escapee may be immediately

pursued or re-arrested
without a warrant at any time
and in any place within the
Philippines [Sec. 13, Rule
113]
[OA-PVAO] [C-PK] N/A
1. The person to be 1. An offense has just
arrested must been Committed.
execute an Overt - There must be a
Act indicating that large measure of
he has just immediacy
committed, is between the time the
actually offense was
committing, or is committed and the
attempting to time of the arrest. If
Requisites
commit a crime, there was an
and appreciable lapse of
2. Such overt act is time between the
done in the arrest and the
Presence or within commission of the
the View of the crime, a warrant of
Arresting Officer arrest must be
[Zalameda v. secured [People v.
People, G.R. No. del Rosario, G.R.
183656 (2009); No. 127755 (1999);

Page 387 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

People v. Laguio, People v. Agojo ,

G.R. No. 128587 G.R. No. 181318
(2007)]. (2009)]; and
2. The person making the
“In his presence” arrest has probable
means: cause to believe, based
1. He sees the on Personal
offense, even Knowledge of facts and
though at a circumstances, that the
distance, or person to be arrested
2. He hears the has committed it.
disturbances
created by the
offense and
proceeds at once
to the scene
[People v.
Evaristo, G.R. No.
93828 (1992)]
“Reliable information” Personal knowledge does Rationale
alone, absent any not require actual At the time of arrest, the
overt act indicative of a presence at the scene escapee is in continuous
felonious enterprise in while a crime was being commission of a crime (i.e.,
the presence and committed; it is enough that evasion of service of
within the view of the evidence of the recent sentence). [Parulan v.
arresting officers, are commission of the crime is Director of Prisons, G.R. No.
not sufficient to patent and the police officer L-28519 (1968)]
constitute probable has probable cause to
Notes
cause that would justify believe based on personal
an in flagrante delicto knowledge of facts or
arrest [People v. circumstances, that the
Molina, G.R. No. person to be arrested has
133917 (2001)] recently committed the
crime [Pestilos v.
Generoso, G.R. No.
182601 (2014)]

Where a warrantless arrest is made under the
in flagrante and hot pursuit exceptions, the
person arrested without a warrant shall be
forthwith delivered to the nearest police station
or jail and shall be proceeded against in
accordance with Sec. 7 of Rule 112 [Sec. 5,
2nd par., Rule 113]
General rule: PI is required to be conducted
before a complaint/information is filed for an
offense where the penalty prescribed by law is

Page 388 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

at least 4 years, 2 months and 1 day, without

regard to the fine [Sec. 1, Rule 112, , as
amended by A.M. No. 05-8-26-SC]

Exception: When a person is lawfully arrested

without a warrant involving an offense that
requires a PI, a complaint/information may be
filed without conducting the PI if the necessary
inquest is conducted.

RULES ON ILLEGALITY OF ARREST

Effect
The legality of the arrest affects only the
jurisdiction of the court over the person of the
accused [People v. Nuevas, G.R. No. 170233
(2007)]

Waiver
Any objection involving the arrest or the
procedure in the court’s acquisition of
jurisdiction over the person of an accused must
be made before he enters his plea; otherwise
the objection is deemed waived. Accordingly,
an application for or admission to bail shall
not bar the accused from challenging the
validity of his arrest or the legality of the warrant
issued, provided that it was raised before he
enters his plea. [Sec. 26, Rule 114]

A waiver of the right to question an illegal

warrantless arrest does not also mean a waiver
of the inadmissibility of evidence seized during
an illegal warrantless arrest [People v. Nuevas,
G.R. No. 170233 (2007)]

When invalid arrest is cured

1. When the accused voluntarily submits to
the jurisdiction of the trial court [Dolera v.
People, G.R. No. 180693 (2009); People v.
Alunday, G.R. No. 181546 (2008)]
2. By the filing of an information in court and
the subsequent issuance by the judge of a
warrant of arrest [Sanchez v. Demetriou,
G.R. No. 111771 (1993)]

