Module TECHNICAL ENGLISH 2: Legal Forms

CHAPTER 6

Application for Search Warrant, Complaint,

and Deposition of Witness

At the end of this module, the learner will be able to:

 Understand the Modes of Discovery and

Perpetuation of Testimony
 Apply on where to file a search warrant

MODES OF DISCOVERY

Deposition is one of the modes

of discovery available to the parties to
a case as a means of informing
themselves of all the relevant facts.
Generally, they are not meant to be a
substitute for the actual testimony in
open court of a party or witness, on
the ground that it is hearsay since the
party against whom it is offered has no
opportunity to cross-examine the
deponent at the time his testimony is
offered at the trial or hearing. But
there are also instances when depositions may be used without the deponent
being called to the witness stand.

No. Section 1, Rule 23 of the Rules of Court clearly provides that the
testimony of any person may be taken by deposition upon oral examination or
written interrogatories at the instance of any party. They are allowed as a
departure from the accepted and usual judicial proceeding of examining
witnesses in open court where their demeanor could be observed by the trial

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judge; and the procedure is not on that account rendered illegal nor is the
deposition thereby taken, inadmissible.

Such deposition may be used by any party for any purpose if the court
finds (1) that the witness is dead; or (2) that the witness is out of the province
or at greater distance than 100 kilometers from the place of trial and hearing, or
is out of the Philippines, unless it appears that his absence was procured by the
party offering the deposition; or (3) that the witness is unable to attend to testify
because of age, sickness or infirmity or imprisonment; or (4) that the party
offering the deposition has been unable to procure the attendance of the witness
by subpoena; or (5) that such exceptional circumstances exist allowing the use
of the deposition as to make it desirable in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally in open
court (Section 4, Rule 23, Rules of Court).

In any event, the admissibility of the deposition does not preclude the
determination of its probative value at the appropriate time. The admissibility of
evidence should not be equated with weight of evidence. The admissibility of
evidence depends on its relevance and competence, while the weight of
evidence pertains to evidence already admitted and its tendency to convince and
persuade (San Luis vs. Rojas etc. G.R. 159127, March 3, 2008).

PERPETUATION OF TESTIMONY

A. To perpetuate is to preserve for future use. Rule 134 governs the

procedure on how a party or witness may preserve his testimony because
the person may not be available to personally testify in Court during the
trial of a case in which he may be involved, and therefore the purpose is
prevent the loss or unavailability of the testimony.

B. The depositions are of two kinds:

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1. Depositions de bene esse: one filed after a case has already

been filed in court, i.e to preserve testimony in danger of
being lost before the witness can be examined in court

Examples:

a) the witness scheduled to leave abroad with no possibility of

returning
b) the witness is so sick and might die
2. Depositions perpetuam rei memoriam: one taken in anticipation
of a case not yet filed in court

A. The requirement of notice to the adverse party(ies) is essential. It cannot

be used against a party who was not named in the Petition or not issued a
notice of the date and place of the hearing.

B. The deposition may be taken by oral testimony or by written

interrogatories, as directed by the court.
1. In oral testimony, the court may designate before whom the
testimony shall be taken. The witness undergoes the stages of
direct, cross, re-direct t and re-cross, examinations, which are
duly recorded, including objections by the parties.
2. If the witness is no longer available for personal testimony
during the trial, the testimony as, recorded becomes his
testimony in court.

SEARCH AND SEIZURE

Section 1. Search warrant defined. – A search warrant is an order in

writing issued in the name of the People of the Philippines, signed by a judge
and directed to a peace officer, commanding him to search for personal property
described therein and bring it before the court.

 A search warrant is an order in writing issued in the name of the People of

the Philippines, signed by a judge and directed to a peace officer,
commanding him to search for personal property described therein and
bring it before the court.

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What is the concept of a search warrant?

 It is a criminal process akin to a mode of discovery

 It is a special and peculiar remedy, which is drastic in nature

Are search and seizures prohibited under the constitution?

 No. The constitutional guarantee embodied in Article 3, Section 2 of the

Constitution is not a blanket prohibition against all searches and seizures
as it operates only against unreasonable searches and seizures

When is the search or seizure unreasonable?

 A search and seizure are unreasonable if it is made without a warrant, or

the warrant was invalidly issued.
 In all instances, what constitutes reasonable or unreasonable search or
seizure is a purely judicial question determinable from a consideration of
the attendant circumstances.

What are the three situations wherein there must be finding of probable cause?

1. Probable cause in filing of an information

 Facts and circumstances that would engender a well-grounded
belief that a crime has been committed and the person to be charged is
probably guilty thereof
2. Probable cause in the issuance of a search warrant
 Facts and circumstances that would lead a reasonable discreet
and prudent man to believe that there has been a crime committed and the
things and objects connected to the crime committed are in the place to be
searched
3. Probable cause in the issuance of a warrant of arrest
 Facts and circumstances that would engender a well-grounded
belief that a crime has been committed and the person to be arrested
committed it

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Why are the requirements for the issuance of a search warrant more stringent
than the requirements for the issuance of a warrant of arrest?

 The right against unreasonable search and seizure is a core right implicit
in the natural right to life, liberty and property. Even in the absence of a
constitution, individuals have a fundamental and natural right against
unreasonable search and seizure under natural law.
 Moreover, the violation of the right to privacy produces a humiliating
effect that cannot be rectified anymore.
 This is why there is no other justification to speak of for a search, except
for a warrant.
 On the other hand, in a warrant of arrest, the person to be arrested can
always post bail to prevent the deprivation of liberty.

Sec. 2. Court where application for search warrant shall be filed. – An

application for search warrant shall be filed with the following:

(a) Any court within whose territorial jurisdiction a crime was committed.

(b) For compelling reasons stated in the application, any court within the
judicial region where the crime was committed if the place of the commission of
the crime is known, or 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.

Where should one file an application for search warrant?

• As a general rule, any court within whose territorial jurisdiction a crime

was committed BUT FOR COMPELLING REASONS stated in the
application, any court within the judicial region where the crime was
committed if the place of the commission of the crime is known, or any
court within the judicial region where the warrant shall be enforced.
 For example, a drug syndicate keeps his drugs in a warehouse in Pasay
for the reason that it has connections in Pasay and can easily get a tip
when the police officers will file for a search warrant. To avoid the drug
syndicate from getting a tip of the impending search, the police officers
apply for a search warrant in Makati stating the compelling reason.

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• 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. 3. Personal property to be seized. – A search warrant may be

issued for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense.

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References:
 http://www.pnp.gov.ph/index.php/resources/forms/forms-3
 https://www.philstar.com/opinion/2008/04/09/54995/mode-discovery
 https://batasnatin.com/law-library/remedial-law/evidence/1093-
perpetuation-of-testimony.html
 https://batasnatin.com/law-library/remedial-law/criminal-procedure/698-
search-and-seizure.html

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