Page 389 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

3. Method of Arrest
By Officer without By Private Person
By officer with Warrant
Warrant (Citizen’s Arrest)
1. Execute the warrant General rule: The 1. The private person
within 10 days from its officer shall inform the shall inform the
receipt. In case of his person to be arrested person to be arrested
failure to execute the of: of the intention to
warrant, the head of the 1. His authority; and arrest him and the
office to whom the 2. The cause of the cause of the arrest
warrant was issued shall arrest except in the same
state the reasons cases as those for
therefor. [Sec. 4, Rule Exceptions: arrest by an officer
113] 1. When the person to without a warrant
2. General Rule: The be arrested is [Sec. 9, Rule 113]
officer shall inform the engaged in the 2. The private person
person to be arrested of commission of the must deliver the
the cause of the arrest offense; arrested person to
and the fact that a 2. When he is pursued the nearest police
warrant has been issued immediately after station or jail, and he
for his arrest. its commission; shall be proceeded
3. When he has against in
Exception: This does not escaped, flees or accordance with
Duties of the apply: forcibly resists Sec. 7, Rule 112
Arresting a. When the person to be before the officer [Sec. 5, Rule 113]
Person arrested flees; has the opportunity Otherwise, the
b. When he forcibly resists to so inform him; or private person may
before the officer has 4. When the giving of be held liable for
opportunity to so inform such information illegal detention [Art.
him; will imperil the 125, RPC]
c. When the giving of such arrest.
information will imperil [Sec. 8, Rule 113]
the arrest [Sec. 7, Rule
113]

3. The officer need not have

the warrant in his
possession at the time of
the arrest but after the
arrest, if the person
arrested so requires, the
warrant shall be shown to
him as soon as
practicable [Sec. 7, Rule
113]

Page 390 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

4. Arrest the accused and

deliver him to the nearest
police station or jail
without unnecessary
delay [Sec. 3, Rule 113];
5. No violence or
unnecessary force shall
be used in making an
arrest. The person
arrested shall not be
subject to a greater
restraint than is
necessary for his
detention [Sec. 2, 2nd
par., Rule 113].
1. To orally summon as many persons as he deems N/A
necessary to assist him in effecting the arrest [Sec.
10, Rule 113]
2. To break into building or enclosure when the
following concur:
a. The person to be arrested is or is reasonably
believed to be in said building;
Rights of the b. He has announced his authority and purpose of
arresting entering therein; and
Officer c. He has requested and been denied admittance.
[Sec. 11, Rule 113]
3. To break out from the building/enclosure when
necessary to liberate himself [Sec. 12, Rule 113];
4. To search the person arrested for dangerous
weapons or anything which may have been used or
constitute proof in the commission of an offense
without a warrant [Sec. 13, Rule 126]

Page 391 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
4. Requisites of a Valid Warrant
of Arrest
Essential requisites
The warrant must:
a. Be issued upon probable cause
determined personally by the judge after
examination under oath or affirmation of
the complainant and the witnesses he may
produce; and
b. Particularly describe the person to be
arrested
[Sec. 2, Art. III, Constitution]
When Issued
A judge issues a warrant of arrest upon the
filing of the information by the public prosecutor
and after personal evaluation by the judge of
the prosecutor’s resolution and supporting
evidence [Sec. 5(a), Rule 112, as amended by
A.M. No. 05-8-26-SC]
The judge does not have to personally examine
the complainant and his witnesses.
Established doctrine provides that it is
sufficient for the fiscal to provide supporting
documents regarding the existence of probable
cause:
a. If the judge finds probable cause, he shall
issue a warrant of arrest, or
b. If he finds no probable cause, he may
disregard the fiscal’s report and require the
submission of supporting affidavits of
witnesses
[People v. Gray, G.R. No. 180109 (2010); AAA
v. Carbonell, G.R. No. 171465 (2007)]
When warrant of arrest is not necessary
A warrant of arrest shall not issue
a. if the accused is already under detention
pursuant to a warrant issued by the
municipal trial court in accordance with
Sec. 5(b) of Rule 112; or
b. if the complaint or information
Page 392 of 525
REMEDIAL LAW
1. was filed pursuant to Sec. 6 of Rule 112
or
2. is for an offense penalized by fine only
[Sec. 5(c), Rule 112, as amended by
A.M. No. 05-8-26-SC]
Note: If complaint or information is filed with the
MTC judge, and the judge finds probable
cause, he shall issue a warrant of arrest, or a
commitment order if the accused had already
been arrested. However, if the judge is
satisfied that there is no necessity for placing
the accused under custody, he may issue
summons instead of a warrant of arrest [Sec.
8(b), Rule 112, as amended by A.M. No. 05-8-
26-SC]
5. Determination of Probable
Cause For Issuance of
Warrant of Arrest
Probable cause, in connection with the
issuance of a warrant of arrest, assumes the
existence of facts and circumstances that
would lead a reasonably discreet and prudent
man to believe that a crime has been
committed and that it was likely committed by
the person sought to be arrested [People v.
Tan, G.R. No. 182310 (2009)] [See D.3, supra]
F. BAIL
1. Nature
Definition
Bail is the security given for the release of a
person in custody of the law, furnished by him
or a bondsman, to guarantee his appearance
before any court as required under the
conditions hereinafter specified [Sec. 1, Rule
114]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Purpose 2. When a Matter of Right;

a. To relieve an accused from imprisonment
Exceptions
until his conviction and yet secure his
appearance at the trial [People v. Hon.
Bail is a matter of right
Donato, G.R. No. 79269 (2011) & Enrile v.
a. Before or after conviction, but pending
Sandiganbayan, G.R. No. 213847 (2016)]
appeal, by the first-level courts;
b. To honor the presumption of innocence
b. Before conviction by RTC of an offense not
until his guilt is proven beyond reasonable
punishable by death, reclusion perpetua, or
doubt [Sec. 14, Art. III, Constitution]; and
life imprisonment
c. To enable him to prepare his defense
[Sec. 4, Rule 114]
without being subject to punishment prior
to conviction [Cortes v. Judge Catral, A.M.
Bail on offenses where minors are accused
No. RTJ-97-1387 (1997)]
For purposes of recommending the amount of
bail, the privileged mitigating circumstance of
A person is allowed to petition for bail as soon
minority shall be considered [Sec. 34, R.A
as he is deprived of his liberty by virtue of his
9344]
arrest or voluntary surrender. An accused need
not wait for his arraignment before filing a
Where a child is detained, the court shall order
petition for bail [Serapio v. Sandiganbayan,
a. the release of the minor on recognizance to
G.R. No. 148468 (2003)]
his/her parents and other suitable person;
b. the release of the child in conflict with the
Requirement of custody
law on bail; or
General rule: Custody of the law is required
c. the transfer of the minor to a youth
before the court can act on an application for
detention home/youth rehabilitation center
bail [Miranda v. Tuliao, G.R. No. 158763
(2006)]
Exception: When the offense involved is a
capital offense, admission to bail may only be
Exceptions: Custody is not required in cases
denied when evidence of guilt is strong [Sec. 5,
of witnesses posting bail:
Rule 114]
a. When bail is required to guarantee the
appearance of a material witness [Sec. 14,
Capital offense
Rule 119];
A capital offense is an offense which under the
b. When bail is required to guarantee the
law existing at the time of commission and of
appearance of a prosecution witness in
the application for admission to bail is
cases where there is substitution of the
punishable by death [Sec. 6, Rule 114]
information [Sec. 14, Rule 110]
The capital nature of the offense is determined
Forms of Bail
by the penalty prescribed by law and not the
1. Corporate surety
one actually imposed [Riano, 335, 2016 Ed.,
2. Property bond
citing Bravo v. De Borja, G.R. No. L-65228
3. Cash deposit
(1985)]
4. Recognizance
Note: R.A. 9346 (An Act Prohibiting the
Imposition of Death Penalty in the Philippines)
enacted on June 24, 2006 (which repealed

Page 393 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
R.A. 8177 and R.A. 7659) prohibited the
imposition of the death penalty.
Generally not applicable to extradition
proceedings
General rule: Right to bail is available only in
criminal proceedings and does not apply to
extradition proceedings because extradition
courts do not render judgments of conviction or
acquittal [Gov. of USA v. Purganan and
Jimenez, G.R. No. 148571 (2002)]
Exception: Only upon clear and convincing
evidence:
a. That once granted, the applicant will not be
flight risk or will not pose danger to the
community; and
b. That there exists special humanitarian and
compelling circumstances [Gov. of USA v.
Purganan and Jimenez, G.R. No. 148571
(2002)]
Exception to the exception: When the
accused is a minor, he is entitled to bail
regardless of whether the evidence of guilt is
strong
Note: Bail is a matter of discretion in extradition
proceedings [Govt. of HK Special
Administrative Region v. Olalia, G.R. No.
153675 (2007)]
When not available
Right to bail is not available:
a. After a judgment of conviction has become
final; if he applied for probation before
finality, he may be allowed temporary
liberty under his bail;
b. After the accused has commenced to serve
his sentence [Sec. 24, Rule 114]
c. To military personnel accused under
general courts martial [Comendador v. de
Villa, G.R. No. 93177 (1991)]
Page 394 of 525
REMEDIAL LAW
3. When a Matter of Discretion
Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is
discretionary [Sec. 5, Rule 114]
The application for bail may be filed in and
acted upon by the RTC despite the filing of
notice of appeal, provided that it has not
transmitted the original record to the appellate
court [Sec. 5, Rule 114]
If the RTC decision changed the nature of the
offense from non-bailable to bailable, the
application for bail can only be filed with and
resolved only by the appellate court [Sec. 5,
Rule 114]
If the conviction by the trial court is for a capital
offense, the accused convicted of a capital
offense is no longer entitled to bail, and can
only be released when the conviction is
reversed by the appellate court [Sec. 13, Article
III, Constitution]
If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused
shall be denied bail or his bail shall be
cancelled upon showing by the prosecution,
with notice to the accused, of any of the
following [Sec. 5, Rule 114]:
a. Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused
b. The accused previously escaped from
legal confinement, evaded sentence or
violated bail conditions without valid
justification
c. Commission of offense while under
probation, parole or conditional pardon
d. Probability of flight;
e. Undue risk of the commission of another
crime during the pendency of the appeal
[Sec. 5, Rule 114]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Upon conviction of the RTC, the bail posted
earlier as a matter of right loses its force and
the accused must file a new and separate
petition for bail.
In deportation proceedings, bail is
discretionary upon the Commissioner of
Immigration and Deportation [Harvey v.
Defensor-Santiago, G.R. No. 82544 (1990)]
Note: In Enrile v. People [G.R. No. 213847
(2015)], the Court ruled that an accused should
be granted bail if it is shown that: (1) the
detainee will not be a flight risk or a danger to
the community; and (2) there exist special,
humanitarian, and compelling circumstances.
The SC further explained that bail for the
provisional liberty of the accused, regardless of
the crime charged should be allowed
independently of the merits charged, provided
his continued incarceration is injurious to his
health and endanger his life.

COURT Before Conviction After Conviction Where to File

Pending Action

MTC (before the

MTC Right Right records are elevated;
else, RTC)
Discretionary if the penalty
imposed by the trial court
does not exceed 6 years.
However, if the penalty RTC (before the
Non- imposed exceeds 6 years or records are elevated;
Right
capital if the prosecution proves that except if offense is
RTC the circumstances downgraded, then CA
enumerated in Sec. 5, Rule
114 exist, bail will be denied
or cancelled.
Discretionary, when
Capital evidence of guilt is Cannot be granted bail N/A
not strong

Page 395 of 525

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

4. Hearing of Application for Bail the Philippines, or otherwise unable to testify

[Sec. 8, Rule 114]
in Capital Offenses
Where application for bail is filed
In general
General rule: The application may be filed with
At the hearing of an application for bail filed by
the court where the case is pending.
a person in custody for the commission of an
offense punishable by reclusion perpetua or life
Exceptions:
imprisonment, the prosecution has the
a. If the judge of the court where the case is
burden of showing that evidence of guilt is
pending is absent or unavailable, the
strong [Sec. 8, Rule 114]
application may be filed with any
RTC/MTC/MeTC/MCTC judge in the
Evidence of guilt in the Constitution and the
province, city or municipality;
Rules refers to a finding of innocence or
b. Where the accused is arrested in a \the
culpability, regardless of the modifying
case is pending, the application may be
circumstances [Bravo v. De Borja, G.R. No. L-
filed with any RTC of the said place, or, if
65228 (1985)]
no judge is available, then with any
MeTC/MTC/MCTC judge in the said place.
Duties of judge hearing the petition for bail
c. When a person is in custody but not yet
when capital offenses are involved
charged, he may apply with any court in the
a. In all cases whether bail is a matter of right
province or city/municipality where he is
or discretion, notify the prosecutor of the
held
hearing of the application for bail or require
[Sec. 17, Rule 114, as amended by A.M. No.
him to submit his recommendation [Sec.
05-8-26-SC]
18, Rule 114]
b. Where bail is a matter of discretion,
Note: Where the grant of bail is a matter of
conduct a hearing of the application for bail
discretion, or the accused seeks to be released
regardless of whether or not the
on recognizance, the application may only be
prosecution refuses to present evidence to
filed in the court where the case is pending, on
show that the guilt of the accused is strong
trial, or appeal [Sec. 17, Rule 114, as amended
for the purpose of enabling the court to
by A.M. No. 05-8-26-SC]
exercise its sound discretion [Sec. 7-8,
Rule 114]
When bail is filed with a court other than where
c. Decide whether the guilt of the accused is
the case is pending, the judge who accepted
strong based on the summary of evidence
the bail shall forward it, together with the order
of the prosecution
of release and other supporting papers, to the
d. If the guilt of the accused is not strong,
court where the case is pending, which may,
discharge the accused upon the approval
for good reason, require a different one to be
of the bail bond [Sec. 19, Rule 114].
filed [Sec. 19, Rule 114]
Otherwise, the petition should be denied.
[Gacal v. Infante, A.M. No. RTJ- 04-1845
(2011)] 5. Guidelines in Fixing Amount
of Bail
Note: Evidence presented during the bail
hearing are automatically reproduced at the The considerations are primarily, but not
trial, but upon motion of either party, the court limited, to the following factors:
may recall any witness for additional a. Financial ability of the accused
examination unless the latter is dead, outside b. Nature and circumstances of the offense

Page 396 of 525

U.P. LAW BOC CRIMINAL PROCEDURE
c. Penalty for the offense charged
d. Character and reputation of the accused
e. Age and health of the accused
f. Weight of the evidence against the
accused
g. Probability of the accused appearing at the
trial
h. Forfeiture of other bail
i. Fact that accused was a fugitive from
justice when arrested
j. Pendency of other cases where the
accused is on bail
[Sec. 9, Rule 114]
The amount should be high enough to assure
the presence of the accused when required but
no higher than is reasonably calculated to fulfill
this purpose. [Yap Jr. v. CA, G.R. No. 141529
(2001)]
6. When Bail Not Required
When bail is not required
a. When a person has been in custody for a
period equal to or more than the possible
maximum imprisonment of the offense
charged
b. If the maximum penalty is destierro, he
shall be released after 30 days of
preventive imprisonment [Sec. 16, Rule
114].
c. In cases where a person is charged with
violation of a municipal/city ordinance, a
light felony and/or criminal offense, the
penalty of which is not higher than 6
months imprisonment and/or a fine of
P2,000, or both, where it is established that
he is unable to post the required cash or
bail bond [Sec. 1, R.A. 6036]. NOTE: The
title of R.A. 6036 reads “arresto mayor”
instead of “6 months”.
When bail is nonetheless required
a. When accused was caught committing the
offense in flagrante;
b. When accused confesses to the
commission of the offense unless he later
Page 397 of 525
REMEDIAL LAW
repudiates the same in a sworn statement
or in open court as having been extracted
through force or intimidation;
c. When accused is found to have previously
escaped legal confinement, evaded
sentence, or jumped bail;
d. When accused is found to have violated
Section 2, R.A. 6036, which provides that
the violation of the accused of the sworn
statement (required instead of bail) binding
himself, pending final decision of his case,
to report to the Clerk of the Court hearing
his case periodically every two weeks shall
justify the court to order his immediate
arrest, if the failure of the accused to report
is not justified;
e. When accused is a recidivist or habitual
delinquent or has been previously
convicted for an offense to which the
law/ordinance attaches an equal/greater
penalty or for two/more offenses to which it
attaches a lighter penalty
f. When accused committed the offense
while on parole or under conditional
pardon;
g. When accused has previously been
pardoned for violation of municipal/city
ordinance for at least two times [Sec. 1,
R.A. 6036].
7. Increase or Reduction of Bail
After the accused is admitted to bail, the court
may, upon good cause, increase or decrease
the amount [Sec. 20, Rule 114]
Increased bail
The accused may be committed to custody if
he does not give bail in the increased amount
within a reasonable period [Sec. 20, Rule 114]
Reduced bail
A person in custody for a period equal to or
more than the minimum of the principal penalty
prescribed for the offense charged may be
released on a reduced bond [Sec. 16, Rule
114]
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)]
Page 401 of 525
REMEDIAL LAW
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
REMEDIAL LAW
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
REMEDIAL LAW
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
REMEDIAL LAW
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
double jeopardy will jeopardy
ii. Dismissal without express
jeopardy not always always
consent
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
REMEDIAL LAW
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)]

Page 410 of 525

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
REMEDIAL LAW
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
REMEDIAL LAW
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
REMEDIAL LAW
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

Page 428 of 525

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

Page 429 of 525

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;

Page 431 of 525

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
REMEDIAL LAW
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
REMEDIAL LAW
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
REMEDIAL LAW
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
REMEDIAL LAW
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
REMEDIAL LAW
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
Page 448 of 525
REMEDIAL LAW
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
Page 449 of 525
REMEDIAL LAW
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).
Page 450 of 525
REMEDIAL LAW
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
Page 451 of 525
REMEDIAL LAW
[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)]

Page 452 of 525